J-S21007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

COURTNEY MCGLINDEN,

                          Appellant                  No. 3240 EDA 2013


           Appeal from the Judgment of Sentence October 11, 2013
             In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): MC-51-MD-0002566-2013


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                           FILED AUGUST 21, 2015

       Courtney McGlinden appeals from the sentence of forty-five to ninety

days imprisonment that the trial court imposed after finding her in contempt

of court for failing to appear at a proceeding in a different criminal action

number. We reverse the judgment of sentence and remand for a new trial.

       There is no complaint or information in the certified record in this

action so we cannot ascertain the allegations upon which the charge at issue

herein is based. There is a trial transcript, which establishes that Appellant

was found guilty of one count of contempt of court for failing to appear on

three occasions at another criminal action number. Appellant was then

sentenced on an offense described in the sentencing order as one arising

under 42 Pa.C.S. § 4132(2), which provides that the courts in Pennsylvania

have the power to impose summary judgment for contempt of courts if there


*
    Retired Senior Judge assigned to the Superior Court.
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has been “[d]isobedience or neglect by officers, parties, jurors or witnesses

of or to the lawful process of the court.”

      The transcript of Appellant’s truncated bench trial reveals the

following. There were four other cases pending against Appellant; none of

the pertinent docket numbers was outlined.            Without objection, the

Commonwealth informed the trial court that Appellant previously was found

in contempt on three occasions due to her failure to appear at court

proceedings in unspecified actions. The Commonwealth then marked “as C-

1, the Quarter Sessions file, showing a FTA [failure to appear], 9/5/13, as

well as prior FTAs, 3/21/13 and 3/26/13, lifted by your Honor.”           The

Commonwealth then moved for entry of the Quarter Session file of the

unidentified action into evidence, and it asked that Appellant be found in

contempt.

      Appellant immediately objected, stating, “Your Honor, we would object

to the Quarter Sessions file.    It’s inadmissible hearsay, and incompetent

evidence.   The Commonwealth has not met its burden.”            N.T. Hearing,

9/12/13, at 4.    The court disregarded Appellant’s objection, to which the

Commonwealth offered no response, and it proceeded to find Appellant in

contempt. The court sentenced her to ninety days in jail and informed her

that she could file a post-trial motion and then appeal to this Court.




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      Appellant did file a post-sentence motion again raising, inter alia, the

allegation that the Quarter Session file constituted inadmissible hearsay

proof. She also complained about her sentence. On October 11, 2013, the

court vacated the ninety day term and re-resentenced Appellant to forty-five

to ninety days in jail.   It did not otherwise accord Appellant relief.   This

appeal followed. Appellant raises the following contentions:

      1. Was not the evidence insufficient to support the trial court's
      finding of criminal contempt, as there was no competent,
      admissible evidence that appellant was in willful disregard of a
      court order, or that she demonstrated an intentional
      disobedience or neglect of a lawful process?

      2. Did not the court err by allowing the Commonwealth, over
      objection, to read certain assertions from a computer screen
      purporting to have something to do with appellant, where a
      nexus was never proven between the assertions and appellant,
      and appellant was never identified as the person referred to on
      the computer screen and such incompetent evidence violated the
      rule against hearsay and Rules 803 and 901 of the Pennsylvania
      Rules of Evidence dealing with business records and
      authentication, as there was no Quarter Sessions file present or
      available to which the computer screen assertions purportedly
      referred?

      3. Did not the court err by allowing the Commonwealth, over
      objection, to introduce into evidence appellant's purported prior
      failures to appear and prior contempt convictions, which were
      then used as the basis to support the instant contempt finding,
      as such incompetent evidence violated rule 404(b) of the
      Pennsylvania Rules of Evidence?

Appellant’s brief at 3.

      Appellant first maintains that there was insufficient evidence to

support her conviction.      She suggests that the Commonwealth never

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physically possessed the Quarter Session file from the other case, which is

not included in the record on appeal, and that it was reading from a

computer screen at her trial.       She continues that the Commonwealth’s

statements about the contents of that file, which merely constituted

notations that she failed to appear in another action three times, were

insufficient to establish a violation § 4132(2).

      A person cannot be found in contempt under § 4132(2) unless the

person violated a definite, clear, and specific order leaving no doubt in that

person’s mind about the conduct that would violate it; had notice of the

order; purposefully violated the order; and acted with wrongful intent.

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

evidence does not establish “an intentional disobedience or an intentional

neglect of the lawful process of the court, no contempt has been proven.”

Id. at 940 (citation omitted).

      Appellant herein notes that the Commonwealth’s recitation on the

record failed to establish that she had been subpoenaed to appear on March

21, 2013, March 26, 2013, or September 5, 2013, and thus had actual

notice that her appearance was mandated and violated the subpoenas. She

continues that the trial court premised its finding of intentional disobedience

solely upon inadmissible prior bad acts evidence consisting of the fact that

she had been found in contempt on three prior occasions.        She maintains


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that this proof did not establish that she had notice that she had to appear

at that proceeding and failed to appear purposefully and with wrongful

intent.

      Initially, we address the Commonwealth’s position that Appellant’s

sufficiency issue is waived. It suggests that there was no indication at trial

that the district attorney was reading from a screen and that it was

incumbent upon Appellant to include the Quarter Session file, which

contained the documents necessary for a contempt finding and which was

marked and moved into evidence, in the record.

      We are constrained to agree with this position.    The Commonwealth

marked and moved into evidence what it represented was the Quarter

Session file in the other action. The trial transcript contains no support for

Appellant’s position that the district attorney was reading from a computer

screen and did not physically possess the file in question. Indeed, it appears

illogical for the Commonwealth to mark a computer screen and move a

computer screen into evidence. Appellant did not complain at trial that the

Commonwealth was merely reading from a computer screen nor did she

suggest that it was not in physical possession of the file itself.        She

maintained the Quarter Session file was hearsay.

