J-S14013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
BRIAN ELLIOTT, JR. :
:
Appellant : No. 1255 MDA 2016
Appeal from the Judgment of Sentence June 23, 2016
In the Court of Common Pleas of Northumberland County
Criminal Division at No(s): CP-49-MD-0000258-2016
BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 15, 2017
Appellant, Brian Elliott, Jr., appeals from the judgment of sentence
entered in the Northumberland County Court of Common Pleas, following his
bench trial conviction for indirect criminal contempt (“ICC”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant and Victim have one child together and were previously in a
relationship. In or around May 2016, Victim sought a protection from abuse
(“PFA”) order against Appellant based on allegations that Appellant was
stalking and harassing her. The court held a PFA hearing on May 25, 2016.
Appellant failed to appear for the hearing. Thus, the court entered a final
PFA order that day stating: “[Appellant] shall not abuse, harass, stalk or
____________________________________________
1
23 Pa.C.S.A. § 6114(a).
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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threaten” Victim. (Final PFA Order, entered May 26, 2016, at 1). The order
also states: “This Order is entered after a hearing at which [Appellant]
was not present, despite proper service being made.” (Id. at 2)
(emphasis in original). The order further awarded Victim temporary
exclusive custody of the parties’ child and provided that Appellant shall have
no partial physical custody/visitation rights. (Id.) The PFA order provides a
“NOTICE TO THE DEFENDANT” explaining, inter alia, that a violation of the
PFA order may result in the defendant’s arrest on the charge of indirect
criminal contempt which is punishable by a fine of up to $1,000 and/or a jail
sentence of up to six months. (Id. at 3). The last page of the PFA order
indicates Appellant was served with the order. (Id. at 4).
On June 10, 2016, while the PFA order was in effect, Victim went
outside her place of employment and saw Appellant walk by her. Appellant
tried to talk to Victim but she went back to work. Later that night, Victim
was at home outside on her porch with her son when she noticed Appellant
walk by her house. Appellant did not make eye contact with Victim. Victim
placed her son in her car and drove away. As Victim approached a stop sign
and began to turn the corner, Appellant appeared from in between other
vehicles, came up to her window, “got in [Victim’s] face” and told Victim that
she was “[g]oing to fuckin’ listen to [Appellant].” (N.T. ICC Hearing,
6/23/16, at 6). Appellant grabbed Victim through the window and hit her in
the side of the head. Victim sustained numerous bruises from the attack as
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well as a severe concussion. Victim reported the incident to police the next
morning and police subsequently filed a criminal complaint against Appellant
for ICC.
On June 23, 2016, the court held a hearing on the ICC charge, at
which Victim and Appellant testified. At the conclusion of the hearing, the
court convicted Appellant of ICC and sentenced him to three months’
imprisonment, plus three months’ probation. The court also extended the
PFA order for an additional six months. Following sentencing, the court
remarked: “These are some of the most serious injuries I have seen in some
time in a PFA case.” (Id. at 29).
Appellant filed an untimely post-sentence motion on July 15, 2016,
which the court denied on July 20, 2016. On July 21, 2016, Appellant timely
filed a notice of appeal and a voluntary concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises one issue for our review:
WHETHER THE VERDICT WENT CONTRARY TO THE
WEIGHT AND SUFFICIENCY OF THE EVIDENCE WHEN THE
EVIDENCE AT TRIAL DID NOT MATCH THE ALLEGATION IN
THE ORIGINAL COMPLAINT AND NO SERVICE OF THE
ORDER WAS PROVEN BEYOND A REASONABLE DOUBT?
(Appellant’s Brief at 6).
Our standard and scope of review in this case are as follows:
When examining a challenge to the sufficiency of the
evidence:
The standard we apply…is whether viewing all the
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evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the fact-
finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of
fact may be drawn from the combined
circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond
a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and
all evidence actually received must be considered.
Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none
of the evidence.
This standard is equally applicable in cases where the
evidence is circumstantial, rather than direct, provided
that the combination of evidence links the accused to the
crime beyond a reasonable doubt.
Additionally, the following principles apply to our review of
a weight of the evidence claim:
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the…verdict if it is so contrary to
the evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
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to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),
appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations,
quotation marks, and emphasis omitted).
Appellant argues he did not receive notice about the PFA hearing until
after the PFA hearing had already occurred. Appellant asserts he was
unaware of the PFA order. Appellant claims Victim “made up” the June 10,
2016 incident. Appellant maintains Victim’s statement at the ICC hearing
that Appellant grabbed both of her arms was inconsistent with her prior
statement to police that Appellant grabbed Victim’s throat. Appellant
contends Victim’s version of events is incredible where no witnesses could
corroborate her testimony even though the incident allegedly occurred in a
busy area with lots of people and a bar around the corner. Appellant
suggests Victim fabricated the incident to keep Appellant away from his
child. Appellant concludes the Commonwealth presented insufficient
evidence to sustain the verdict, the verdict was against the weight of the
evidence, and this Court must grant Appellant an arrest of judgment or a
new trial. We disagree.
