J-S96008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VAUGHN YOUNG,
Appellant No. 1984 WDA 2015
Appeal from the Judgment of Sentence Entered November 18, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD-11-001438
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 23, 2017
Appellant, Vaughn Young, appeals from the judgment of sentence of
an aggregate term of 1 year incarceration, imposed after he was convicted
of two counts of indirect criminal contempt (ICC). Appellant challenges the
sufficiency of the evidence to support his convictions. After careful review,
we affirm.
The trial court summarized the underlying procedural history of this
case as follows:
Family Division Plaintiff Tamara Reese sought and obtained
a temporary [Protection From Abuse (PFA)] Order against her
ex-boyfriend, [Appellant] … on September 8, 2011.[1] A final
hearing was held, and a final PFA Order was entered on
September 19, 2011. Thereafter, [Appellant] was arrested and
____________________________________________
1
See Protection From Abuse Act, 23 Pa.C.S. §§ 6101-6122.
J-S96008-16
charged with numerous counts of [ICC] for violating that
PFA….[2]
…
[Appellant] was subsequently arrested on August 21, 2015
and October 23, 2015 for additional violations of the no-contact
provisions of the PFA. A hearing on those charges was held
before this [c]ourt on November 18, 2015. [Appellant] was
found guilty of both counts of [ICC] and was sentenced to two
(2) consecutive terms of imprisonment of six (6) months.
TCO at 1-3.
Appellant filed a timely notice of appeal, and he also timely complied
with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Therein, Appellant raised two issues:
a. The evidence was insufficient to prove, beyond a reasonable
doubt, that [Appellant] had prohibited contact with the protected
parties noted within the [PFA] order.
b. [The trial] [c]ourt erred in not granting [Appellant’s] Petition
to accept Post-Sentence Motion Nunc Pro Tunc, thus preventing
him from raising certain claims on appeal as they were not
preserved through the required post-sentence motions.
Rule 1925(b) Statement, 2/18/16, at ¶ 10.
____________________________________________
2
The trial court lists the dates and dispositions for each of Appellant’s ICC
charges. See Trial Court Opinion (TCO), 4/12/16, at 2. Briefly, several of
Appellant’s earliest ICC charges were dismissed because Reese failed to
appear for court or “did not wish to proceed[.]” Id. Appellant pled guilty to
six other ICC charges stemming from conduct in 2014 and early 2015. For
those convictions, he received consecutive terms of probation. In June of
2015, Appellant was convicted of another count of ICC and sentenced to 90
days’ incarceration. Following that conviction, the PFA order was extended
until July of 2018.
-2-
J-S96008-16
Now, on appeal, Appellant has abandoned the second claim raised in
his concise statement, and he presents only the following issue concerning
the sufficiency of the evidence to support his convictions:
I. Was the evidence … insufficient as a matter of law to convict
[Appellant] of either count of [ICC] where the language of the
PFA order was not so clear, definite and specific as to leave no
doubt that [Appellant’s] conduct was prohibited and where the
Commonwealth failed to prove beyond a reasonable doubt that
[Appellant] acted with wrongful intent?
Appellant’s Brief at 4.
It is apparent that the precise arguments Appellant asserts herein
were not specifically set forth in his Rule 1925(b) statement. Typically, we
would conclude that Appellant has waived those claims for our review. See
Commonwealth v. Lord, 719 A.2d 306, 309 (P. 1998) (creating the bright-
line rule that “[a]ppellants must comply whenever the trial court orders
them to file a Statement of [Errors] Complained of on Appeal pursuant to
Rule 1925[,]” and “[a]ny issues not raised in a [Rule] 1925(b) statement will
be deemed waived.”); see also Pa.R.A.P. 1925(b)(4)(vii). However, our
review of the record reveals that the trial court’s order did not comply with
the dictates of Rule 1925(b)(3). Specifically, the court did not inform
Appellant “that any issue not properly included in the Statement … shall be
deemed waived.” Pa.R.A.P. 1925(b)(3). Consequently, we will not deem
Appellant’s claims waived for our review. See Greater Erie Indus.
Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa.