      The Quarter Session file is missing from the certified record herein,

and since it is not in our certified record, we cannot review it to determine


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whether Appellant was issued subpoenas and thus was notified of her

requirement to appear and disregarded the court’s process.      Furthermore,

she did not object to the proof regarding willful misconduct consisting of the

Commonwealth’s representation to the trial court that Appellant had three

prior contempt findings. Thus, we find that Appellant’s sufficiency argument

is waived.     Commonwealth v. Spotti, 94 A.3d 367 (Pa.Super. 2014)

(where medical records were admitted into evidence to establish that victim

suffered serious bodily injury for purposes of aggravated assault, the

defendant’s failure to include the medical records in the certified record on

appeal resulted in waiver of sufficiency claim premised upon a lack of serious

bodily injury to the victim); see generally Commonwealth v. Powell, 956

A.2d 406, 423 (Pa. 2008) (it is the appellant’s responsibility to ensure that

the record contains the materials necessary to conduct appellate review;

when an appellant presents a claim dependent upon examination of items

not included in the record, the claim is waived).

       We do, however, find merit in Appellant’s second position, which is

that the Quarter Session file was hearsay and that the Commonwealth failed

to invoke any hearsay exception rendering it admissible.1     In reviewing a


____________________________________________


1
  Contrary to the Commonwealth’s position, this averment was included in
Appellant’s Pa.R.A.P. 1925(b) statement. Therein, Appellant raised the issue
(Footnote Continued Next Page)


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overruled hearsay objection, we are mindful that the “Admission of evidence

is a matter within the sound discretion of the trial court, and will not be

reversed absent a showing that the trial court clearly abused its discretion.”

Commonwealth v. Smerconish, 112 A.3d 1260, 1266 (Pa.Super. 2015).

      Pa.R.E. 802 states, “Hearsay is not admissible except as provided by

these rules, by other rules prescribed by the Pennsylvania Supreme Court,

or by statute.” Hearsay is defined as a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted. Pa.R.E. 801(c). A statement can be

oral or written, Pa.R.E. 801(a), and a declarant is the person who made the

statement. Pa.R.E. 801(b).

      In this case, the contents of the Quarter Session file contained

statements by people who were not testifying at trial.         Those written

statements were being offered for the truth of the matter asserted, that

Appellant was properly notified that her presence was mandated on three

occasions at this other case and that she did not appear on those dates


                       _______________________
(Footnote Continued)

that there was no competent admissible evidence produced in support of her
conviction. Since the Quarter Session file was the evidence upon which the
Commonwealth premised this conviction, the assertion in the Pa.R.A.P.
1925(b) statement encompassed the preserved hearsay objection raised at
trial and in a post-trial motion as to the inadmissibility of the Quarter
Session file.



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without offering any justification. Hence, the contents of the file constituted

hearsay. Appellant properly raised this objection, and the trial court abused

its discretion in overruling it in that the Commonwealth did not even invoke

any exception.

      Appellant, on appeal, notes that the Quarter Session file could be

admissible under the business record exception to the hearsay rule, which is

outlined in Pa.R.E. 803, exceptions to the rule against hearsay--regardless of

whether the declarant is available as a witness, thusly:

      (6) Records of a Regularly Conducted Activity. A record
      (which includes a memorandum, report, or data compilation in
      any form) of an act, event or condition if,

            (A) the record was made at or near the time by--or from
            information transmitted by--someone with knowledge;

            (B) the record was kept in the course of a regularly
            conducted activity of a “business”, which term
            includes    business,    institution,   association,
            profession, occupation, and calling of every kind,
            whether or not conducted for profit;

            (C) making the record was a regular practice of that
            activity;

            (D) all these conditions are shown by the testimony
            of the custodian or another qualified witness, or by a
            certification that complies with Rule 902(11) or (12)
            or with a statute permitting certification; and

            (E) neither the source of information nor other
            circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6).


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      Appellant continues by observing that the Commonwealth did not

satisfy the mandates for application of this rule since it did not present the

testimony of the custodian or another qualified witness or a certification

establishing the first three elements of the exception.

      The Commonwealth counters that Appellant waived this hearsay

objection by not objecting to the lack of a custodian or other qualified

witness. We disagree. Appellant properly objected to the admission of the

Quarter     Session file   as hearsay.      She   did not have     to   alert the

Commonwealth to which exception it could attempt to apply and then

specifically challenge its failure to satisfy the elements of the exception.

      The Commonwealth also maintains that the trial court could take

judicial notice of contents of the Quarter Session file, and it relies upon

Commonwealth v. Byrd, 472 A.2d 1141 (Pa.Super. 1984).               However, in

that case, the Quarter Sessions file was admitted into evidence without

objection. As a piece of evidence properly admitted without objection, the

trial court therein could, of course, rely upon the contents of the exhibit in

question.    However, a court may not take judicial notice of the record in

another case, even if the court is familiar with its contents. See

Richner v. McCance, 13 A.3d 950, 957 n. 2 (Pa.Super. 2011). In order to

be evidence upon which the court may rely, the record of the other action

must be admitted into evidence.       The Commonwealth moved the Quarter


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Sessions file in question into evidence, but Appellant did object based upon a

valid position that the file was hearsay. Hence, those materials should not

have been admitted, absent invocation and application of an appropriate

exception to the hearsay rule. Appellant is entitled to a new trial.

      In light of our disposition of Appellant’s second contention, we do not

need to reach the merits of her third position.

      Judgment of sentence reversed.          Case remanded.           Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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