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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE HESSER :
:
Appellant : No. 435 MDA 2017
Appeal from the Judgment of Sentence February 7, 2017
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
12917-2016
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 08, 2017
Wayne Hesser appeals from the trial court’s judgment of sentence,
entered in the Court of Common Pleas of Luzerne County, after he was found
guilty of indirect criminal contempt1 (“ICC”) for violating a Protection from
Abuse (“PFA”) order and sentenced to three months’ probation. Counsel has
also filed an Anders2 brief on appeal, seeking to withdraw from
representation. After careful review, we affirm and grant counsel’s request to
withdraw.
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1 See 23 Pa.C.S. § 6114(a) (“Where 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 . . . or a court-approved consent
agreement, the court may hold the defendant in indirect criminal contempt
and punish the defendant in accordance with law.”).
2 Anders v. California, 386 U.S. 738 (1967).
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* Retired Senior Judge assigned to the Superior Court.
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On January 10, 2017, a Luzerne County trial judge issued a final PFA
order against Hesser, the complainant’s ex-boyfriend, effective January 12,
2017. The PFA states, in relevant part:
[Hesser] shall not abuse, harass, stalk or threaten or attempt to
use physical force that would reasonably be expected to cause
bodily injury to [complainant or the parties’ child] in any place
where they might be found.
* * *
[] Except as provided in paragraph 5 of this order, [Hesser] is
prohibited from having ANY CONTACT with [complainant], either
directly or indirectly, or [the parties’ child] protected under this
order, at any location, including but not limited to any contact at
[the complainant’s] school, business, or place of employment.
[Hesser] is specifically ordered to stay away from the following
locations for the duration of this order. Limited contact
regarding visitation/custody is permitted (text only).
Final PFA Order, 1/12/17, at 1-2 (emphasis added).
On January 19, 2017, Hesser was charged and arrested on two counts
of indirect criminal contempt after allegedly violating the PFA order. After a
hearing held on January 26, 2017, the trial court found Hesser guilty of one
count of indirect criminal contempt related to an alleged text message sent in
violation of the PFA order. Hesser was sentenced to three months’ probation
and ordered to comply with various conditions, including obtaining a mental
health evaluation, an anger management assessment, and a batterer’s
intervention. On February 6, 2017, Hesser filed a motion for reconsideration.
On February 7, 2017, the trial court denied the motion. Hesser filed a timely
notice of appeal; counsel filed a Pa.R.A.P. 1925(c)(4) Statement of Intent to
file an Anders brief. On appeal, Hesser raises one issue for our consideration:
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Whether the trial court abused its discretion in finding [] Hesser guilty of
indirect criminal contempt where the Commonwealth failed to prove beyond a
reasonable doubt that [] Hesser intentionally violated the PFA.
In order for counsel to withdraw from an appeal pursuant to Anders,
certain requirements must be met. Counsel must:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel's conclusion that the appeal is frivolous;
and
(4) state counsel's reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Our Court
must then conduct its own review of the proceedings and make an
independent judgment to decide whether the appeal is, in fact, wholly
frivolous. Id. at 359 (citation omitted).
Counsel has complied with the dictates of Anders and Santiago, having
made a conscientious examination of the record, controlling case law and
applicable statutes. Counsel has also identified for our Court the issues and
supporting testimony that may arguably be raised on appeal. Furthermore,
counsel has notified Hesser of his request to withdraw, furnished him with a
copy of the Anders brief, and advised him that he may retain new counsel,
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proceed pro se or raise any additional points that he deems worthy of our
consideration.3
With regard to our independent review of the issue on appeal, we note
that the standard of review of a contempt order is whether the trial court
abused its discretion. Commonwealth v. Baker, 766 A.2d 328, 331 (Pa.
2001) (citation omitted). An appellate court cannot find an abuse of discretion
merely for an error of judgment unless, in reaching a conclusion, the trial court
overrides or misapplies the law, or its judgment is manifestly unreasonable,
or the evidence of record shows that the court’s judgment exercised is
manifestly unreasonable or lacking in reason. Id.
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,[4] 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 constituting the violation must have been volitional; and
4) the contemnor must have acted with wrongful intent.
Commonwealth v. Jackson, 10 A.3d 341, 346 (Pa. Super. 2010), citing
Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007).
