J-A19026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
        Appellee

                      v.

ROBERT WAYNE TAYLOR, II,

        Appellant                                     No. 1723 WDA 2013


      Appeal from the Judgment of Sentence Entered September 24, 2013
              In the Court of Common Pleas of Armstrong County
              Criminal Division at No(s): CP-03-MD-0000212-2013


COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
        Appellee

                      v.

ROBERT W. TAYLOR, II,

        Appellant                                     No. 1724 WDA 2013


      Appeal from the Judgment of Sentence Entered September 24, 2013
              In the Court of Common Pleas of Armstrong County
              Criminal Division at No(s): CP-03-MD-0000197-2013

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 26, 2014

        Appellant, Robert Wayne Taylor, II, appeals from the September 24,




*
    Former Justice specially assigned to the Superior Court.

                                        1
J-A19026-14


imposed after he was convicted following a non-jury trial of two counts of

indirect criminal contempt (ICC). After careful review, we reverse.

      The trial court summarized the facts and procedural history of this

case as follows:


        initiated a protection from abuse action against [Appellant]
        on or about September 26, 2011. A final protection from


        contact [Ms. Kochman], or any other person protected
        under this order, by telephone or by any other means,
        including
        communication restriction in the PFA Order is found in

        message contact for the purposes of custody scheduling
        only, without said contact constituting violation of this
        order. All other terms of this order remain in effect during

        separate custody consent order, paragraph 6 of which

        with   one    another   for    legitimate   issues   involving   the


        On June 21, 2013, [Ms. Kochman] and [Appellant] met at
        the Sheetz convenience store in Kittanning, Pennsylvania

        children     exited   Ms.     Ko

        approximately four vehicle[] widths apart. [Appellant] then
        asked one of the children to ask Ms. Kochman whether she
        had spoken with her lawyer about matters concerning the
        sale of


        Kochman then exited her vehicle and began speaking to
        [Appellant] about the house. After the pa
        [Appellant] went into the store with the children. Based on
        his indirect communication with Ms. Kochman, through the


                                           2
J-A19026-14

        child, [Appellant] was charged with [ICC] on or about July
        2, 2013 (No. MD-0000197-2013).

        On or about July 13, 2013, [Appellant] sent Ms. Kochman a
        text message, again with regard to the marital residence. It
        read[] as follows:

           I also sent an email to your lawyer today about the
           house on 4th Avenue. The bank said if you get
           paperwork done I told Cynthia about they will take
           your name off. So if you could please talk to her
           about it, me and the girls can start moving into it.
           Thanks. I will tell them. They said they love you.

        Based on the contents of the text message, [Appellant]
        again was charged with [ICC] on or about July 16, 2013
        (No. MD-000212-2013).

        The [trial court] conducted a bench trial on both counts of
        indirect criminal contempt on July 29, 2013. At the trial,
        the parties generally did not dispute what occurred at the
        Sheetz store on June 21, 2013 or the contents of the text
        message sent by [Appellant] on July 13, 2013. The [trial
        court] ultimately found that the Commonwealth had proven
        beyond a reasonable doubt that [Appellant] had violated the
        PFA Order on both counts. The [trial court] concluded that
        the subject of both communications was not a legitimate
        concern regarding the children but a legal matter regarding
                                                            divorce
        proceeding.

        [On September 24, 2013, t]he [trial court] sentenced

        County Jail, together with a $300.00 fine on both counts,
        the sentences to run concurrently. [Appellant] filed notices
        of appeal and concise statements of [errors] complained of
        on appeal at both case numbers on October 24, 2013 and
        November 18, 2013.

Trial Court Opinion, 12/13/13, at 1-4 (unnecessary capitalization and

footnote omitted).

     On appeal, Appellant presents the following two issues for our review:

                                     3
J-A19026-14



        I.     Did the trial court err and/or abuse its discretion in
               failing to consider the custody modification entered
               May 22, 2013 prior to the filing of the subject indirect
               criminal contempt charge[s] which allowed for text
               communication for any legitimate issue involving the
               children?

