J. S66039/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
MONTRAY CHERRY,                             :         No. 2293 EDA 2018
                                            :
                          Appellant         :


         Appeal from the Judgment of Sentence Entered July 19, 2018,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. MC-51-CR-0002492-2018


BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MARCH 05, 2020

        Montray Cherry appeals from the July 19, 2018 judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after appellant

was found guilty in a bench trial of indirect criminal contempt1 for violating a

temporary protection from abuse (“PFA”) order.         The trial court sentenced

appellant to a six-month probationary term. We affirm.

        The trial court set forth the following:

              Appellant’s conviction stems from violations of a
              temporary PFA order entered against [a]ppellant by
              the Honorable Daniel Sulman on December 19, 2017.
              The victim initially filed a PFA petition against
              [a]ppellant on August 29, 2017 and Judge Sulman
              issued a temporary PFA order after an ex parte
              hearing on that date. The victim’s PFA petition was
              dismissed two days later when she did not appear for
              the trial on that petition. She refiled her PFA petition

1   23 Pa.C.S.A. § 6114(a).
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          on December 19, 2017 and was again granted a
          temporary PFA order against [a]ppellant after an
          ex parte hearing. Only the December 19, 2017
          Temporary PFA Order (“Temporary PFA Order”)
          against [a]ppellant is relevant to this appeal.

          The Temporary PFA Order provided that [a]ppellant
          “shall not contact [the victim], or any other person
          protected under this Order, by telephone or by any
          other means, including through third persons.” The
          Order also evicted and excluded [a]ppellant from [the
          victim’s] property and specifically ordered [a]ppellant
          to stay away from her place of employment, a daycare
          center. Further, the Temporary PFA Order stated
          [a]ppellant “shall not abuse, harass, stalk or threaten
          any of the above persons in any place where they
          might be found.”

          The Temporary PFA Order against [a]ppellant also
          granted [the victim] temporary physical custody of
          the parties’ child. Though the written Temporary PFA
          Order did not specify how and when the child should
          be turned over to the victim, Judge Sulman orally
          instructed [a]ppellant to direct the child’s godfather to
          take the child to the 18th Police District by 6:00 P.M.
          for the custody exchange.

          The Temporary PFA Order expressly notified
          [a]ppellant of the consequences should he violate the
          Temporary PFA Order:

                [[a]ppellant] is hereby notified that the
                violation of this order may result in arrest
                for indirect criminal contempt, which is
                punishable by a fine of up to $1,000
                and/or up to six months in jail.
                23 P[a].C.S.A. § 6114. Consent of the
                [victim] to [appellant’s] return to the
                residence shall not invalidate this Order,
                which can only be changed or modified
                through the filing of appropriate court
                papers for that purpose. 23 P[a.]C.S.A.
                § 6108([g]).



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          ....

          [The victim] returned to her place of employment
          immediately after leaving the courthouse with her
          [T]emporary PFA Order.          Shortly thereafter,
          [a]ppellant — who had already been served with the
          [Temporary PFA] Order at issue — appeared at the
          daycare center where [the victim] worked and spoke
          to [the victim’s] boss for approximately thirty
          minutes.

          Later that same day, [a]ppellant arrived at the
          18th police district without their child. Upon talking to
          an officer, [a]ppellant eventually left and then
          returned to the police station with the child between
          9:00 and 10:00 P.M. After exchanging some words
          with [a]ppellant, the victim began walking back to her
          residence — about three blocks from the police
          station — with the child. Throughout her walk home,
          [a]ppellant slowly drove his car next to her and
          attempted to talk to her. Appellant eventually got out
          of the car and approached the victim. He then tried
          to grab her, and more words were exchanged.
          Appellant proceeded to get back into his car, drove to
          the victim’s residence, and again exited the vehicle
          and approached her outside her home.

          As the victim stood on her porch, [a]ppellant threw
          baby diapers in her direction and said the following:

                 You got something coming for you. Just
                 watch and see. You just made it worse.
                 Look, look, you’re not going to keep me
                 from seeing my son. This is why we’re
                 here today. You better get your good
                 lawyer because you’re going to need one.
                 My family got money. You just watch.
                 You just watch.

          [The victim] gave the police a statement which was
          substantially consistent with her testimony.         On
          January 25, 2018, [a]ppellant was arrested on
          charges of Contempt for Violation of a Court Order and
          Terroristic Threats. On July 19, 2018, the [trial court]


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               presided over a non-jury trial where both parties
               testified as to what occurred on the date in question.
               Th[e trial c]ourt found that [the victim’s] testimony
               was credible and that [a]ppellant’s testimony was not.

Trial court opinion, 3/15/19 at 1-5 (record citations and footnotes omitted).

      The record reflects that appellant was represented at trial by

Attorney Derek Alan Steenson.            Nothing in the record indicates that

Attorney Steenson sought to withdraw after appellant’s conviction. The record

further reflects that following his conviction, appellant filed a notice of appeal

on July 19, 2018.2 On August 9, 2018, the notice of appeal was docketed in

this court.

      By      correspondence    dated   August    9,     2018,   this   court   notified

Attorney Steenson      that    appellant’s   docketing    statement     was     due   by

August 23, 2018. By order entered on the trial court docket on August 14,




2 We note that the notice of appeal is a form notice of appeal from municipal
court to the Court of Common Pleas, but bears a handwritten notation that it
is an appeal from the judgment of sentence entered on July 19, 2018. We
further note that the notice of appeal is not executed. The trial court
concluded that appellant filed the notice of appeal pro se. (Trial court opinion,
3/15/19 at 3.)      Our review of the record, however, indicates that
Attorney Steenson filed the notice of appeal because the handwriting on the
notice of appeal matches the handwriting on Attorney Steenson’s executed
entry of appearance in the underlying criminal matter, which, we note, was
erroneously docketed as a “defense request for continuance newly retained or
appointed.”    (See “defense request for continuance newly retained or
appointed,” 4/26/18.)

