J-S26039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

VICTOR JOSE FORRESTER

                            Appellant                   No. 1123 MDA 2014


             Appeal from the Judgment of Sentence June 12, 2014
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-MD-0000609-2014


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                 FILED MAY 15, 2015

        Victor Jose Forrester (“Appellant”) appeals from the judgment of

sentence entered in the Cumberland County Court of Common Pleas

following his bench trial conviction for indirect criminal contempt for violating
                                                                             1
an order entered pursuant to the Protection From Abuse (“PFA”) Act.                We

affirm.

        The trial court sets forth the relevant facts of this appeal as follows:

           Defendant and Heather Bingaman, [(“Victim”)], are former
           intimate partners who have a child together. They are
           subject to mutual [PFA] orders entered against them
           ordering that both parties, in relevant part, “shall not
           abuse, harass, stalk or threaten [the other party] in any
           place where they might be found.” Com. Ex. 1, PFA Order.


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1
    23 Pa.C.S. § 6114.
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       On June 2, 2014, [Victim] received in the mail the final
       custody order from Franklin County regarding [Appellant
       and Victim’s] son. Later that evening, at 9:06 p.m., she
       received a phone call from a number she did not
       recognize. When she answered, there was no response.
       One minute later, she called the number back to see if the
       caller would answer, but the call went to an automated
       voicemail system. Then, at 9:11 p.m., she received a
       second call from the same number with a male voice on
       the line saying “I'm going to fucking find you tonight and
       kill you, bitch.”   She recognized the voice as that of
       [Appellant].

       After receiving the threatening phone call, [Victim]
       contacted police and an officer came to her residence to
       file a report. At that time, she showed the officer her
       phone’s call log detailing the calls she received that
       evening.

       Early the next morning, at roughly 12:07 a.m., on June
       3rd, the Victim heard [Appellant’s] voice outside of her
       home and saw him with two other men across the street
       from her residence. She again called the police. Officer
       Christopher Palamara, of the Shippensburg Borough Police
       Department, responded to the call.        After receiving a
       description of [Appellant’s] location from [Victim], Officer
       Palamara found him shortly thereafter and confronted him.
       The Officer testified that as soon as he exited his patrol
       vehicle, [Appellant] immediately became aggressive and
       began yelling and cursing. The Officer also detected the
       odor of alcoholic beverages coming from [Appellant]. The
       Officer then took [Appellant] into custody and confiscated
       two cell phones he had on his person. Later, while holding
       [Appellant’s] cell phones, the officer called the phone
       number reported by [Victim] as the source of the
       threatening call. One of [Appellant’s] phones immediately
       lit up and began to vibrate indicating it was the source of
       the threatening call.

       At the time of the hearing, [Appellant’s] counsel noted that
       the only call on his cell phone’s call history for June 2,




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           2014 was one missed incoming call at 9:07 p.m.[2]
           [Appellant] denied deleting the record of his outgoing call
           history, [al]though he acknowledged that it was possible
           for him to do so. [Appellant’s] counsel further noted that
           at the time of the hearing, [Appellant’s] cell phone had no
           record of [his] alleged threatening calls to [Victim].
           According to [Victim], the reason for this was that her
           phone only retains a call history for three days.
           Nonetheless, the presence of those calls on her phone’s
           history on the night of the alleged calls was corroborated
           to by the testimony of Officer Palamara who had inspected
           the phone during his investigation of the PFA violation.

           As to [Appellant’s] presence in the vicinity of [Victim’s]
           residence that night, he testified that he was merely trying
           to demonstrate to his two companions the physical location
           of the events leading up to his previous PFA violation.

           At the close of testimony, the court made several
           credibility findings on the record and found the evidence
           demonstrated beyond a reasonable doubt that [Appellant]
           had violated the terms of his PFA.

Trial Court Opinion, filed September 17, 2014, at 1-3 (citations to the record

and unnecessary capitalization omitted).

