J-A23035-22
2022 PA Super 223
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD SMITH, JR. :
:
Appellant : No. 1158 MDA 2021
Appeal from the Judgment of Sentence Entered August 4, 2021
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-21-05024
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: DECEMBER 29, 2022
Donald Smith, Jr. appeals from the August 4, 2021 judgment of
sentence ordering him to pay court costs after he was found guilty of indirect
criminal contempt1 of a Protection From Abuse (“PFA”) order. The trial court
made a determination of guilt without further penalty pursuant to 42 Pa.C.S.A.
§ 9721(a)(2). After careful review, we affirm.
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows: On July 26, 2021, Khadijah Smith
(hereinafter “victim”) filed a pro se PFA petition against Appellant, her
husband. That same day, the trial court granted victim’s petition and ordered
a temporary PFA prohibiting Appellant from having any contact with the
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 23 Pa.C.S.A. § 6114.
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victim. At 9:50 p.m. on July 26, 2021, Lieutenant Christopher McCormick of
the Lancaster City Bureau of Police served Appellant with a copy of the
temporary PFA and evicted Appellant from the parties’ residence.
On July 27, 2021, between the hours of 10:45 a.m. and 3:10 p.m.,
Appellant sent several Facebook messages to victim’s Facebook account. The
following day, Appellant was charged with one count of indirect criminal
contempt. On August 4, 2021, a hearing was held on the indirect criminal
contempt charge, in conjunction with the final PFA hearing previously
scheduled for the same date.
At said hearing, the victim testified that the parties had previously used
Facebook Messenger to communicate and that Appellant used his Facebook
account to contact her several times on July 27, 2021. Notes of testimony,
8/4/21 at 9-11. Appellant’s counsel objected to the statements, not the
content of the messages themselves, as protected communications between
spouses. Id. at 12. The trial court overruled Appellant’s objection and the
messages were admitted into the record. Id. at 14, 17. Appellant also
testified on his own behalf at the hearing and acknowledged that he had been
given a copy of the temporary PFA order by Lieutenant McCormick, but that
he never read it prior to sending the messages to the victim. Id. at 26-29.
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Following the hearing, the trial court found Appellant guilty of one count
of indirect criminal contempt and sentenced him to pay court costs on August
4, 2021. This timely appeal followed on September 2, 2021.2
Appellant raises the following issues for our review:
1. Did the [trial court] abuse its discretion by
admitting [Appellant’s Facebook messages sent
to his wife] despite [Appellant’s] attempt to
exercise his privilege regarding confidential
communications between spouses, codified at
42 Pa.C.S.[A.] § 5914?
2. Was the evidence introduced by the
Commonwealth at trial sufficient to prove that
[Appellant] was guilty beyond a reasonable
doubt of indirect criminal attempt?
Appellant’s brief at 5.
Appellant first argues that the trial court abused its discretion in allowing
the Commonwealth to introduce evidence that he contacted the victim via
Facebook Messager because they constituted confidential communications
between spouses, pursuant to 42 Pa.C.S.A. § 5914. Appellant’s brief at 11-
14. We disagree.
“[T]he admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106
(Pa.Super. 2012) (citation omitted), appeal denied, 76 A.3d 538 (Pa. 2013).
____________________________________________
2 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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The threshold inquiry with admission of evidence is
whether the evidence is relevant. Evidence is relevant
if it logically tends to establish a material fact in the
case, tends to make a fact at issue more or less
probable, or supports a reasonable inference or
presumption regarding the existence of a material
fact. In addition, evidence is only admissible where
the probative value of the evidence outweighs its
prejudicial impact.
Commonwealth v. Antidormi, 84 A.3d 736, 750 (Pa.Super. 2014) (citations
and internal quotation marks omitted), appeal denied, 95 A.3d 275 (Pa.
2014); see also Pa.R.E. 401(a), (b).
Here, a review of the certified record supports the trial court’s conclusion
that the evidence that Appellant contacted the victim via Facebook Messager
is not subject to privilege under Section 5914 nor Section 5924.
Section 5914 governs confidential communications between spouses
and provides that “in a criminal proceeding neither husband nor wife shall be
competent or permitted to testify to confidential communications made by one
to the other, unless this privilege is waived upon the trial.” 42 Pa.C.S.A.
