J-E01013-16

                                2016 PA Super 83

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                    v.

ROBERT WAYNE TAYLOR, II,

                           Appellant                      No. 1723 WDA 2013


       Appeal from the Judgment of Sentence of September 24, 2013
            In the Court of Common Pleas of Armstrong County
           Criminal Division at No(s): CP-03-MD-0000212-2013


COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                    v.

ROBERT WAYNE TAYLOR, II,

                           Appellant                      No. 1724 WDA 2013


       Appeal from the Judgment of Sentence of September 24, 2013
            In the Court of Common Pleas of Armstrong County
           Criminal Division at No(s): CP-03-MD-0000197-2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
        LAZARUS, MUNDY, OLSON, OTT, and STABILE, JJ.

DISSENTING OPINION BY BENDER, P.J.E.:                     FILED APRIL 11, 2016

      While I agree with the Majority’s determination that the first three

elements   of   indirect   criminal    contempt   (ICC)    were   proven   by   the

Commonwealth, I disagree that the Commonwealth proved the fourth

element: that Appellant acted with wrongful intent. Therefore, I respectfully

dissent.
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      As the Majority points out, the PFA order filed against Appellant

precluded him from abusing, harassing, stalking, or threatening J.N.K. See

Majority Decision at 6 (quoting PFA Order, 5/18/12, at 1). In this context, I

would consider the wrongful intent element of ICC as requiring proof that

Appellant communicated with J.N.K. in order to abuse, harass, stalk, or

threaten her.   See Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa.

Super. 2012) (stating that to prove ICC of a PFA order that stated the

appellant “shall not abuse, harass, stalk or threaten any of the above

persons,” and prohibited the appellant from contacting the petitioner, the

Commonwealth was required to prove “that he knowingly and willfully made

threatening or harassing statements” to the petitioner) (emphasis

added). Additionally, this Court has stressed that,

      [i]t is imperative that trial judges 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. As
      we have stated:

         [A] determination of criminal contempt is a criminal
         conviction conferring on the contemnor all the negative
         characteristics of being a convicted criminal. The right to
         be free of the stigma of an unfounded criminal conviction
         is the hallmark of American jurisprudence.

Commonwealth v. Haigh, 874 A.2d 1174, 1177-78 (Pa. Super. 2005)

(emphasis in original) (quoting Commonwealth v. Baker, 722 A.2d 718,

722 (Pa. Super. 1998) (en banc)).




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        In Haigh, this Court reversed Haigh’s conviction of ICC of a PFA order,

which was based on his communicating with his wife in a non-threatening

manner during a court proceeding.           Haigh, 874 A.2d at 1177.      While I

acknowledge that Haigh’s holding rested on a very narrow factual basis, I

find it important that our sufficiency analysis focused on both Haigh’s intent,

and on the severity and type of communication that occurred. See id. at

1178 (reversing Haigh’s ICC conviction because “the record [did] not

support the determination that [Haigh] intended to violate the final PFA

order    and   because   the   infraction   was   both   de   minimis   and   non-

threatening….”) (emphasis in original).

        Undertaking a similar analysis in the present case compels me to

conclude that the evidence was insufficient to support either of Appellant’s

ICC convictions. First, in regard to the incident at Sheetz, “J.N.K. testified

that Appellant was ‘asking about what was going on with [another] house

[the parties’ jointly owned] and that [Appellant] wanted to move into it’ and

that Appellant ‘approached [her] in regards to the sale of the other house.’”

Majority Decision at 8 (quoting N.T., 7/29/13, at 10). This testimony does

not establish that Appellant’s communication with J.N.K. was abusive,

harassing, or threatening. Indeed, J.N.K. stated that Appellant told her he

did “not want to move into the other house if it [were] going to be a PFA

violation[,]” thus indicating that Appellant’s intent in communicating with her

was to avoid violating the PFA order. N.T. at 11. Moreover, the infraction

was de minimis and clearly non-threatening, as J.N.K. engaged in the

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conversation with Appellant rather than leaving the scene.             Therefore, I

would conclude that the evidence was insufficient to demonstrate that

Appellant acted with wrongful intent to support his conviction of ICC.

         Additionally, I believe it was an abuse of discretion for the trial court to

conclude that Appellant exhibited wrongful intent when sending the July 13,

2013 text message. The court found that Appellant’s purpose in sending this

message “was to discuss with [J.N.K.] the outstanding issues regarding their

jointly-held real property and to impress upon her [Appellant’s] desire to

come to a quick resolution.”        Trial Court Opinion (TCO), 12/13/13, at 6).

Again, this message was not sent to abuse, harass, stalk, or threaten J.N.K.,

and a text message communication (which J.N.K. was free to ignore) is even

more de minimis an infraction than the face-to-face exchange at the Sheetz

store.

         Furthermore, I also believe that the trial court’s interpretation of

Appellant’s message completely ignores his statement, “So if you could

please talk to her about it, me and the girls can start moving into it.”

N.T. at 6 (emphasis added).           Reading Appellant’s message as a whole

demonstrates that his purpose in communicating with J.N.K. was to discuss

the legitimate issue of their children’s housing.        Such communication was

permissible under the parties’ custody consent order.           Therefore, I would

reverse Appellant’s ICC conviction for this communication as well.

         In sum, I would conclude that the evidence was insufficient to sustain

either of Appellant’s two counts of ICC, and I would reverse his judgment of

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sentence on that basis.    I cannot agree with the Majority that these facts

justify Appellant’s being a convicted criminal, and subject to all the “negative

characteristics” that accompany that designation. Haigh, 874 A.2d at 1177.

Accordingly, I dissent.

      Judges Mundy and Ott join this Dissenting Opinion.




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