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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MELVIN LYNCH

                         Appellant                   No. 1573 EDA 2014


           Appeal from the Judgment of Sentence April 24, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): MC-51-CR-0039189-2013


BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                               FILED JULY 15, 2016

      Melvin Lynch appeals from the judgment of sentence of six months

probation imposed by the trial court after it convicted him of indirect criminal

contempt. We affirm.

      On September 6, 2013, Chanel Jacobs obtained a Protection from

Abuse (“PFA”) order against Appellant, her former boyfriend.        That order

prohibited Appellant from abusing, harassing, stalking or threatening Ms.

Jacobs in any place where she might be found, and barred him from having

any contact with her at any location.         Specifically, the order evicted

Appellant from their residence on South Beechwood Street, in Philadelphia,

Pennsylvania, but provided an opportunity for him to remove his belongings

while under police supervision.
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       At approximately 2:00 p.m. on October 8, 2013, Appellant requested a

police escort to acquire his personal effects from the residence. 1       Police

officers arrived, and Appellant collected his belongings and moved them to a

neighbor’s house located a short distance down that same block.            After

Appellant removed his possessions, Officer Trang Le reminded him that he

could not return to the location. Appellant then left the property.

       Twenty minutes later, Officer Le received a call over the police radio to

return to the subject location. As she approached the domicile, Officer Le

observed Appellant pacing in the street directly in front of the property.

When he noticed Office Le returning to the house, Appellant began to walk

away. Officer Le then stopped and arrested Appellant. Ms. Jacobs remained

within the residence until Appellant’s arrest.

       Following a bench trial, the court convicted Appellant of indirect

criminal contempt and sentenced him to six months probation.          Appellant

timely appealed, and complied with the court’s direction to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.          The court

authored its Pa.R.A.P. 1925(a) opinion, and this matter is now ready for our

review.

       Appellant raises a single issue for our consideration:

____________________________________________


1
  The final PFA order indicates Appellant was to remove his property on
September 8, 2013. The record does not reveal a reason for this delay.



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             Did not the Commonwealth fail to present sufficient
      evidence to convict appellant on the charge of criminal contempt
      for violating a Protection from Abuse order because appellant did
      not violate any condition of the order, nor did he act with
      wrongful intent?

Appellant’s brief at 3.

      In analyzing a sufficiency challenge, we must determine “whether,

viewing all the evidence admitted at trial in the light most favorable to the

verdict winner, there is sufficient evidence to enable a fact-finder to find

every element of the crime beyond a reasonable doubt.” Commonwealth

v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015) (citations omitted). “In

applying the above test, we may not weigh the evidence and substitute our

judgment for that of the fact-finder. Id. In addition, the evidence “need not

preclude every possibility of innocence.” Id. The Commonwealth may meet

its burden by wholly circumstantial evidence and “any doubt 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.”         Id.    Moreover, “in applying

the above test, the entire record must be evaluated and all evidence actually

received must be considered.” Id. 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.” Id.

      The Protection from Abuse Act permits a court to punish and hold in

indirect criminal contempt a defendant who violates a PFA order. 23 Pa.C.S.

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§ 6114(a). 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.

Commonwealth v. Walsh, 36 A.3d 613, 618 (Pa.Super. 2012) (citation

omitted).

      Appellant’s sufficiency challenge is multifaceted.         Appellant first

contends that he did not violate the conditions of the PFA order, as the court

never specified how those conditions applied to his conduct.         Appellant’s

brief at 15. Appellant’s initial argument contests the trial court’s finding that

his mere presence in the street in front of the victim’s house violated the

PFA order.     He asserts that the PFA order barred his entry onto the

“premises,” which he argues does not extend past the property line, and

that he did not otherwise contact, harass, stalk, or threaten the victim. Id.

at 15-20.    The crux of Appellant’s contentions may be summarized in his

own words, “the trial court is itself attempting to expand the meaning of the

PFA conditions by using the word ‘location’ to suggest that the PFA [order]

bars [Appellant] not only from the house or property of [2XX0] S.

Beechwood, but from the general area around it. It does not.” Id. at 16.

We disagree.




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      Here, the terms of the PFA order clearly delineate the conduct

prohibited therein.   Appellant was not permitted to “abuse, stalk, harass,

threaten or attempt to use physical force . . . in any place where [Ms.

Jacobs] may be found.”      PFA Order, 8/6/13, ¶ 1.     Furthermore, the PFA

order “evicted and excluded [Appellant] from the residence at [2XX0] S.

Beechwood St., Phila, PA 19145,” granting him “no right or privilege to enter

or be present on the premises of [Ms. Jacobs].” Id. at ¶ 2.

      Officer Le testified that she initially arrived at the subject location in

order to escort Appellant onto the property so that he could retrieve his

personal belongings. N.T. Trial, 4/8/14, at 6. Appellant informed the officer

that her supervision was necessary under the terms of the PFA order. Id. at

7.   After he finished collecting his things, Appellant left the property and

went to a neighbor’s house.      Id. at 8-9; 24.     Subsequently, Officer Le

returned to the area and witnessed Appellant “pacing in the vicinity” of the

victim’s house. Id. at 15-16. During this incident, Ms. Jacobs remained in

her home, and exited only after the officer arrested Appellant. Id. at 12.

      Given the clear language restricting Appellant’s behavior, and the

testimony of Officer Le, the Commonwealth presented sufficient evidence to

prove that Appellant violated the terms of the PFA order.        The evidence

adduced at trial supports the inference that Appellant’s presence in the

vicinity of Ms. Jacobs’s residence prevented her from leaving her house until

police returned. In addition, we are not persuaded by Appellant’s argument

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that the parameters of the PFA order did not extend beyond the property

line of [2XX0] South Beechwood Street.       Appellant’s behavior was no less

threatening to the victim simply because it occurred a short distance beyond

the property line, rather than on the premises itself. Furthermore, the street

directly in front of Ms. Jacobs’s house is certainly a place where she “may be

found.” PFA Order, 8/6/13, ¶ 1. Therefore, Appellant’s first contention fails.

      Appellant next asserts that he had no wrongful intent when he stood

near Ms. Jacob’s home.     Id. at 21.   He maintains that he summoned the

police to return to the location so that he could retrieve an item accidently

left behind, and that, as a result, his actions were an attempt to follow the

terms of the PFA order. Id. at 22. Mindful that the trial court was free to

believe all, part, or none of Appellant’s testimony, Gonzalez, supra, we find

the Commonwealth presented sufficient evidence that Appellant acted with

wrongful intent.

      Instantly, Appellant knew he could not return to the property after

Officer Le departed. N.T. Trial, 4/8/14, at 29. He testified that the officer

told him to wait “right where [he] was at on the block.”            Id. at 25.

Nevertheless, Appellant returned to the area near the victim’s house without

police supervision.   Id. at 9.   Notably, Officer Le testified that Appellant

attempted to walk away from her vehicle as she approached him, id. at 11,

further bolstering the conclusion that Appellant willfully violated the terms of

the PFA order. Considered together, this evidence supports the conclusion

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that Appellant wrongfully intended to return to the victim’s residence in

defiance of the terms of the PFA order.

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

evidence adduced at trial established beyond a reasonable doubt that

Appellant intentionally engaged in conduct that violated the terms of the PFA

order.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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