§ 5914. In Commonwealth v. McBurrows, 779 A.2d 509 (Pa.Super. 2001),
appeal denied, 815 A.2d 632 (Pa. 2002), cert. denied, 540 U.S. 829
(2003), a panel of this Court explained Section 5914 as follows:
This privilege prevents a husband or wife from
testifying against their spouse as to any
communications which were made during the marital
relationship. The privilege remains in effect through
death or divorce. The confidential communication
cannot be divulged without the consent of the other
spouse. The public policy sought to be enhanced by
this privilege is the preservation of marital harmony
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and the resultant benefits to society from that
harmony. Communications between spouses are
presumed to be confidential, and the party opposing
application of the rule disqualifying such testimony
bears the burden of overcoming this presumption. In
order for a confidential communication between
spouses to be protected, knowledge must be gained
through the marital relationship and in the confidence
which that relationship inspires. In order to be
protected under § 5914, it is essential that the
communication be made in confidence and with the
intention it not be divulged.
Id. at 514 (internal quotation marks and citations omitted). Thus, “while
communications between spouses are presumed to be confidential under
section 5914, it has long been recognized that whether a particular
communication is privileged depends upon its nature and character and the
circumstances under which it was said.” Commonwealth v. Hunter, 60 A.3d
156, 159–160 (Pa.Super. 2013) (citation and footnote omitted).
A court may hold a defendant in indirect criminal contempt and punish
him or her in accordance with the law where the police have filed charges of
indirect criminal contempt against the defendant for violating a PFA order
issued pursuant to the domestic relations code. 23 Pa.C.S.A. § 6114(a).
Section 5924 is the corollary to Section 5914 in civil matters where a spouses
are called to testify as a witnesses against each other in indirect criminal
contempt matters. This section provides that “[i]a civil matter neither
husband nor wife shall be competent or permitted to testify against each
other[,] [except] ... in an action or proceeding … [a]rising under 23 Pa.
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C.S. Ch.61 (relating to protection from abuse).” 42 Pa.C.S.A. § 5924(a),
(b)(4) (emphasis added).
Instantly, it is quite clear that the Legislature did not intend for the
confidential communications privilege to apply where a PFA order is in effect.
Under Section 5924(b)(4), the presumption of a spousal confidential
communications privilege is inapplicable because the underlying indirect
criminal contempt charge arose out of a protection from abuse action. To
allow otherwise would permit a defendant-spouse to engage in whatever
contact he desires with his plaintiff-spouse irrespective of the protections
afforded by the PFA.
In reaching this decision, we find our Supreme Court’s holding in
Commonwealth v. Spetzer, 813 A.2d 707 (Pa. 2002), insightful. In
Spetzer, our Supreme Court held that communications tending to create or
promote marital disharmony are not protected under the confidential
communications privilege. Id. at 719 (stating, “there are instances where the
circumstances surrounding marital communications indicate that the
communications are intended to create or further disharmony in the marital
relationship; in those instances, the privilege yields.”). The Spetzer Court
reasoned:
It is safe to say that the communications appellee
made to his wife here-concerning appellee's past
(e.g., rape), continuing (e.g., witness intimidation),
and future-intended (e.g., attempted sexual assaults)
crimes against his wife and her minor children-are not
the sensitive, marital harmony-inspiring
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communications contemplated by the common law
authorities, or the Pennsylvania General Assembly, in
erecting this privilege. To the contrary, these
communications were intended to further marital
disharmony.
Id. at 720–721.
Similarly, in the instant matter, we agree with the trial court that
although Appellant’s actions do not rise to the level of those committed in
Spetzer, permitting him to invoke spousal communications privilege in a
situation involving a PFA where the act of sending the messages to the victim,
regardless of their content, fosters disharmony in the marriage and constitutes
an element of the crime of indirect criminal contempt, is both abhorrent and
contrary to the intent of the privilege. See trial court opinion, 11/1/21 at 7.
Accordingly, Appellant’s first claim of trial court error must fail.
Appellant next argues that there was insufficient evidence to sustain his
conviction for indirect criminal contempt because the Commonwealth failed to
prove that he had “clear notice of the conduct prohibited by the [PFA] order”
and that he acted with “wrongful intent.” Appellant’s brief at 30-33.
