J-S09043-19
                                 2020 PA Super 18


COMMONWEALTH OF PENNSYLVANIA,                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                Appellant                    :
                                             :
        v.                                   :
                                             :
EDWARD D. WILSON,                            :
                                             :
                Appellee                     :   No. 1458 WDA 2018

                   Appeal from the Order Dated September 20, 2018
                  in the Court of Common Pleas of Armstrong County
                 Criminal Division at No(s): CP-03-MD-0000237-2018

BEFORE:         PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.:           FILED JANUARY 31, 2020

        The Commonwealth appeals from the order dated September 20,

2018.        In that order, the trial court sua sponte vacated its July 23, 2018

judgment, which found Edward D. Wilson (Wilson) guilty of indirect criminal

contempt (ICC) for violating an emergency order entered pursuant to the

Protection from Abuse (PFA) Act, 23 Pa.C.S. §§ 6101-6122. We vacate the

September 20, 2018 order vacating the July 23, 2018 judgment, and

remand for reinstatement of the July 23, 2018 judgment finding Wilson

guilty of ICC and for sentencing.

        Wilson declined counsel at both the ICC hearing and the sentencing

hearing, and represented himself pro se. In a prior memorandum, we held

that the trial court erred by not conducting an on-the-record colloquy of




*Retired Senior Judge assigned to the Superior Court.
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Wilson’s waiver of his statutory right to counsel1 that comported with

Pa.R.Crim.P. 121, and we remanded for the trial court to conduct a hearing

to determine whether Wilson desired to proceed pro se or with counsel in

this appeal, after advising Wilson of his right to counsel in accordance with

Rule 121.   Commonwealth v. Wilson, 217 A.3d 439 (Pa. Super. 2019)

(unreported memorandum).

     Such a hearing occurred on June 7, 2019, and Wilson invoked his right

to counsel. However, the trial court neither determined whether Wilson was

indigent nor appointed counsel before returning the record to this Court. On

August 13, 2019, this Court directed the trial court to appoint counsel for

Wilson if it determined that Wilson was indigent. The trial court determined

Wilson was indeed indigent based upon his incarceration in a state

correctional institution and appointed counsel. Preston T. Younkins, Esquire,

from the Armstrong County Office of the Public Defender, entered his

appearance in this Court on August 15, 2019. This Court issued a briefing

schedule to provide Wilson with the opportunity to file an appellee’s brief by

September 30, 2019. Even though this Court provided notice to Wilson via

Attorney Younkins, Wilson did not avail himself of the opportunity to file a

brief or request an extension of time in which to file a brief.     Since the


1 See 23 Pa.C.S. § 6114(b)(3) (“The defendant shall not have a right to a
jury trial on a charge of ICC. However, the defendant shall be entitled to
counsel.”)


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deadline to file an appellee’s brief has long since passed, this matter is now

ripe for our resolution.

      In our prior memorandum, we set forth the facts of this case as

follows.

             In June 2018, C.J., who lived with Wilson and shares four
      minor children (Children) with him, filed an emergency PFA
      petition seeking protection from Wilson. In the petition, she
      averred that Wilson kept calling her and she would not answer.
      He showed up at the house demanding that she tell him what he
      did, and then struck her in the face. According to C.J., when she
      called out for Children to call 911, Wilson put his hand on her
      mouth to stop her from yelling. When C.J. and Wilson’s five-
      year-old son tried to protect her, Wilson threw a pogo stick.
      Emergency PFA Petition, 6/11/2018, at 1.

             On June 8, 2018, a magisterial district judge signed an
      order granting emergency PFA relief []. Emergency PFA Order,
      6/11/2018, at 1. In accordance with section 6110 of the PFA
      Act, following an ex parte hearing, the magisterial district judge
      found upon good cause that it was necessary to protect C.J. and
      Children from Wilson. Id.; 23 Pa.C.S. § 6110. The magisterial
      district judge ordered Wilson to: (1) refrain from abusing C.J.
      and Children; (2) refrain from contacting C.J. and Children; and
      (3) be evicted from the residence on Orr Avenue in Kittanning,
      Pennsylvania.     Emergency PFA Order, 6/11/2018, at 1.
      Thereafter, Appellant was served with the emergency PFA order.

