J-S12011-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

RIGOALBERTO CHARRIEZ,

                          Appellant                   No. 2901 EDA 2013


             Appeal from the Judgment of Sentence May 31, 2013
         In the Court of Common Pleas of Philadelphia Municipal Court
              Traffic Division at No(s): MC-51-MD-0001717-2013


BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 09, 2015

       Rigoalberto Charriez appeals from the judgment of sentence of fifteen

to thirty days incarceration after the court found him guilty of criminal

contempt.1 We reverse.

       Appellant appeared for court on May 31, 2013, for a bench warrant

hearing. The Commonwealth asked that Appellant be held in contempt and

moved for the introduction of a May 14, 2013 bench warrant. Thereafter,

Appellant’s counsel argued that Appellant’s failure to appear was not


1
    The trial court’s written sentencing order inconsistently states that
Appellant is to be confined for a minimum of five days and a maximum of
ten days, but also provides for immediate parole after serving fifteen days.
The written order is clearly in error and the oral order specified a sentence of
fifteen to thirty days. While ordinarily the written order controls, see
Commonwealth v. Brooker, 103 A.3d 325, 329 n.4 (Pa.Super. 2014),
here it is apparent from the face of the order that it is incorrect.
*
    Former Justice specially assigned to the Superior Court.
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intentional and that Appellant had been transporting cars to Pittsburgh for

his job when his work truck broke down on May 12, 2013.           Appellant’s

attorney indicated that Appellant’s supervisor was present in the courtroom

to testify on his behalf and that Appellant had documentation of these

alleged facts. The trial court found Appellant in contempt solely based on

the introduction of the bench warrant and declined to permit Appellant to

introduce evidence.

      The court entered an oral order sentencing Appellant to fifteen to

thirty days incarceration.   Appellant timely filed a post-sentence motion

alleging that the court deprived him of due process by preventing him from

presenting evidence. The court denied that motion by operation of law. This

timely appeal ensued. The trial court directed Appellant to file and serve a

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

Appellant complied, asserting a sufficiency of the evidence claim and

reiterating his due process position.

      The trial court authored its Rule 1925(a) opinion, erroneously

concluding that Appellant failed to preserve the issues on appeal.         A

sufficiency claim may be brought for the first time in a Rule 1925(b)

statement.    Pa.R.Crim.P. 606(A)(7); In re D.S., 39 A.3d 968, 972 (Pa.

2012). Further, Appellant did attempt to introduce evidence and asked to

call his client as a witness, but was told that his case was over.   Counsel

then stated, “For the record, it is my understanding that I am not allowed to

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introduce evidence, Your Honor?”        N.T., 5/31/13, at 6-7.       The court

responded, “For the record your case is over with.”          Id. at 7.      Thus,

Appellant adequately objected and raised his due process issue in both a

timely post-sentence motion and in his Rule 1925(b) statement. Appellant

repeats his claims from his Rule 1925(b) statement as follows.

      1. Was not the evidence insufficient to support the trial court’s
         finding of criminal contempt, where there was no competent
         record evidence that appellant failed to abide by a court
         order, and where there was no evidence that any such failure
         was intentional?

      2. Did not the trial court, in conducting appellant’s contempt
         hearing, violate appellant’s right to due process by refusing to
         allow him to call witnesses and present evidence in his
         defense?

Appellant’s brief at 3.2

      Appellant’s first issue implicates the sufficiency of the evidence against

him. In conducting a sufficiency of the evidence review, we view all of the

evidence admitted, even improperly admitted evidence. Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We consider such

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

winner, drawing all reasonable inferences from the evidence in favor of the


2
   We note that the Commonwealth was granted a two-month extension to
file its brief in this matter by January 5, 2015. The Commonwealth failed to
comply, submitting an untimely brief on February 10, 2015, after this writing
was originally circulated. Since the Commonwealth’s brief was untimely, we
do not consider it. See Commonwealth v. Beasley, 741 A.2d 1258, 1261
n.8 (Pa. 1999); Commonwealth v. Stokes, 38 A.3d 846, 858 n.7
(Pa.Super. 2011)

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Commonwealth.       Id.   When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged,

the sufficiency claim will fail. Id.

      The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   In addition, the Commonwealth can prove its case by circumstantial

evidence.    Where “the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

circumstances[,]” a defendant is entitled to relief.         This Court is not

permitted “to re-weigh the evidence and substitute our judgment for that of

the fact-finder.” Id.

      Instantly, the court found Appellant guilty of contempt of court. The

trial court’s power to impose contempt in this case is derived from 42

Pa.C.S. § 4132. If a court finds a person in contempt under § 4132, it is

considered criminal rather than civil contempt. Stewart v. Foxworth, 65

A.3d 468 (Pa.Super. 2013). The court found Appellant to have violated §

4132(2), which permits punishment for “[d]isobedience or neglect by

officers, parties, jurors or witnesses of or to the lawful process of the court.”

Contempt under § 4132(2) can be sustained only if the following four

elements are present:

            (1)    The court's order or decree must be definite,
                   clear, specific and leave no doubt or



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                   uncertainty in the mind of the person to whom
                   it was addressed of the conduct 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.

                   Further, unless the evidence establishes an
                   intentional disobedience or an intentional
                   neglect of the lawful process of the court, no
                   contempt has been proven.         Moreover, a
                   conviction for criminal contempt requires proof
                   beyond a reasonable doubt.

Commonwealth v. Kolansky, 800 A.2d 937, 940 (Pa.Super. 2002)

(quotation, quotation marks, and citations omitted).

        The entirety of the evidence presented by the Commonwealth is as

follows.   “Your Honor, the Commonwealth would ask that you find the

Defendant in Contempt of Court.      We would mark and move as C-1 the

Quarter Sessions file indicating a prior bench warrant of May 14 th, 2013.”

N.T.,   5/31/13,   at   2.   No   other   evidence   was   introduced   by   the

Commonwealth.      The certified record on appeal does not even contain a

copy of the bench warrant in question. We find introduction of the bench

warrant alone does not constitute proof beyond a reasonable doubt that

Appellant intentionally disobeyed the lawful process of the court. The mere

failure to appear does not establish wrongful intent. See Commonwealth



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v. Washington, 368 A.2d 263, 265 (Pa. 1977) (“At best, the evidence in

this case establishes only noncompliance with certain court orders. That

alone is insufficient to prove contempt.”).

      The Commonwealth’s evidence was insufficient. The court committed

an error of law and abused its discretion in finding Appellant in contempt.

Since the evidence was insufficient, Appellant is entitled to discharge and we

need not reach his second issue.

      Judgment of sentence reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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