Our standard of review in evaluating a challenge to the sufficiency of
the evidence is as follows:
In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and
all reasonable inferences drawn therefrom, viewed in
the light most favorable to the Commonwealth as
verdict winner, is sufficient to prove every element of
the offense beyond a reasonable doubt. As an
appellate court, we may not re-weigh the evidence
and substitute our judgment for that of the fact-
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finder. Any question of doubt is for the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact can be drawn
from the combined circumstances.
Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations
omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).
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. Where a
PFA order is involved, an indirect criminal contempt
charge is designed to seek punishment for violation of
the protective order.
....
To establish indirect criminal contempt, it must be
shown that 1) the order was sufficiently clear to the
contemnor as to leave no doubt of the conduct
prohibited; 2) the contemnor had notice of the order;
3) the act must have been one prohibited by the
order; and 4) the intent of the contemnor in
committing the act must have been wrongful.
Commonwealth v. Padilla, 885 A.2d 994, 996-997 (Pa.Super. 2005)
(citations and internal quotation marks omitted), appeal denied, 897 A.2d
454 (Pa. 2006).
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we conclude that there was sufficient evidence to
sustain Appellant’s conviction for indirect criminal contempt of the temporary
PFA order. Here, the order at issue clearly prohibited Appellant “from having
ANY CONTACT with [victim], or any other person protected under this order
either directly or indirectly, at any location, including but not limited to any
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contact at [victim’s] or other protected party’s school, business, or place of
employment” . . . “by telephone or by any other means….” Temporary PFA
order, 7/26/21 at §§ 3-4.
As the trial court comprehensively noted in its opinion,
There is no doubt that [Appellant] received notice of
the [temporary PFA (hereinafter, “TPFA”)], having
been personally served with the TPFA on July 26,
2021, at 9:50pm, by Lieutenant Christopher
McCormick at 557 S. Christian St., Lancaster, PA
17602. Additionally, [Appellant] admitted to receiving
the TPFA and riding away with it in his backpack on
July 26, 2021. . . . [Appellant] testified that he was
present at the residence in the presence of the Victim
and was told to leave the premises by the police
officer. [Appellant] admitted that he did not read the
TPFA Order in the twelve (12) hours between the time
he was served with the TPFA at 9:50pm on July 26,
2021, and he began sending the text messages to
[victim] at 10:45am on July 27, 2021. [Pa.R.C.P.
1930.4(a)(1)] regarding service of original process in
domestic relations matter indicates inter alia that
service may be made by the sheriff or a competent
adult by handing a copy to the defendant. That rule
does not include an additional provision that an officer
review all the provisions in an order with a defendant.
It was incumbent upon [Appellant] in this case to
review the legal document served upon him on July
26, 2021. It is no defense for [Appellant] to state that
he failed to read an order of court during the twelve
(12) hours after being served before violating that
order.
....
After being served with a TPFA at 9:50pm, [Appellant]
rode to his sister’s home, possibly slept, woke up the
next day, and then volitionally acted by choosing to
contact [victim] via Facebook text messages rather
than reading the court order that, inter alia,
prohibited him from remaining in his former marital
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residence the prior night. [Appellant] deliberately
chose to send messages to [victim] the day after
being served with a TPFA that prohibited contact. He
had time to contemplate his actions. Given the
temporal proximity to his removal from the marital
home the prior evening, and the passage of time in
which he was in possession of the court order, the
court does not doubt that [Appellant] either read the
TPFA and chose to violate its prohibitions anyway, or
chose not to read it, despite having ample time to do
so. Either way, sending the messages to [victim]
constituted a volitional act on the part of [Appellant].
The actions of [Appellant] demonstrated his wrongful
intent. . . . The Victim testified that [Appellant]
regularly communicated with [her] through messages
on Facebook over a nine (9) year period. Therefore,
there was a substantial certainty that his act of
sending text messages to [victim] via Facebook would
place him in contact with [her] in violation of the
applicable TPFA.
Trial court opinion, 11/1/21 at 8-10.
Based on the foregoing, we agree that the Commonwealth presented
ample evidence to support Appellant’s conviction for indirect criminal
contempt.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2022
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