             On June 11, 2018, the next business day, C.J. filed pro se
      a PFA petition with a verified statement of abuse. PFA Petition,
      6/11/2018. In the PFA petition, she provided more details about
      the June 8, 2018 incident to which she referred in her
      emergency PFA petition. Id. at 1-2. She also recounted prior
      abuse by Wilson. Id. at 2. In response to C.J.’s petition, the
      trial court entered a temporary PFA order and scheduled a
      hearing. Temporary PFA Order, 6/11/2018, at 1-2. However,
      after two attempts, the sheriff of Armstrong County was unable
      to serve Wilson with the PFA petition and temporary PFA order.
      Sheriff’s Return, 6/25/2018. Furthermore, on June 20, 2018,
      C.J. failed to appear for the PFA hearing, prompting the trial

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      court to dismiss the temporary PFA order and to dismiss the
      entire PFA matter without prejudice.     Order to Dismiss,
      6/20/2018, at 1.

             Meanwhile, on June 13, 2018, the Commonwealth had filed
      an ICC complaint against Wilson. ICC Complaint, 6/13/2018, at
      1. In the complaint, the Commonwealth accused Wilson of
      violating the emergency PFA order, stating that after he was
      served with the emergency PFA order, he called C.J.’s cell phone,
      used profanity, and yelled at her for obtaining a PFA against him.
      Id.

            On July 23, 2018, the trial court conducted a non-jury trial
      regarding the ICC complaint. Wilson appeared pro se. The
      Commonwealth called two witnesses: Officer Donald Blose of the
      Kittanning Borough Police Department and C.J. Wilson testified
      on his own behalf. At the conclusion of trial, the trial court
      entered an order adjudging Wilson to be in contempt, and
      ordered him to appear for sentencing. Order, 7/24/2018, at 1.

            At the September 20, 2018 sentencing hearing, Wilson
      again appeared pro se. During the hearing, the trial court sua
      sponte vacated the July 24, 2018 order finding Wilson guilty and
      dismissed the ICC complaint, stating that Wilson had
      “represented[ed] that the underlying PFA order[,] which gave
      rise to the [ICC] Complaint[,] ha[d] been dismissed.” N.T.,
      9/20/2018, at 8; Order, 9/20/2018, at 1.

             The Commonwealth timely filed a notice of appeal. Both
      the Commonwealth and the trial court complied with Pa.R.A.P.
      1925. The Commonwealth presents one issue on appeal: “Did
      the trial court err and/or abuse its discretion when it sua sponte
      vacated [Wilson’s ICC] conviction and dismissed the complaint at
      the time of sentencing?” Commonwealth’s Brief at 1 [].

Wilson, supra (unreported memorandum at 1-2) (footnotes omitted; some

capitalization altered).

      The PFA Act permits a court to hold an individual subject to a

protection order in contempt of such order and to punish the defendant in



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accordance with the law. 23 Pa.C.S. § 6114(a). This Court has described

the elements required for a finding of ICC as follows.

      Where a PFA order is involved, an [ICC] charge is designed to
      seek punishment for violation of the protective order.... 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.

Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007)

(some capitalization altered). “When reviewing a contempt conviction ... we

are confined to a determination of whether the facts support the trial court

decision. We will reverse a trial court’s determination only when there has

been a plain abuse of discretion.” Id. at 111 (citation omitted).

      At the ICC hearing, the Commonwealth introduced the following

evidence, beginning with Officer Blose’s testimony.        Officer Blose served

Wilson with the emergency PFA order at 2:00 p.m. on June 10, 2018. N.T.,

7/23/2018, at 5. Officer Blose hand delivered the order to Wilson in a side

alley outside the residence shared by Wilson and C.J.         Id. at 6.   During

service, Officer Blose told Wilson that Wilson could have no contact, direct or

indirect, with C.J. Id. at 5. Specifically, he told Wilson, “don’t call her, don’t

stop by the house, [and] don’t have anybody else call her for you, or it

would be a violation of the PFA.”     Id.   After serving Wilson, Officer Blose

went to the front porch of the house. Id. He told C.J. that he had served



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the emergency PFA order and to call 911 if there were any violations. Id.