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3 Hesser has not filed a response.
4 “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.”
Commonwealth v. Baker, 722 A.2d 718, 720 (Pa. Super. 1999) (en banc)
(citations omitted).
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Moreover,
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. Williams v. Williams, [] 681 A.2d 181, 183
(Pa. Super. 1996)[.] We will reverse a trial court’s determination
only when there has been a plain abuse of discretion.
Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa. Super. 2002) (citation
omitted).
At the ICC hearing, the complainant testified that she received a text
message from Hesser asking her to withdraw the PFA, that if she did not
withdraw the petition he would make her life “F’ing” miserable, that she would
be sorry, and that the parties’ child would hate her. N.T. ICC Hearing,
1/26/17, at 16. The complainant testified that she felt “aggravated [and]
frustrated” when she saw the text because they had just finalized the PFA
order. Id. While the complainant did make a written statement to a police
officer about the text message, id., she did not have any documentary
evidence of the actual text message at trial because she had switched cellular
phones and the subject text no longer existed. Id. at 17. Complainant,
however, testified that she “kn[ew Hesser’s] style when he talks to [her],” id.
at 18, and that while the text message began with a discussion regarding the
parties’ child, it “slowly veer[ed] off . . . putting [her] down . . . [with things]
not pertaining to [their] child.” Id.
Officer Steven Lada of the Wilkes-Barre City Police Department
responded to the complainant when she called the police department to report
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an alleged PFA violation. Officer Lada testified that the complainant showed
him the subject text messages, which included Hesser’s name as the name on
the sender’s phone. The officer took a written statement from the complainant
which he used to file the instant charges against Hesser. See Affidavit of
Probable Cause, Officer Steven Lada, 1/13/2017. Officer Lada testified that
he did not remember the text message “verbatim” but he put the things that
“stuck out to [him]” in his police report. Id. 22. Finally, the officer testified
that the complainant’s testimony was consistent with the written statement
she had provided to him on the day of the incident. Id. at 21.
Hesser testified that, when read in the proper context, the text message
concerned the “wellbeing” of the parties’ son and that it was not meant in any
way to be threatening or harassing to the complainant. Id. at 23-25. He
specifically testified that the portion of his message telling the complainant
that she “F’d up” was never directed at her, but rather was a conversation
about the parties’ son and the disconcerting state of the custody situation.
Id. at 22-25. Moreover, Hesser testified that he never texted the complainant
that he would make her life difficult. Id. at 23.
Here, the complainant’s testimony regarding the harassing nature of
Hesser’s text message was verified by Officer Lada at the ICC hearing and in
his affidavit of probable cause. While Hesser may contend that he did not
have the requisite intent to violate the PFA order, the fact remains that a
factfinder could infer his wrongful intent from the vulgar language used in the
text as well as the fact that the content of the text had nothing to do with
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visitation or custody regarding the parties’ son. Commonwealth v. Taylor,
137 A.3d 611 (Pa. Super. 2016) (no other legitimate reason for contemnor’s
text message could be discerned, other than to harass or annoy former wife).
Finally, we find the PFA order’s language clear that Hesser is only permitted
to contact the complainant via text message with regard to matters concerning
custody or visitation of the parties’ son.
Accordingly, we conclude that the trial court did not abuse its discretion
when it concluded that Hesser violated the PFA and, as a result, was guilty of
indirect criminal contempt. Kolansky, supra. The trial judge found the
complainant and Officer Lada credible with regard to the content of the text
message. When viewed in the light most favorable to the Commonwealth, the
testimony demonstrates that Hesser did not have the intent to discuss custody
or visitation matters, but rather to harass or threaten the complainant by
denigrating her and her parenting of the parties’ minor son. See
Commonwealth v. Brumbaugh, 932 A.2d 108, 111 (Pa. Super. 2007)
(“[W]rongful intent can be imputed by virtue of the substantial certainty that
[one's actions will be] in violation of the PFA Order.”); Commonwealth v.
Haigh, 874 A.2d 1174 (Pa. Super. 2005) (judges should use common sense
and consider context and surrounding factors in making determination as to
whether violation of PFA is truly intentional).
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Judgment of sentence affirmed. Counsel’s request to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2017
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