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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER ALLEN LEACH                    :
                                               :
                       Appellant               :   No. 1596 WDA 2017

          Appeal from the Judgment of Sentence September 29, 2017
                 In the Court of Common Pleas of Blair County
             Criminal Division at No(s): CP-07-MD-0001570-2017


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                   FILED JUNE 27, 2018

        Christopher Allen Leach appeals from the judgment of sentence imposed

on September 29, 2017, in the Court of Common Pleas of Blair County.

Following a non-jury trial, the trial court found Leach guilty of indirect criminal

contempt from a Protection From Abuse (PFA) order1 and sentenced him to

pay the statutorily imposed costs of prosecution and a fine of three hundred

dollars ($300). The sole issue raised by Leach in this appeal is a challenge to

the sufficiency of the evidence. Based upon the following, we conclude the

evidence was insufficient to sustain Leach’s conviction for indirect criminal

contempt, and, accordingly, we vacate the judgment of sentence.




____________________________________________


1   See 23 Pa.C.S.A. § 6114(a).
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        The facts underlying Leach’s conviction are as follows.     On Friday

September 8, 2017, Danielle Dupuis obtained an Emergency PFA Order

(“Order”) against Leach at an ex parte hearing before Magisterial District

Judge Steven D. Jackson. See Order Granting Emergency Relief from Abuse,

9/8/2017, at 1. This action was a result of Leach’s September 6, 2017, arrest

for aggravated assault2 and related charges, of which Dupuis was the victim.

See N.T., 10/27/17, at 4. The Order prohibited Leach from contacting her,

and evicted him from their shared residence. See Order Granting Emergency

Relief from Abuse, 9/8/2017, at 1. On the evening of Friday, September 8,

2017, Leach posted bail for the above charges, and at 8:00 PM that same day,

Officer Fred Wasser served the Order on Leach at the prohibited residence.

See N.T., 10/27/2017, at 32-33.

        The Order stated, in relevant part: “These orders expire at the end of

the next business day the Court of Common Pleas deems itself available.

These orders will be immediately certified to the Court of Common Pleas,

which has the effect of commencing proceedings against you…”             Order

Granting Emergency Relief from Abuse, 9/8/2017, at 1. Over that weekend,

Leach claims he called the PFA office and the Sheriff, but neither office could

confirm the Order’s expiration date. See N.T., 10/27/2017, at 34-35.


____________________________________________


2   See 18 Pa.C.S.A. § 2702.




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       The “next business day” after the issuance of the Order was Monday,

September 11, 2017.3 Id. at 47. Thereafter, on September 12, 2017, Leach

returned to the prohibited residence to retrieve his belongings with his sister

and her boyfriend. See N.T., 10/27/2017, at 24-25. Dupuis was not home

at the time, and when Leach arrived, the locks were changed and the window

was covered with a wood panel. See id. at 17-18. His sister then called

Dupuis, alerting her to Leach’s presence at the residence and causing her to

call the police. See id. at 16-17. Officer Joseph Detwiler, who responded to

Dupuis’ call, testified that Leach was seen exiting the residence. See id. at

24. Additionally, a glass panel on the door of the residence had been broken

and the wood panel covering the window had been pried off. However, none

of Dupuis’ belongings were missing.            See id. at 20.   Upon questioning by

Officer Detwiler, Leach initially denied any knowledge of the PFA. See id. at

25. After confirming the existence of the Order, the officer arrested Leach.

See id. at 26-27.

       The case proceeded to a hearing conducted on September 29, 2017, at

the conclusion of which the trial court found Leach guilty of indirect criminal

contempt, and sentenced him to pay the statutorily imposed costs of


____________________________________________


3 While the Commonwealth suggests an extended Temporary PFA was granted
that day, there is nothing in the certified record to confirm this or to
demonstrate that Leach was properly served with a new order.        See
Commonwealth’s Brief at 8. The only evidence of the existence of a
Temporary Order is contained in a docket entry appended to the
Commonwealth’s brief. See id., Exhibit 1.

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prosecution and a three hundred dollar ($300) fine. Leach filed this timely

appeal and complied with the trial court’s order to submit a Pa.R.A.P. 1925(b)

concise statement of matters complained of on appeal.

      In his sole issue on appeal, Leach challenges the sufficiency of the

evidence supporting his conviction for indirect criminal contempt. See Leach’s

Brief at 8.

      Our standard of review of a claim challenging the sufficiency of the

evidence is as follows:

              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).

“When reviewing a contempt conviction … we are confined to a determination


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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. Moreover,

              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
              charge is designed to seek punishment for violation of
              the protective order… 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 (citations and quotation marks omitted).

       Leach argues the Emergency PFA was not “definite, clear, and specific”

because the expiration date of the Order was ambiguous.4 Leach’s Brief at 9.

Leach points out that the Order stated its expiration would occur “the end of

the next business day the Court of Common Pleas deems itself available,”

which he believed to be September 11, 2017, the day before his entrance onto

the property.     Id. at 5-8, quoting Order Granting Emergency Relief from

Abuse, 9/8/2017, at 1.

       Both the Commonwealth and the trial court agree that the Order expired

on Monday, September 11, 2017. See Commonwealth’s Brief at 7; Trial Court


____________________________________________


4Leach does not dispute that the conduct itself described by the Order, that
he was not to enter the residence, was unambiguous.