        II.    Did the trial court err and/or abuse its discretion in
               sentencing [Appellant] to a [concurrent] sentence [of]
               three months [of] incarceration and fines of $300.00?

                                ssary capitalization omitted).

      In his first issue, Appellant essentially challenges the sufficiency of the

evidence to sustain his convictions of ICC. Our standard of review of such

claims is well-settled:

        In reviewing the sufficiency of the evidence, we view all the
        evidence admitted at trial in the light most favorable to the
        Commonwealth, as verdict winner, to see whether there is
        sufficient evidence to enable the factfinder to find every
        element of the crime beyond a reasonable doubt. This
        standard is equally applicable to cases where the evidence
        is circumstantial rather than direct so long as the
        combination of the evidence links the accused to the crime
        beyond a reasonable doubt. Although a conviction must be
        based on more than mere suspicion or conjecture, the
        Commonwealth need not establish guilt to a mathematical
        certainty. Moreover, when reviewing the sufficiency of the
        evidence, this Court may not substitute its judgment for
        that of the fact-finder; if the record contains support for the
        convictions they may not be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013) (internal

citations, quotations, and brackets omitted).

      Pursuant to 23 Pa.C.S. § 6114,

        [w]here the police, sheriff or the plaintiff have filed charges
        of indirect criminal contempt against a defendant for

                                       4
J-A19026-14

           violation of a protection order issued under this chapter, a
           foreign protection order or a court-approved consent
           agreement, the court may hold the defendant in indirect
           criminal contempt and punish the defendant in accordance
           with law.




Commonwealth v. Jackson, 10 A.3d 341, 346 (Pa. Super. 2010) (citation

omitted). To establish ICC, the Commonwealth must prove:

           1) the order was sufficiently definite, clear, and specific to
           the contemnor as to leave no doubt of the conduct
           prohibited; 2) the contemnor had notice of the order; 3) the
           act constituting the violation must have been volitional; and
           4) the contemnor must have acted with wrongful intent.

Id. (citation omitted).

      On appeal, Appellant solely challenges the sufficiency of the evidence



maintains that his June 21, 2013 communication with Ms. Kochman at the

Sheetz store, and his July 13, 2013 text message to her, were both for the




matters involving                       -being or custody schedule, but instead

was to discuss with Ms. Kochman the outstanding issues regarding their

jointly-




                                         5
J-A19026-14




communicating with Ms. Kochman, we disagree with its legal determination

                                                             ext message to



attorney] about it, me and the girls can start moving into [the house]



communication with her at the Sheetz store, Ms. Kochman testified that



                                                                       Id. at

                                                 -held real property

which Appellant was communicating with Ms. Kochman was a home that



trial that he was trying to move into that residence, which was closer to Ms.



                            Id. at 17. Appellant testified that the bank was



paperwork permitting Appellant to refinance the mortgage on the home. Id.



                                                                 Id.



Ms. Kochman, we cannot agree with the court that his intent was wrongful.




                                     6
J-A19026-14


                                                         n the record that

Appellant communicated with Ms. Kochman for the purpose of abusing,

stalking, harassing, or threatening her, as prohibited by the PFA petition. 1

Accordingly, the evidence was insufficient to prove that Appellant possessed

wrongful intent in communicating with Ms. Kochman.        Thus, we reverse




     Judgment of sentence reversed. Jurisdiction relinquished.

     Justice Fitzgerald joins in the memorandum.

     Judge Olson files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2014



1
   See Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa. Super. 2012)
(indicating that to prove ICC of a PFA

prohibited the appellant from contacting the petitioner, the Commonwealth

harassing                               Commonwealth v. Haigh, 874
A.2d 1174, 1177 (Pa. Super. 2005) (reversing ICC conviction based on the

inter alia                     ieve that he was threatening [his wife],
and neither she nor any one [sic] else in the courtroom heard [the
defendant] threaten [his wife] or otherwise make any threatening



                                     7