According to Officer Blose, C.J.

      held up her phone and said, is this a violation? And I said, who
      is it? And she said, it’s [Wilson]. He called me, yelling at me,
      calling me a bitch. It’s him right now. So she put the phone up
      and let me listen, and I could hear him yelling at her. I could
      hear his voice. I am familiar with [] Wilson. I’ve known him for
      quite a few years. I told her, yeah, that’s a violation. I will try
      to locate him and I will file [an ICC] complaint.

Id. The call from Wilson occurred at approximately 2:25 p.m. – just twenty-

five minutes after Officer Blose had served Wilson with the emergency PFA

order and informed him not to contact C.J. Id. at 7. C.J. told Officer Blose

that she answered the phone because the call came from a blocked number.

Id. at 10.

      C.J. testified next. After obtaining the emergency order, C.J. initially

stayed in her camper in another town. Id. at 12. On June 10, 2018, C.J.

returned to the shared residence to gather Wilson’s clothes,2 and was

present when Officer Blose served Wilson with the PFA outside of the

residence. Id. at 12-13. After Wilson was served, Wilson left. Id. Shortly

thereafter, Wilson called C.J. from a number that was different from his

usual number. Id. at 13. Her phone identified the number as “[u]nknown

or blocked[.]”   Id. at 14.   She answered the call and recognized Wilson’s


2 C.J. did not indicate whether she did this on her own initiative in
anticipation of Wilson’s exclusion from the home, or whether she and Wilson
remained in contact and he requested her to gather his clothes.


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voice. Id. She said she did not remember the conversation, but she was

sure he called her something derogative and he was upset with her because

she had moved their jointly-owned boat to a different location.     Id.   She

agreed with Officer Blose that the call came after Wilson had been served

with the emergency PFA order. Id.

      Wilson, representing himself pro se, testified in his own defense.

According to Wilson, when he was speaking to Officer Blose, C.J. pulled up to

the house in her vehicle. Id. at 16. Shortly thereafter, Officer Blose served

him with the emergency PFA order. He admitted to calling C.J., stating he

did so “because she was taking the boat that was in both of our names. … I

was trying to work things out with [C.J.] to explain – I mean, why was she

taking the boat off the property where it was when nobody needed to do

that.” Id. at 16-17. Wilson also stated that “there is no more PFA involved

in the matter or anything like that.” Id. at 17.

      At the conclusion of testimony, prior to entering an order finding

Wilson guilty of ICC, the trial court stated, “[w]ell, the order directed you

have no contact, direct or indirect. A phone call is direct contact.” Id. at

18; see also Order, 7/24/2018, at 1.

      Approximately two months later, Wilson appeared for sentencing.

According to the notes of testimony, the sentencing hearing lasted a total of

eight minutes. The Commonwealth did not request a specific sentence, but

requested that the trial court consider the “very rocky relationship” between

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Wilson and C.J., his pending charges for assaulting C.J. and their son, his

newly-acquired charges of conspiracy for obstruction of justice and witness

intimidation regarding his alleged attempt to prevent C.J. and their son from

testifying in the assault matter, and his pattern of violent behavior against

C.J. and others. N.T., 9/20/2018, at 4-5.

      The trial court asked Wilson if there was anything he wanted to say.

Wilson, who again appeared pro se, responded by stating that C.J. had

“bonded [him] out” when he was arrested for aggravated assault against

another individual, and alleged that he and C.J. “ha[ve] been together ever

since.” Id. at 6. He claimed that C.J. wanted to drop the pending simple

assault charges against him for assaulting her, but the district attorney

threatened to charge C.J. if she dropped the simple assault charges.       Id.

Wilson then informed the trial court that while C.J. had obtained a PFA order

against him, she later “dropped” it, and there was no final order. Id. at 7.

      The clerk of court confirmed that there was an order to dismiss the

PFA matter on June 20, 2018. Id. at 8. Immediately upon hearing this, the

trial court sua sponte entered an order on the record dismissing the ICC

complaint and vacating the July 23, 2018 order finding Wilson guilty. Id.;

see also Order, 9/20/2018, at 1. The only explanation offered by the trial

court on the record at the time was the representation by Wilson that “the

underlying PFA order which gave rise to the [ICC complaint] has been

dismissed.” Id.