       We further note that in its opinion, the trial court states that appellant
filed his notice of appeal on August 9, 2018. August 9, 2018, however, was
the date on which the notice of appeal was docketed in this court.


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2018,3 the trial court directed “[a]ppellant Montray Cherry” to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

within 21 days. The record is silent as to whether the Rule 1925(b) order was

served on Attorney Steenson, appellant, or both.               Having received no

response to this court’s request that Attorney Steenson complete a docketing

statement, this court entered an order on September 11, 2018, directing

Attorney Steenson to file a docketing statement by September 21, 2018. As

Attorney Steenson failed to do so, this court entered an order remanding the

case to the trial court to conduct a hearing to determine, among other things,

whether     Attorney Steenson    abandoned       appellant.4     (Order   of   court,

10/16/19.) The trial court held the hearing on November 8, 2018, at which

appellant, Attorney Steenson, and the Commonwealth appeared. (Trial court

“notice,” 11/15/18.) The trial court determined that appellant was eligible for

court-appointed counsel and appointed Attorney Steenson as appellate

counsel. The trial court then issued a second Rule 1925(b) order. Appellant

filed a timely response.      The trial court thereafter filed its Rule 1925(a)

opinion. This appeal is now ripe for our review.

        Appellant raises the following issues:

              1.    Did the [trial court] err regarding the required
                    establishment of both volition and wrongful

3We note that the trial court docket sheet reflects that the order was entered
on August 14, 2018, but that the order itself bears a time-stamp of
“August 20, 2018.”

4   We note that this court retained jurisdiction. (Order of court, 10/16/18.)


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                   intent as said elements relate to [appellant’s]
                   interaction with [the victim’s] boss?

            2.     Did the [trial court] err regarding the required
                   establishment of both volition and wrongful
                   intent as said elements relate to [appellant’s]
                   interaction with [the victim] at the 18th Police
                   District?

Appellant’s brief at 6.

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt. In applying [the above]
            test, we may not weigh the evidence and substitute
            our judgment for the fact-finder. In addition, we note
            that the facts and circumstances established by the
            Commonwealth need not preclude every possibility of
            innocence. Any doubts regarding a defendant’s guilt
            may be resolved by the fact-finder unless the
            evidence is so weak and inconclusive that as a matter
            of law no probability of fact may be drawn from the
            combined circumstances. The Commonwealth may
            sustain its burden of proving every element of the
            crime beyond a reasonable doubt by means of wholly
            circumstantial evidence. Moreover, in applying the
            above test, the entire record must be evaluated and
            all evidence actually received must be considered.
            Finally, the trier of fact while passing upon the
            credibility of witnesses and the weight of the evidence
            produced, is free to believe all, part or none of the
            evidence.

Commonwealth v. Brumbaugh, 932 A.2d 108, 109-110 (Pa.Super. 2007)

(citation omitted).

            A charge of indirect criminal contempt consists of a
            claim that a violation of an Order or Decree of court
            occurred outside the presence of the court. Where a
            PFA order is involved, an indirect criminal contempt


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               charge is designed to seek punishment for violation of
               the protective order. As with those accused of any
               crime, one charged with indirect criminal contempt is
               to be provided the safeguards which statute and
               criminal procedures afford.      To establish indirect
               criminal contempt, 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. at 110 (internal citations and quotation marks omitted).

      In his first issue, appellant claims that the evidence was insufficient to

support his conviction as it failed to demonstrate that he acted with volition

and wrongful intent to violate the Temporary PFA Order when he went to the

victim’s place of employment because when he went there, he spoke to the

victim’s boss and not to the victim. (Appellant’s brief at 7.) The Temporary

PFA Order, however, “specifically ordered [appellant] to stay away from” the

victim’s place of employment. (Temporary PFA Order, 12/19/17 at 2, ¶ 3.)

There is no dispute that appellant had notice that he was specifically ordered

to stay away from the victim’s place of employment and that he nevertheless

chose to go there. Therefore, appellant’s act of going to the victim’s place of

employment when ordered to stay away from that place was clearly volitional,

or knowingly made, and wrongful intent can be imputed. Consequently, this

claim fails.

      In his second issue, appellant claims that the evidence was insufficient

to support his conviction as it failed to demonstrate that he acted with volition


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and wrongful intent to violate the Temporary PFA Order when he went to the

18th Police District because he went there to “give the baby’s food and other

items to [the victim].” (Appellant’s brief at 8.) The trial court, however, found

that appellant “violated the harassment portion of paragraph one when he

followed [the victim] from the police station, went up to the [victim], and

threw diapers at her.”    (Trial court opinion, 3/15/19 at 13.)     There is no

dispute that appellant had notice that he was prohibited from harassing the

victim. Nevertheless, appellant chose to follow the victim, approach her, and

throw diapers at her. Appellant’s acts were clearly volitional, or knowingly

made, and wrongful intent can be imputed. Therefore, this claim fails.

      Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, it was sufficient to enable the trial court, sitting as

fact-finder, to find appellant guilty of indirect criminal contempt beyond a

reasonable doubt because it demonstrated that appellant acted with volition

and wrongful intent.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 3/5/20




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