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.
J-E01013-16
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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