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     The trial court offered the following analysis in its Rule 1925(a)

opinion.

     In the instant case, the [trial court] initially determined that the
     Commonwealth had proven beyond a reasonable doubt that
     [Wilson] had violated the PFA [o]rder[3] on June 8, 2018,[4] a few
     minutes after having been served with it. The facts from the
     non-jury trial indicate that the period during which Officer Blose
     arrived at [the residence of Wilson and C.J.], served the PFA
     [o]rder on [Wilson], spoke with C.J., and heard [Wilson’s] voice
     on C.J.’s cellular phone, spanned only a few minutes. Indeed,
     [Wilson’s] testimony indicated that the events occurred almost
     simultaneously. Nevertheless, [the trial court] concluded that
     the Commonwealth had carried its burden because it essentially
     was undisputed that [Wilson] had called C.J. on her cellular
     telephone after having been served with the PFA [o]rder that
     prohibited all contact by whatever means.

            At sentencing, the [trial c]ourt discovered, for the first
     time, that the PFA [o]rder had been dismissed due to C.J.’s
     failure to appear at the final hearing on June 20, 2018. Thus,
     the PFA [o]rder was no longer in effect at the time of both trial
     and sentencing. Given the proximity in time of the service of the
     PFA [o]rder with the alleged violation, and further considering
     C.J.’s presence and interactions with [Wilson] as the [o]rder was
     being served, [the trial court] concluded that the guilty verdict
     ought not stand because of insufficient evidence to establish that
     [Wilson] acted with wrongful intent.          Rather, [Wilson]
     perceived that C.J. acted with ulterior motives in seeking
     the PFA [o]rder and did not believe she intended to
     enforce it. That perception was confirmed when C.J. later failed
     to appear at the PFA hearing.


3 As we discuss infra, it is unclear to which PFA order the trial court is
referring.

4The date of service of the emergency PFA order is unclear from the record.
The order was obtained on June 8, 2018, and Officer Blose testified he
served it on June 10, 2018. At any rate, the parties do not dispute that
service and the phone call occurred on the same day.


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             Although the [trial court] may not, post-verdict, reweigh
      the evidence, it may consider the issue of the sufficiency of the
      evidence. See Commonwealth v. Robinson, 33 A.3d 89, 94
      (Pa. Super. [] 2011). The [trial court] was not at any time, and
      ought to have been, advised as to the underlying circumstances
      regarding the parties’ relationship and the dismissal of the PFA.
      In the interests of justice, and to prevent the inclusion of the
      [trial court] and its resources in what clearly has been an
      ongoing spectacle of game-playing by these parties, the [trial
      court] vacated its prior verdict and dismissed the [ICC]
      complaint. Had the [trial court] been aware at trial, as it should
      have been, of the insufficiency of the evidence, it would not have
      entered the original guilty verdict. In the [trial court’s] view,
      justice required that it be vacated. As it is, the Commonwealth
      continues to litigate the contempt where the PFA is long
      abandoned and the parties reside in harmony.

Trial Court Opinion, 11/6/2018, at 4-5 (one citation omitted) (emphasis

added).

      On appeal, the Commonwealth argues that the trial court had no

authority to change its mind sua sponte post-verdict on the basis of a factual

re-determination.   Commonwealth’s Brief at 6 (citing Commonwealth v.

Parker, 451 A.2d 767, 769 (Pa. Super. 1982)).        In the Commonwealth’s

view, the trial court improperly re-deliberated its original verdict at the

sentencing hearing. Id. (citing Commonwealth v. Robinson, 33 A.3d 89,

94 (Pa. Super. 2011)).      This was in error, the Commonwealth posits,

because it had proved that Wilson had notice of an order prohibiting contact

with C.J., but he knowingly violated the no-contact order within a half-hour

of being served with the order, with his only defense being his concern about

his boat. Id. at 5. Finally, the Commonwealth notes that whether or not a



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final PFA order was granted is not relevant to whether Wilson violated a valid

emergency PFA by contacting C.J. Id. at 6. The Commonwealth requests

reinstatement of the ICC judgment and a remand for sentencing. Id. at 7.