Super. 2014) (en banc) (holding that, “[i]n determining whether an
-3-
J-S96008-16
appellant has waived his issues on appeal based on non-compliance with
[Rule] 1925, it is the trial court’s order that triggers an appellant’s
obligation[;] … therefore, we look first to the language of that order”)
(citations omitted).
Before examining the merits of Appellant’s challenge to the sufficiency
of the evidence to sustain his ICC convictions, we note that:
[W]hen reviewing a contempt conviction, much reliance is
given to the discretion of the trial judge. Accordingly, we are
confined to a determination of whether the facts support the trial
court's decision. We will reverse a trial court's determination only
when there has been a plain abuse of discretion. Yet we remain
mindful that the power to impose a sanction of criminal
contempt should not be used when a lesser means would suffice,
as it is an actual criminal conviction.
A finding of criminal contempt must be supported by the
following four elements:
(1) The [court's] order or decree must be definite, clear, specific
and leave no doubt or 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.
Commonwealth v. Haigh, 874 A.2d 1174, 1176–77 (Pa. Super. 2005)
(internal citations and quotation marks omitted).
Presently, Appellant first challenges his conviction of ICC stemming
from his conduct on August 21, 2015. On that date, Appellant
contacted Tamara Reese’s mother, sister and brother-in-law on
Facebook in an attempt to get them to ‘talk some sense into’
-4-
J-S96008-16
Tamara regarding dropping the PFA and letting [Appellant] see
their daughter, … who is also a protected party under the PFA.
[Appellant] also contacted [the daughter’s] school to inquire
about her.
TCO at 3. According to Appellant, the language of the PFA order did not
clearly and definitively inform him “that contacting Reese’s family members
to determine [his daughter’s] well-being and to express his desire to have a
relationship with [his daughter] was prohibited….” Appellant’s Brief at 11.
Appellant’s argument is unconvincing. Initially, the evidence at the
ICC hearing demonstrated that Appellant did not contact Reese’s family for
the sole purpose of inquiring about his daughter’s well-being, or to inform
them that he wished to have a relationship with his daughter. Rather,
Appellant sent Facebook messages to three members of Reese’s family in an
attempt to have those third parties talk to Reese and convince her to drop
the PFA order and/or to allow Appellant to see their daughter. For instance,
Ebony Evans, Reese’s sister, testified that she read messages that Appellant
wrote to her husband in which Appellant was “trying to get my husband to
talk to my sister about letting him see [his daughter]” and “to talk to
[Reese] as her family” about the PFA order. N.T., 11/18/15, at 14. Evans
further testified that Appellant sent her messages on Facebook asking her to
“talk some sense into” Reese. Id. at 17. Additionally, Reese’s mother,
Terry Lunsford, took the stand at the hearing and testified that she also
received a message from Appellant on Facebook asking her “to talk to [her]
daughter because they were having problems.” Id. at 21.
-5-
J-S96008-16
The testimony by Evans and Lunsford proved that Appellant contacted
members of Reese’s family for the purpose of having those individuals
contact Reese to encourage her to drop the PFA order and/or allow
Appellant to see their daughter. The PFA order unambiguously states that
Appellant “shall not contact Plaintiff, or any other person protected under
this order, either directly or indirectly, by telephone or any other means,
including through third persons.” Final PFA Order, 9/15/11, at 2
(emphasis added). This language clearly notified Appellant that contacting
Reese’s family members, for the purpose of having them communicate with
Reese, was prohibited.
Moreover, we reject Appellant’s argument that his communication with
these third parties did not violate the PFA order because he only told them
“to discuss the matter with Reese amongst themselves.” Appellant’s Brief
at 16 (emphasis in original). While Appellant may not have asked Reese’s
family members to relay any specific message to her, his request that they
‘talk to Reese’ was obviously an attempt to have them communicate to
Reese Appellant’s desire to see his daughter, and his hope that she would
drop the PFA against him. The language of the PFA order explicitly
precluded such indirect contact through third parties. Thus, the evidence
-6-
J-S96008-16
was sufficient to support Appellant’s ICC conviction for his conduct on
August 21, 2015.3
Likewise, we also deem meritless Appellant’s claim that the
Commonwealth failed to present sufficient evidence to sustain his ICC
conviction stemming from his October 23, 2015 act of sending Reese a
‘friend request’ on Facebook. Appellant asserts that this act did not violate
the PFA order because it was non-threatening and de minimus, similar to the
appellant’s conduct in Commonwealth v. Haigh, 874 A.2d 1174 (Pa.