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Opinion, 11/28/2017, at 3.     The crux of the trial court’s ruling is that the

language in the Order, which states the dispute would be “immediately

certified to the Court of Common Pleas,” should have put Leach on notice that

the Emergency PFA would be extended into a Temporary PFA and would be in

effect past its stated expiration. Trial Court Opinion, 11/28/2017, at 3-4. The

trial court also found that Leach’s interaction with the police, during which he

lied and stated that he had no knowledge of any PFA, establishes he knew a

PFA could be in effect on September 12, 2017. See id. at 4. Moreover, the

court noted Leach’s calls to the PFA Office and Sheriff provided additional

support for its conclusion Leach was aware of the possibility that his conduct

could be a violation. See id. at 3-4.

      However, our review of the Order in question and relevant statutory

sections at issue reveals it was not definite that a Temporary PFA would be

granted to extend the existing Emergency Order.         Indeed, to extend an

Emergency PFA, the Court of Common Pleas must hold an ex parte hearing to

determine if an extended Temporary PFA is “necessary to protect the plaintiff

or minor children.” 23 Pa.C.S.A. § 6107(b). Petitions for Temporary Orders

are not required to be granted. See 23 Pa.C.S.A. § 6110(b) (stating that only

“necessary” orders will be continued). Leach could not have known whether

Dupuis’ petition for an extended order would be granted or denied, and it was

therefore unclear whether his entrance onto the property on September 12,

2017, was prohibited. Furthermore, there is no evidence in the certified record


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that the Order was extended.     Because of the language in the Emergency

Order indicating that it would expire at the end of the “next business day,”

and the lack of evidence concerning a replacement Order, we are constrained

to conclude it was not certain Leach’s conduct was prohibited by the PFA.

Accordingly, we agree with Leach that the Order was not “sufficiently definite,

clear, and specific” as to its expiration date, and hence he was not on notice

that his conduct would be prohibited on September 12, 2017. Brumbaugh,

supra, 932 A.2d at 110.

       Additionally, Leach argues he did not possess the requisite “wrongful

intent” to violate the PFA.   Leach’s Brief at 9.   “[W]rongful intent can be

imputed by virtue of the substantial certainty” that the defendant’s conduct

would be “in violation of the PFA Order.” Brumbaugh, supra, 932 A.2d at

111.   Trial courts must “use common sense and consider the context and

surrounding factors in making their determinations of whether a violation of a

court order is truly intentional before imposing sanctions of criminal

contempt.”    Commonwealth v. Haigh, 874 A.2d 1174, 1177 (Pa. Super.

2005) (emphasis in original), appeal denied, 887 A.2d 1240 (Pa. 2005).

       Leach maintains that because he did not intend to threaten Dupuis or

cause her harm, he did not possess wrongful intent. He contends he “only

retrieved his belongings” and “Dupuis was 70 miles away and was not

threatened in any way.” Leach’s Brief at 9. He relies on Haigh, supra, to

show that his lack of intent to do harm was material.


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      In Haigh, a panel of this Court reversed a defendant’s conviction for

indirect criminal contempt because the interaction between the defendant and

his estranged wife, who had obtained a PFA against him, took place in a

courtroom and was not threatening. Haigh, supra, 874 A.2d at 1178. The

defendant, who was shackled and escorted by a deputy, inquired about his

wife’s health in court. See id. at 1176. The wife testified that she did not

feel threatened by the exchange.       See id.   This Court reasoned that the

defendant did not possess wrongful intent because he did not “[intend] to

violate the final PFA order and because the infraction was both de minimis and

non-threatening.” Id. at 1178 (emphasis in original). Moreover, the panel

noted, in a footnote, that the act did not fit the definition of indirect criminal

contempt because it occurred in a courtroom. See id. at 1177 n.4.

      The Commonwealth insists the ruling in Haigh is limited to “the peculiar

circumstances of [that] case,” and is not applicable outside of the courtroom.

Commonwealth’s Brief at 9, quoting Haigh, 874 A.2d at 1178. We agree.

Furthermore, we note that in Brumbaugh, supra, a panel of this Court

upheld a defendant’s conviction of indirect criminal contempt even though the

purported victim did not object to the contact, and, in fact, invited the

defendant to the party he attended, which led to the violation.              See

Brumbaugh, supra, 932 A.2d at 110-111.               The panel concluded the

defendant’s “act was clearly volitional, or knowingly made,” because he knew




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with “substantial certainty” that by attending the party he would be violating

the PFA. Id. at 111.

      Although Leach’s reliance on Haigh is misplaced, we agree that the

evidence did not support a finding that he acted with wrongful intent. If the

Emergency PFA had still been in effect, Leach’s entry onto the property would

have been enough to establish wrongful intent, as in Brumbaugh. He does

not dispute that his conduct was volitional or that his entrance on the property

was prohibited under the terms of the PFA. Moreover, it is immaterial that he

was merely there to retrieve his belongings or that he did not mean to harm

or threaten Dupuis. However, as discussed above, the Emergency PFA had

expired by the time Leach entered Dupuis’ residence, and there was no

evidence presented that he knew the PFA had been extended. Because Leach

did not know with “substantial certainty” that he was in violation of the PFA,

we conclude he did not possess the requisite wrongful intent. Brumbaugh,

supra, 932 A.2d at 111.

      Accordingly, because we conclude the evidence was insufficient to

sustain Leach’s only conviction, we vacate the judgment of sentence.

      Judgment of sentence vacated.

      President Judge Gantman joins the memorandum.

      Judge Panella concurs in the result.



Judgment Entered.


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Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2018




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