      Before we delve into the merits, we first address the Commonwealth’s

ability to appeal from the September 20, 2018 order dismissing the ICC

complaint and vacating the prior order adjudicating Wilson guilty of ICC

without offending Wilson’s right to be free from double jeopardy. Such an

examination involves a question of law; thus, “our scope of review is plenary

and our standard of review is de novo.” Commonwealth v. Baldwin, 158

A.3d 1287, 1292 (Pa. Super. 2017) (citation omitted).

      “The Double Jeopardy Clause, applicable to the States through the

Fourteenth Amendment, provides that no person shall ‘be subject for the

same offense to be twice put in jeopardy of life or limb.’” Commonwealth

v. Jackson, 10 A.3d 341, 344-45 (Pa. Super. 2010) (citing U.S. Const.

Amend. V)). “Under the Double Jeopardy Clauses of the United States and

Pennsylvania Constitutions, as well as under the Pennsylvania Crimes Code,

a second prosecution for the same offense after acquittal is prohibited.”

Baldwin, 158 A.3d at 1292 (citing U.S. Const. Amend. V; Pa. Const. Art. I,

§ 10; 18 Pa.C.S. § 109(1)). In Pennsylvania, “[i]t is undisputed that double

jeopardy attaches to criminal contempt trials.” Commonwealth v. Zerphy,

481 A.2d 670, 672 n.4 (Pa. Super. 1984) (citing Cipolla v. Cipolla, 398




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A.2d 1053 (Pa. Super. 1979)). The purpose of the Double Jeopardy Clause

is to guarantee

     that the [s]tate shall not be permitted to make repeated
     attempts to convict the accused, thereby subjecting him to
     embarrassment, expense[,] and ordeal and compelling him to
     live in a continued state of anxiety and insecurity as well as
     enhancing the possibility that even though innocent he may be
     found guilty.

U.S. v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977) (citation and

quotation marks omitted).

     Accordingly, “[w]hen a successful post[-]acquittal appeal by the

prosecution would lead to proceedings that violate the Double Jeopardy

Clause, the appeal itself has no purpose” and is prohibited.       Smalis v.

Pennsylvania, 476 U.S. 140, 145 (1986); see also Commonwealth v.

Feathers, 660 A.2d 90, 92 (Pa. Super. 1995) (en banc) (“No matter how

erroneous, a verdict of acquittal cannot be reviewed without putting a

defendant twice in jeopardy.”).

     However, the United States Supreme Court has made a distinction, for

double jeopardy purposes, between an appeal from a judgment of acquittal

and an appeal from “a post[-]verdict ruling of law by a trial judge.” United

States v. Wilson, 420 U.S. 332, 352-53 (1975). Unlike an appeal from a

judgment of acquittal, correcting an error of law post-verdict does not “grant

the prosecutor a new trial or subject the defendant to the harassment

traditionally associated with multiple prosecutions.” Id. Accordingly, “when



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a judge rules in favor of the defendant after a verdict of guilty has been

entered by the trier of fact, the [g]overnment may appeal from that ruling

without running afoul of the Double Jeopardy Clause.”         Id.; see also

Smalis, 476 U.S. at 145 n.8 (explaining that “no double jeopardy problem

was presented in Wilson because the appellate court, upon reviewing

asserted legal errors of the trial judge, could simply order the jury’s guilty

verdict reinstated; no new factfinding would be necessary, and the

defendant therefore would not be twice placed in jeopardy”) (citation

omitted); Evans v. Michigan, 568 U.S. 313, 330 n.9 (2013) (noting the

holding in Wilson permits appeals       by the government if the result the

government is seeking is reinstatement of the verdict); Feathers, 660 A.2d

at 93-94 (holding that the government may appeal from a trial court’s post-

verdict order finding the evidence insufficient to sustain the jury’s verdict

and entering a judgment of acquittal in favor of the defendant because an

appellate reversal would not necessitate a retrial).