Super. 2005). In that case, Haigh’s wife had obtained a PFA order against
him. During an ICC hearing based on Haigh’s allegedly violating that order,
he asked his wife, who had just undergone a recent surgery, if she was
“okay[,]” and he “urged her to write him in prison about her prognosis.”
Haigh, 874 A.2d at 1176. For these comments, Haigh was charged with
another count of ICC, and he was ultimately convicted of that offense.
On appeal, this Court reversed Haigh’s conviction on the following
grounds:
In the case sub judice, the final PFA order prohibited
[Haigh] from having any contact with his wife “at any location.”
Although this language seems unambiguous on its face, context
ultimately caused confusion for [Haigh] in that he was literally
brought into a form of contact with his wife during the PFA
violation hearing. Moreover, both [Haigh] and Mrs. Haigh had
____________________________________________
3
Because Appellant’s communication with Reese’s family members was
sufficient to sustain that ICC conviction, we need not assess whether his act
of calling his daughter’s school on August 21, 2015, also violated the PFA
order.
-7-
J-S96008-16
the opportunity to speak at this hearing. A reasonable person
could have believed, and [Haigh] did believe, that the PFA order
was relaxed to some extent in the courtroom context, especially
where [Haigh] was shackled and the victim was protected by an
armed deputy sheriff. [Haigh] did not believe that he was
threatening Mrs. Haigh, and neither she nor any one [sic] else in
the courtroom heard [Haigh] threaten her or otherwise make
any threatening movements or gestures towards her. [Haigh’s]
questions arose from his concern for the health of his wife of
thirty-one years, even though they were estranged at the time.
After a thorough review of the record, we conclude, based upon
all of the circumstances, that [Haigh] did not act with wrongful
intent by engaging in this conversation with his wife in the
courtroom.4 Intentionally acting in such a manner, in the
presence of Judge Campbell, the deputy sheriff, the prosecutor
and every other person gathered in the court room, would have
been nothing short of irrational, and there is nothing in the
record to indicate that Appellant was in any way irrational on the
day of the hearing. In fact, the judge concluded that [Haigh] was
sufficiently rational to enter guilty pleas to two prior violations of
the PFA at the very same hearing.
4
Indeed, in actuality, Appellant's conversing with his wife
while in the courtroom does not even fit within the
definition of indirect criminal contempt, which addresses
contemptuous actions outside the presence of the
court. See [Commonwealth v.] Baker, 722 A.2d 718
(Pa. Super. 1998) (en banc)].
It 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.
Baker, 722 A.2d at 722.
Under the peculiar circumstances of this case, because we
conclude that the record does not support the determination that
[Haigh] intended to violate the final PFA order and because the
-8-
J-S96008-16
infraction was both de minimis and non-threatening, we are
constrained to hold that the trial court did abuse its discretion in
convicting [Haigh] of [ICC].
Haigh, 874 A.2d at 1177-78 (one footnote omitted; emphasis in original).
The facts of Appellant’s case are distinguishable from the unique
circumstances in Haigh. Appellant was not brought into contact with Reese
in a courtroom setting. Moreover, unlike in Haigh, nothing in the record
demonstrates that Appellant contacted Reese via Facebook because he
reasonably believed the PFA order was ‘relaxed’ in the context of online
communication. Instead, Appellant testified at the ICC hearing that he sent
the ‘friend request’ because his Facebook account was ‘hacked.’ See N.T. at
26. The trial court explicitly rejected this testimony, finding it completely
incredible. Id. at 28.
In sum, the plain language of the PFA order, and the evidence
presented at the ICC hearing, convince us that Appellant understood he was
not permitted to contact Reese via Facebook, yet he willfully chose to violate
the order. While we agree with Appellant that his contact with Reese was de
minimis and non-threatening, we cannot conclude that it was unintentional,
as was the case in Haigh. Accordingly, the evidence was sufficient to
support Appellant’s conviction of ICC based on his contact with Reese in
October of 2015.
Judgment of sentence affirmed.
-9-
J-S96008-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2017
- 10 -