J-A19026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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 Entered 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 W. TAYLOR, II,
Appellant No. 1724 WDA 2013
Appeal from the Judgment of Sentence Entered September 24, 2013
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-MD-0000197-2013
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 26, 2014
Appellant, Robert Wayne Taylor, II, appeals from the September 24,
*
Former Justice specially assigned to the Superior Court.
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imposed after he was convicted following a non-jury trial of two counts of
indirect criminal contempt (ICC). After careful review, we reverse.
The trial court summarized the facts and procedural history of this
case as follows:
initiated a protection from abuse action against [Appellant]
on or about September 26, 2011. A final protection from
contact [Ms. Kochman], or any other person protected
under this order, by telephone or by any other means,
including
communication restriction in the PFA Order is found in
message contact for the purposes of custody scheduling
only, without said contact constituting violation of this
order. All other terms of this order remain in effect during
separate custody consent order, paragraph 6 of which
with one another for legitimate issues involving the
On June 21, 2013, [Ms. Kochman] and [Appellant] met at
the Sheetz convenience store in Kittanning, Pennsylvania
children exited Ms. Ko
approximately four vehicle[] widths apart. [Appellant] then
asked one of the children to ask Ms. Kochman whether she
had spoken with her lawyer about matters concerning the
sale of
Kochman then exited her vehicle and began speaking to
[Appellant] about the house. After the pa
[Appellant] went into the store with the children. Based on
his indirect communication with Ms. Kochman, through the
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child, [Appellant] was charged with [ICC] on or about July
2, 2013 (No. MD-0000197-2013).
On or about July 13, 2013, [Appellant] sent Ms. Kochman a
text message, again with regard to the marital residence. It
read[] as follows:
I also sent an email to your lawyer today about the
house on 4th Avenue. The bank said if you get
paperwork done I told Cynthia about they will take
your name off. So if you could please talk to her
about it, me and the girls can start moving into it.
Thanks. I will tell them. They said they love you.
Based on the contents of the text message, [Appellant]
again was charged with [ICC] on or about July 16, 2013
(No. MD-000212-2013).
The [trial court] conducted a bench trial on both counts of
indirect criminal contempt on July 29, 2013. At the trial,
the parties generally did not dispute what occurred at the
Sheetz store on June 21, 2013 or the contents of the text
message sent by [Appellant] on July 13, 2013. The [trial
court] ultimately found that the Commonwealth had proven
beyond a reasonable doubt that [Appellant] had violated the
PFA Order on both counts. The [trial court] concluded that
the subject of both communications was not a legitimate
concern regarding the children but a legal matter regarding
divorce
proceeding.
[On September 24, 2013, t]he [trial court] sentenced
County Jail, together with a $300.00 fine on both counts,
the sentences to run concurrently. [Appellant] filed notices
of appeal and concise statements of [errors] complained of
on appeal at both case numbers on October 24, 2013 and
November 18, 2013.
Trial Court Opinion, 12/13/13, at 1-4 (unnecessary capitalization and
footnote omitted).
On appeal, Appellant presents the following two issues for our review:
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I. Did the trial court err and/or abuse its discretion in
failing to consider the custody modification entered
May 22, 2013 prior to the filing of the subject indirect
criminal contempt charge[s] which allowed for text
communication for any legitimate issue involving the
children?
II. Did the trial court err and/or abuse its discretion in
sentencing [Appellant] to a [concurrent] sentence [of]
three months [of] incarceration and fines of $300.00?
ssary capitalization omitted).
In his first issue, Appellant essentially challenges the sufficiency of the
evidence to sustain his convictions of ICC. Our standard of review of such
claims is well-settled:
In reviewing the sufficiency of the evidence, we view all the
evidence admitted at trial in the light most favorable to the
Commonwealth, as verdict winner, to see whether there is
sufficient evidence to enable the factfinder to find every
element of the crime beyond a reasonable doubt. This
standard is equally applicable to cases where the evidence
is circumstantial rather than direct so long as the
combination of the evidence links the accused to the crime
beyond a reasonable doubt. Although a conviction must be
based on more than mere suspicion or conjecture, the
Commonwealth need not establish guilt to a mathematical
certainty. Moreover, when reviewing the sufficiency of the
evidence, this Court may not substitute its judgment for
that of the fact-finder; if the record contains support for the
convictions they may not be disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013) (internal
citations, quotations, and brackets omitted).
Pursuant to 23 Pa.C.S. § 6114,
[w]here the police, sheriff or the plaintiff have filed charges
of indirect criminal contempt against a defendant for
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violation of a protection order issued under this chapter, a
foreign protection order or a court-approved consent
agreement, the court may hold the defendant in indirect
criminal contempt and punish the defendant in accordance
with law.
Commonwealth v. Jackson, 10 A.3d 341, 346 (Pa. Super. 2010) (citation
omitted). To establish ICC, 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.
Id. (citation omitted).
On appeal, Appellant solely challenges the sufficiency of the evidence
maintains that his June 21, 2013 communication with Ms. Kochman at the
Sheetz store, and his July 13, 2013 text message to her, were both for the
matters involving -being or custody schedule, but instead
was to discuss with Ms. Kochman the outstanding issues regarding their
jointly-
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communicating with Ms. Kochman, we disagree with its legal determination
ext message to
attorney] about it, me and the girls can start moving into [the house]
communication with her at the Sheetz store, Ms. Kochman testified that
Id. at
-held real property
which Appellant was communicating with Ms. Kochman was a home that
trial that he was trying to move into that residence, which was closer to Ms.
Id. at 17. Appellant testified that the bank was
paperwork permitting Appellant to refinance the mortgage on the home. Id.
Id.
Ms. Kochman, we cannot agree with the court that his intent was wrongful.
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n the record that
Appellant communicated with Ms. Kochman for the purpose of abusing,
stalking, harassing, or threatening her, as prohibited by the PFA petition. 1
Accordingly, the evidence was insufficient to prove that Appellant possessed
wrongful intent in communicating with Ms. Kochman. Thus, we reverse
Judgment of sentence reversed. Jurisdiction relinquished.
Justice Fitzgerald joins in the memorandum.
Judge Olson files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
1
See Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa. Super. 2012)
(indicating that to prove ICC of a PFA
prohibited the appellant from contacting the petitioner, the Commonwealth
harassing Commonwealth v. Haigh, 874
A.2d 1174, 1177 (Pa. Super. 2005) (reversing ICC conviction based on the
inter alia ieve that he was threatening [his wife],
and neither she nor any one [sic] else in the courtroom heard [the
defendant] threaten [his wife] or otherwise make any threatening
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Com. v. Taylor, R.
Combined Opinion