        On June 10, 2014, the court conducted a bench trial, convicted

Appellant of indirect criminal contempt for violating the terms of his PFA, and

sentenced Appellant to 3-6 months’ incarceration.3          On July 8, 2014,

Appellant timely filed a notice of appeal. On July 9, 2014, the court ordered

____________________________________________


2
    This missed call was from Victim.
3
  The court also found Appellant had violated the terms of his parole for a
previous charge and directed him to complete AMEND, a non-violence
program, and abstain from the possession and consumption of alcoholic
beverages and illegal narcotics during the term of his parole.



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Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and he timely complied on July 29, 2014.

      Appellant raises the following issue for our review:

         DID   THE   COURT  ERR   WHEN   FINDING   THE
         COMMONWEALTH PRESENTED BEYOND A REASONABLE
         DOUBT EVIDENCE THAT [APPELLANT] VIOLATED AN
         ORDER OR DECREE OF COURT OUTSIDE THE PRESENCE
         OF THE COURT?

Appellant’s Brief at 7.

      Appellant argues the Commonwealth failed to present evidence of his

intent to be at Victim’s residence because there was no evidence that

Appellant knew where Victim lived. Further, he claims that he did not make

the phone calls to Victim and that there was insufficient evidence to

conclude Appellant violated the PFA volitionally and with wrongful intent.

We disagree.

      “Whether sufficient evidence exists to support the verdict is a question

of law; thus, [an appellate court’s] standard of review is de novo and [its]

scope of review is plenary.” Commonwealth v. Patterson, 91 A.3d 55, 66

(Pa.2014) cert. denied sub nom. Patterson v. Pennsylvania, 135 S. Ct.

1400 (2015).    When examining a challenge to the sufficiency of evidence,

we employ the following standard:

         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

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         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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

     Indirect criminal contempt is found when a “violation of an Order or

Decree   of   court   occurred   outside   the   presence    of   the    court.”

Commonwealth v. Padilla, 885 A.2d 994, 996 (Pa.Super.2005), appeal

denied, 897 A.2d 454 (Pa.2006). “Where a PFA order is involved, an indirect

criminal contempt charge is designed to seek punishment for violation of the

protective order.”    Commonwealth v. Brumbaugh, 932 A.2d 108, 110

(Pa.Super.2007) (quoting Id. at 996).

     To establish a claim of indirect criminal contempt, the Commonwealth

must prove the following four elements:

         (1) the order [in question] must be definite, clear, specific
         and leave no doubt or uncertainty in the mind of the
         person to whom it was addressed of the conduct

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          prohibited; (2) the contemnor must have had notice of the
          specific order or decree; (3) the act constituting the
          violation must have been volitional; and (4) the contemnor
          must have acted with wrongful intent.

Commonwealth v. Ashton, 824 A.2d 1198, 1203 (Pa.Super.2003)

(quoting Commonwealth v. Baker, 722 A.2d 718, 721 (Pa.Super.1998)

(en banc), affirmed, 766 A.2d 328 (Pa.2001)).

       An act is volitional if it is knowingly made. Brumbaugh, 932 A2d at

110.   Wrongful intent can be imputed by the substantial certainty that a

defendant would be in contact with a victim, in violation of a PFA order. Id.

       Here, Appellant concedes the PFA order prohibited him from contacting

Victim.   The Commonwealth presented testimonial evidence that Appellant

made a threatening phone call to Victim and was then present in her

neighborhood.    Victim testified that she heard Appellant’s voice over the

phone and a police officer testified that he looked at Victim’s call log on her

phone shortly after she had received the call and saw Appellant’s number.

After later apprehending Appellant, an officer called the number and

Appellant’s phone rang.     Further, an officer testified that he and another

officer found Appellant in Victim’s neighborhood shortly after she reported

his presence there. Although Appellant testified that he did not know where

Victim lived, he did not make the call, and his call log did not show his call to

Victim, he admitted to being in Victim’s neighborhood and being able to

erase numbers from his call log. The trial court was free to believe all, part

or none of the evidence, and it chose to believe Victim and the police

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officers.   When viewed in the light most favorable to the Commonwealth,

there is sufficient evidence to find every element of the crime of indirect

criminal attempt beyond a reasonable doubt. See Hansley, supra.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




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