      In the instant case, the trial court entered a verdict of guilty. During

the sentencing hearing, the trial court, on its own, decided to vacate the

verdict and dismiss the ICC complaint. In a similar scenario, this Court has

held that the Commonwealth is entitled to appeal such a decision.          In

Parker, the trial court entered a guilty verdict following a bench trial. The

defendant did not file a post-verdict motion, but the trial court sua sponte

entered an order changing the verdict to not guilty.    Parker, 451 A.2d at

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770.   In such a situation, “[t]he challenged order is not truly a verdict of

acquittal, but an order purporting to change already recorded and docketed

verdicts of guilty, entered by a previous order, to verdicts of not guilty.” Id.

Because this Court was only reviewing the procedural propriety of the

subsequent order, and vacation of the challenged order would result in a

reinstatement of the original guilty verdict, this Court concluded that the

Commonwealth’s appeal was not barred by double jeopardy. Id.

       Having decided that the matter is appealable, we turn now to the

merits of whether the trial court was entitled to change the verdict sua

sponte at the sentencing hearing. The trial court suggests that the vacation

of the June 20, 2018 order was permissible because it determined at the

sentencing hearing that there was insufficient evidence to convict.        Trial

Court Opinion, 11/6/2018, at 4-5. We disagree.

       The Rules of Criminal Procedure provide that “[u]nder extraordinary

circumstances, when the interests of justice require, the trial judge may,

before sentencing, hear an oral motion in arrest of judgment, for a judgment

of acquittal, or for a new trial.” Pa.R.Crim.P. 704(B)(1). This Court does not

allow such motions to function “as a substitute vehicle for raising a matter

that should be raised in a post-sentence motion.”         Commonwealth v.

Grohowski, 980 A.2d 113, 115 (Pa. Super. 2009). “Rule 704(B) is intended

to allow the trial judge the opportunity to address only those errors so

manifest that immediate relief is essential.” Id. In order for Rule 704(B) to

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apply, however, the defendant must make an oral motion.         Robinson, 33

A.3d at 94. A trial court cannot act sua sponte to change a verdict pursuant

to Rule 704(B). Id. Simply put, “[t]he trial judge cannot alter the verdict

based upon a re[-]determination of credibility or a re-evaluation of the

evidence.” Commonwealth v. Gaither, 513 A.2d 1034, 1035 (Pa. Super.

1986).

        In the instant case, the record is clear that Wilson did not make an

oral motion pursuant to Rule 704, but rather the trial court acted sua sponte

after learning that C.J. did not appear for the final PFA hearing.        See

generally N.T., 9/20/2018.       Therefore, Rule 704 offers no support to the

trial court’s decision to vacate the guilty verdict.

        We observe that a trial court has some ability to modify or rescind an

order sua sponte pursuant to 42 Pa. C.S. § 5505. That statute permits a

court to modify or rescind any order within 30 days after its entry, so long as

an appeal from the order had not been permitted or taken. 42 Pa. C.S. §

5505.      Section 5505, however, prohibits a court from modifying or

rescinding an order where “otherwise provided or prescribed by law.”       Id.

This Court has determined that this language prohibits a trial judge from

reconsidering the facts sua sponte post-verdict. Parker, 451 A.2d at 770.

        In Parker, the trial court sua sponte entered an order stating that

subsequent to the verdict it had rendered after a bench trial, it had

reconsidered the facts, and decided it had reasonable doubts about Parker’s

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guilt.   In considering whether this was permissible on appeal, our Court

noted that a trial judge has no more authority over a verdict in a non-jury

trial than the judge does over a jury verdict. Id. In either situation, “the

authority of a trial judge following the recording of a verdict … is limited to

consideration of post-trial motions in arrest of judgment or the granting of a

new trial.”5 Id. This Court pointed out that “[h]ad defendant moved for an

arrest of judgment, the trial court would have been required to view the

evidence in the light most favorable to the Commonwealth as the verdict

winner    and   could   not   have   altered   the   verdict[]   based   upon   a

redetermination of credibility or a re-evaluation of the evidence.” Id. Thus,

once the verdict was recorded, the trial court could not on its own reconsider

or reweigh the evidence to change its verdict. Id. Since the trial court in

Parker expressly reconsidered the facts sua sponte, it exceeded its

authority, and this Court remanded for reinstatement of the guilty verdict.




