J-A11015-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID MICHAEL BEECH :
:
Appellant : No. 1869 MDA 2019
Appeal from the Judgment of Sentence Entered October 22, 2019
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-MD-0000534-2019
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 18, 2020
Appellant, David Beech, appeals from his judgment of sentence entered
by the Court of Common Pleas of Cumberland County for indirect criminal
contempt as a result of his contact with the protected party of a protection
from abuse (“PFA”) order. We affirm.
On October 1, 2019, Officer Jarreau Dodson of the Middlesex Township
Police Department attended Appellant’s hearing regarding a separate charge
of indirect criminal contempt for having contact with the same protected party,
Sara Joy, in violation of the same PFA order involved in the instant case.
Following that hearing, Joy asked Officer Dodson to walk her to her car. While
Officer Dodson and Joy were waiting to cross the street at a traffic light outside
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A11015-20
of the courthouse, Appellant ran across the street to where the officer and Joy
were standing. Appellant immediately began asking Officer Dodson questions,
which Officer Dodson initially attempted to ignore.
Appellant, however, continued to ask Officer Dodson questions. Officer
Dodson explained to Appellant that he could not answer Appellant’s questions
because he was with Joy and reminded Appellant that he had just been found
guilty of violating the PFA order. In response, Appellant looked over the
officer’s shoulder at Joy and stated, “I don’t care.” N.T. Hearing In Re: Indirect
Criminal Contempt/Sentence, 10/22/19, at 4, 8. Appellant persisted with his
questions, and Officer Dodson repeatedly told him that he was not going to
answer those questions. Appellant then told Officer Dodson to “suck [his]
d***” and left. Id. at 5.
Based on this incident, Appellant was once again charged with indirect
criminal contempt for violating the PFA order. Following a hearing on October
22, 2019, the trial court found Appellant guilty as charged and sentenced him
to two to six months of incarceration. Appellant filed this timely notice of
appeal, arguing that the evidence was insufficient to sustain his conviction for
indirect criminal contempt.
“Evidence presented at trial is sufficient when, viewed in the light most
favorable to the Commonwealth as verdict winner, the evidence and all
reasonable inferences derived therefrom are sufficient to establish all
elements of the offense beyond a reasonable doubt.” Commonwealth v.
-2-
J-A11015-20
Blakeney, 946 A.2d 645, 651 (Pa. 2008) (citation omitted). To establish
indirect criminal contempt for the violation of a PFA order, the Commonwealth
must prove: 1) the PFA order was sufficiently definite, clear and specific to the
contemnor so as to leave no doubt of the conduct prohibited; 2) the contemnor
had notice of the order; 3) the act constituting the violation was volitional;
and 4) the contemnor acted with wrongful intent. See Commonwealth v.
Lambert, 147 A.3d 1221, 1226 (Pa. Super. 2016).
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[’]s decision. We will reverse a trial court’s determination
only when there has been a plain abuse of discretion.
Id. (citations omitted).
Here, Appellant first argues that the Commonwealth failed to establish
that he acted with wrongful intent because it did not show that he had any
actual contact with Joy. He maintains that while Joy may have been in the
company of Officer Dodson, he only engaged in conversation with Officer
Dodson and therefore there was no contact with Joy that would justify a finding
of contempt. This claim fails.
The PFA Act, 23 Pa. C.S.A. § 6101 et seq., does not provide a definition
of “contact.” However, in rejecting Appellant’s argument below, the trial court
stated:
One of Webster [Ninth New Collegiate Dictionary (Principal
Copyright 1983)]’s several definitions of the noun [“contact”]
includes an ‘establishing of communication with someone or
receiving a significant signal from a person or object.’ We agree
-3-
J-A11015-20
that the two parties to a PFA may find themselves in the vicinity
of each other and not have ‘contact’ within this definition. In this
case, however, [Appellant] approached a police officer who was
standing next to [Joy]. It was his purpose to discuss the PFA
proceeding with the police officer with the obvious intent, if not
the sole purpose, that [Joy] would overhear it. This, to our mind,
is ‘contact’ with [Joy].
Trial Court Opinion, 1/16/20, at 4 (unpaginated).
We see no abuse of discretion in the trial court’s conclusion, especially
considering the testimony that Appellant also directly engaged with Joy by
looking at her when he made the statement “I don’t care.” N.T. Hearing In
Re: Indirect Criminal Contempt/Sentence, 10/22/19, at 4, 8. In attempting to
establish that the trial court did abuse its discretion, Appellant relies on
Commonwealth v. Baker, 766 A.2d 328 (Pa. 2001) and Commonwealth
v. Haigh, 874 A.2d 1174 (Pa. Super. 2005). Neither of these cases, however,
support Appellant’s claim.