As a preliminary matter, generally, a challenge to the weight of the
evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.
The Rule provides:
Rule 607. Challenges to the Weight of the Evidence
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(A) A claim that the verdict was against the weight of
the evidence shall be raised with the trial judge in a
motion for a new trial:
(1) orally, on the record, at any time before
sentencing;
(2) by written motion at any time before sentencing;
or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal
denied, 581 Pa. 672, 863 A.2d 1143 (2004). An appellant’s failure to avail
himself of any of the prescribed methods for presenting a weight of the
evidence issue to the trial court constitutes waiver of that claim, even if the
trial court responds to the claim in its Rule 1925(a) opinion.
Commonwealth v. Burkett, 830 A.2d 1034 (Pa.Super. 2003). See also
Pa.R.Crim.P. 720(A)(1) (explaining written post-sentence motion shall be
filed no later than 10 days after imposition of sentence).
Instantly, the court sentenced Appellant on June 23, 2016. Appellant
filed an untimely post-sentence motion on July 15, 2016. In his post-
sentence motion, Appellant alleged: “[Appellant] requests the court to
reconsider the matter in order to gain a hearing from witnesses on his behalf
and to reduce his sentence to time served or release him from custody
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altogether.” (Post-Sentence Motion, filed 7/15/16, at 1). Notably, the post-
sentence motion did not include a challenge to the weight of the evidence.
The court denied the motion on July 20, 2016. The record is unclear
whether the court denied Appellant’s post-sentence motion as untimely or
denied it on the merits. In any event, Appellant’s weight claim is waived
because he failed to preserve it in a timely filed post-sentence motion for a
new trial. See Pa.R.Crim.P. 607; 720; Gillard, supra; Burkett, supra.
Regarding Appellant’s sufficiency challenge, the ICC statute provides,
in relevant part:
§ 6114. Contempt for violation of order or
agreement
(a) General rule.—When the police, sheriff or the
plaintiff have filed charges of indirect criminal contempt
against a defendant for 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 the law.
23 Pa.C.S.A. § 6114(a). This Court has recently explained:
The purpose of the PFA Act is to protect victims of
domestic violence from those who perpetrate such abuse,
with the primary goal of advance prevention of physical
and sexual abuse. Where a PFA order is involved, an
indirect criminal contempt charge is designed to seek
punishment for violation of the protective order. A charge
of indirect criminal contempt consists of a claim that a
violation of an order or decree of court occurred outside
the presence of the court. To establish indirect criminal
contempt, 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
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constituting the violation must have been volitional; and 4)
the contemnor must have acted with wrongful intent.
When reviewing a contempt conviction, much
reliance is given to the discretion of the trial judge.
Accordingly, the appellate court is confined to a
determination of whether the facts support the trial
court decision. We will reverse a trial court’s
determination only when there has been a plain
abuse of discretion.
Commonwealth v. Lambert, 147 A.3d 1221, 1226 (Pa.Super. 2016)
(internal citations, quotation marks, and footnote omitted).
Instantly, the trial court addressed Appellant’s issue as follows:
It is clear that, in viewing the evidence in the light most
favorable to the verdict winner, there was sufficient
evidence to support this court’s determination. At the
hearing, the Commonwealth presented evidence from the
PFA hearing held on May 25, 2016. The Final Protection
From Abuse Order states [Appellant] failed to appear for
the May 25th 2016 hearing even though he was “properly
served.” The Final PFA was granted and became effective
on May 25, 2016. [Appellant’s] failure to appear does not
absolve him from complying with the PFA order.
* * *
At the [ICC] hearing, there was testimony by the
[V]ictim…as to [Appellant’s] actions on June 10, 2016.
Specifically, on the night of June 10, 2016, [Victim]
testified [Appellant] reached into her car window and
grabbed her. He continued to hit her on the side and back
of the head while her 2 year old son was in the car. This
court observed the bruises and commented in pronouncing
sentence: “These are some of the most serious injuries I
have seen in some time in a PFA case.” … [Victim] further
testified she subsequently passed out and was hospitalized
with a severe concussion.
[Appellant] in his own defense at trial testified that he did
not receive notice of the PFA hearing and that the incident
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on June 10, 2016 never occurred.1 This court considered
and ultimately rejected his testimony.
1
[Appellant] admitted he called the courthouse the
day after the PFA hearing to try to reschedule and
was told the hearing had already taken place.
(Trial Court Opinion, filed December 1, 2016, at 2-3). We see no reason to
disrupt the court’s decision. See Orr, supra. To the extent Appellant also
complains he did not receive notice of the final PFA order, the record belies
that claim. Therefore, the Commonwealth presented sufficient evidence to
sustain Appellant’s conviction. See 23 Pa.C.S.A. § 6114(a); Lambert,
supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2017
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