5 At the time Parker was decided, Pa.R.Crim.P. 1124 governed challenges to
the sufficiency of the evidence and used terms such as demurrer and motion
in arrest of judgment. Rule 1124 was later revised to “eliminate[] the use of
the terms ‘demurrer’ and ‘motion in arrest of judgment.’” Feathers, 660
A.2d at 92. In their place, the rule used “‘motion for judgment of acquittal’”
in order to “standardize the terminology used for challenges to the
sufficiency of the evidence at all stages of the proceeding, consistent[] with
the practice in a majority of the states, as well as under the Federal Rules of
Criminal Procedure.” Id. Rule 1124 was renumbered as Rule 606 and
amended effective April 1, 2001. Note to Pa.R.Crim.P. 606. Rule 606
retains the term “motion for judgment of acquittal.” Pa.R.Crim.P. 606.


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      More recently, this Court considered in Robinson whether a trial court

may change a verdict sua sponte.      In that case, the trial court had found

Robinson guilty of theft by unlawful taking following a bench trial.          It

sentenced Robinson to 18 months of probation and deferred the issue of

restitution to a future hearing. At the restitution hearing, the trial court sua

sponte vacated Robinson’s judgment of sentence and entered a verdict of

not guilty, stating that “it had ‘failed to give due consideration to the weight

of character evidence.’” Robinson, 33 A.3d at 91 (record citation omitted).

      On appeal, Robinson insisted that the trial court had the authority to

change the verdict sua sponte because the timeframe for filing post-trial

motions and an appeal had not yet expired. This Court disagreed, citing to,

inter alia, Parker. 33 A.3d at 92-94. It further explained that

      a post-verdict court may not reweigh the evidence and change
      its mind as the trial court did herein. Although a post-verdict
      judge may question a verdict, his discretionary powers are
      limited to a determination of whether the evidence was sufficient
      to uphold the original verdict, and he may not alter the original
      verdict and substitute a new one. The trial court’s verdict must
      be accorded the same legal effect as a jury verdict. Post-trial,
      the court cannot re-deliberate as it is no longer the fact finder.
      Just as jurors are not permitted to testify as to the mental
      processes that led to their verdict, so is the trial court precluded
      from testifying as to its flawed thought process as a fact finder.

Robinson, 33 A.3d at 94.        Accordingly, this Court reversed the order

changing the verdict, remanded for reinstatement of the original guilty

verdict, and remanded for a hearing to complete the sentencing.




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      In the instant case, despite the trial court’s attempt to couch its

decision as a permissible exercise of its authority to rule on the sufficiency of

the evidence, it is clear that based on Parker and Robinson, what the trial

court really did was to re-evaluate the evidence sua sponte long after its role

as factfinder had ended, based upon its assumption that C.J. was

manipulating the system.

      The elements of ICC are straightforward: a sufficiently definite, clear,

and specific order; notice of the order; a volitional act; and wrongful intent.

Brumbaugh, 932 A.2d at 111.        In contempt matters, “wrongful intent can

be imputed by virtue of the substantial certainty that [one’s actions would

place one] in contact with [PFA petitioner] in violation of the PFA Order.”

Id. (finding evidentiary support for possession of wrongful intent where the

contemnor, knowing that he was under a PFA order prohibiting contact,

accepted the PFA petitioner’s invitation to attend a party with her);

Commonwealth v. Lambert, 147 A.3d 1221, 1227 (Pa. Super. 2016)

(finding wrongful intent satisfied by Facebook posts indirectly referencing the

petitioner the day following the entry of the PFA order).

      As the trial court recognized originally, Wilson plainly admitted

contacting C.J. shortly after being served with the PFA order.             N.T.,

7/23/2018, at 16-17. The evidence presented at the ICC hearing does not

support the trial court’s later finding that Wilson contacted C.J. due to his

belief that C.J. was attempting to manipulate the PFA system. In his own

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words, Wilson wanted to work things out with C.J. to prevent her from

taking the boat. Id.