In Baker , two deputy sheriffs overheard the appellant say that he was
“going to kill this bitch” after they served Appellant with a PFA order at the
prison where he was an inmate. See Baker, 766 A.2d at 330. The appellant
was subsequently convicted of indirect criminal contempt in connection with
this statement. On appeal, however, our Supreme Court determined that there
was insufficient evidence to sustain the conviction because the protected party
was not anywhere near the appellant when he made the statement. See id.
at 331-332. Clearly, the same is not true in this case as Joy was within feet of
Appellant during the entire exchange outside of the courthouse.
-4-
J-A11015-20
The circumstances in Haigh were also materially different from those in
the instant case. In Haigh, the appellant’s estranged wife obtained a PFA
order against the appellant. After the wife had a procedure removing a mass
from her breast, the appellant tried to contact her about the procedure by
letter and by phone and was charged with indirect criminal contempt for doing
so. During a hearing on that indirect criminal contempt charge, the appellant
leaned over to the wife and asked if she was “ok on top?” Haigh, 874 A.2d at
1176. The court charged Appellant with an additional count of indirect criminal
contempt, for which Appellant was convicted. Citing the “peculiar
circumstances of the case,” this Court held on appeal that the evidence was
insufficient to support that conviction as the appellant had not acted with
wrongful intent in asking his estranged wife about her health. Id. at 1178. In
reaching this conclusion, this Court stated:
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.
Id. at 1177.
Here, common sense and the consideration of surrounding factors
clearly support the trial court’s conclusion that Appellant’s contact with Officer
Dodson and Joy violated the PFA order. As the Commonwealth states in its
brief:
The facts of the instant case require no more than a common
sense determination. [Appellant] acted with wrongful intent,
when, immediately following a hearing on a similar matter
-5-
J-A11015-20
[involving a violation of the very PFA order at issue here],
[Appellant] publicly approached [Joy] and acted in a vulgar and
intimidating manner, knowing she would be aware of his behavior.
When viewing all evidence in a light most favorable to [the]
Commonwealth as verdict winner, this Honorable Court must find
the evidence was sufficient to support a finding of guilt.
Commonwealth’s Brief at 13. We agree.
Appellant also makes a passing assertion, however, that because the
Commonwealth did not admit the underlying PFA order into evidence it “failed
to prove beyond a reasonable doubt that the underlying PFA order plainly
precluded the conduct exhibited by Appellant and that Appellant had sufficient
notice that his conduct would constitute a violation of that order.” Appellant’s
Brief at 11. This claim also fails.
In the first place, it is questionable whether Appellant properly
preserved this claim. In his 1925(a) statement of errors complained of on
appeal, Appellant only challenged the sufficiency of the evidence on the basis
of his claim above that the Commonwealth failed to prove he “had any contact
with the [PFA] order’s protected party, as opposed to the arresting officer.”
Statement of Concise Errors Complained of on Appeal, 12/9/19. The statement
did not contain any allegation regarding insufficient notice of what conduct
was prohibited. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
(holding that issues that are not included in the appellant’s 1925(a) statement
of errors complained of on appeal are waived).
In any event, even if not waived, the issue lacks merit. While we agree
with Appellant that the underlying PFA order does not appear to be in the
-6-
J-A11015-20
record, we disagree with his assertion that the trial court did not have
sufficient evidence to conclude that Appellant understood what conduct the
PFA order prohibited. Given that the incident at hand occurred immediately
after a hearing in which Appellant was found guilty of a separate violation of
the exact same PFA order at issue in this appeal, he was clearly aware of the
PFA order and its contents. See also Commonwealth v. Walsh, 36 A.3d
613, 619 (Pa. Super. 2012) (stating that a party to a PFA order is presumed
to have read the contents of that order).
Moreover, Appellant does not deny that the PFA order prohibited him
from having contact with Joy. The trial court, as explained above, found that
Appellant’s actions constituted contact with Joy and it also concluded that
Appellant “knew or should have known that it was.” Trial Court Opinion,
1/16/20, at 3 (unpaginated). Appellant has simply not shown that the trial
court abused its discretion in reaching either of these conclusions. No relief is
due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2020
-7-