      Even assuming arguendo that Wilson believed C.J. was attempting to

be manipulative, Wilson’s perception of C.J.’s motives simply does not

negate his plain intent to violate the order. For purposes of contempt, it is

the actions of the defendant that matter, not the actions of the PFA

petitioner.   Brumbaugh, 932 A.2d at 111.             The actions of Wilson

demonstrated his intent. It is undisputed that Wilson knew that the order

prohibited him from contacting C.J., but he ignored the order and called her

almost immediately.      Furthermore, he used a blocked number6 and

screamed profanities at her.    Although the trial court later discounted the

possibility that Wilson intended to violate the PFA order based upon the

proximity of the violation to service of the PFA, this only highlights Wilson’s

wrongful intent: he was told he could not contact her but immediately did it

anyway. See Lambert, 147 A.3d at 1227.

      Notwithstanding the trial court’s statement otherwise in its Rule

1925(a) opinion, the trial court was or should have been aware that a final


6 Specifically, C.J. testified that because she has Wilson’s cell phone number
saved in her phone, ordinarily her phone would identify the call as coming
from Wilson’s cell phone. N.T., 7/23/2018, at 13. However, on this
occasion, C.J. was unable to identify the source of the call because the call
came from an “unknown or blocked” number, suggesting that some
mechanism was used to hide the identity of the caller from C.J. until she
answered. Id.


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PFA had never been entered in the matter because Wilson had informed the

trial court at the ICC hearing that he was not subject to a current PFA. See

N.T., 7/23/2018, at 7.       However, what matters is not the whether a PFA

order was in effect at the time of the contempt hearing, but whether a valid

PFA order was in effect at the time of the alleged contempt. Stated another

way, the outcome of the final PFA hearing has no bearing on whether there

was a valid order prohibiting contact in effect at the time that Wilson called

C.J.   For the purpose of contempt, an emergency PFA order prohibiting

contact has the same validity as a final PFA order prohibiting contact. See

23 Pa.C.S. § 6110(a) (providing authority to hearing officer to grant

emergency     relief   in   accordance    with    section   6108(a)(6)   (prohibiting

defendant from having any contact with the plaintiff)).

       The tenor of the trial court’s opinion suggests that what prompted the

trial court to re-evaluate the evidence was its disapproval of C.J.’s decision

not to appear for the final PFA hearing. Despite an assumption by the trial

judge that C.J. did not appear at the final PFA hearing because she had

acted manipulatively in obtaining the emergency PFA order, there is

absolutely no evidence in the record supporting the trial court’s assumption.

Nor is there evidence in the record explaining why C.J. did not appear at the

final hearing. The only information in the record about the current relations

of Wilson and C.J. is a bald unsworn assertion by Wilson that C.J. and Wilson

had resumed their relationship and C.J. wished to drop the matter. Even if

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that were true, there is no support in the record for the trial court’s

proclamation that Wilson and C.J. “reside in harmony.” Trial Court Opinion,

11/6/2018, at 5. In fact, to the extent the record indicates anything at all, it

suggests that the opposite might be true, considering that C.J.’s PFA petition

details a history of abuse, see PFA Petition, 6/11/2018, at 1-2, and,

according to the Commonwealth, Wilson had pending charges of conspiracy

for obstruction of justice and witness intimidation based upon an alleged

attempt to prevent C.J. and their son from testifying in the assault matter.

It is not uncommon for victims of intimate partner violence to remain with or

return to their abusers for a myriad of complicated reasons, such as a dire

financial situation; a need for housing, help with co-parenting their children,

or assistance with a disability; fear of escalating violence or losing their

children;   religious   or    cultural   beliefs;    and/or   distorted   thinking   and

unhealthy reliance upon the abuser created by past abuse. See e.g., Why

Do   Victims    Stay?,       National    Coalition     Against   Domestic     Violence,

https://ncadv.org/why-do-victims-stay. Ultimately, even if C.J. and Wilson

had resumed their relationship, whether harmoniously or otherwise, their

relationship at the time of the sentencing hearing has no bearing upon

Wilson’s plain intent to violate the emergency PFA order months before.

      Accordingly, based upon the trial court’s impermissible sua sponte re-

evaluation of the evidence, we reverse the September 20, 2018 order, and

remand for reinstatement of the original guilty judgment and for sentencing.

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     Order reversed. Case remanded for reinstatement of guilty judgment

and sentencing. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 1/31/2020




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