Com. v. Olivo-Vazquez, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CARLOS OLIVO-VAZQUEZ :
:
Appellant : No. 1956 MDA 2017
Appeal from the Judgment of Sentence Entered November 1, 2017
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-16-01702
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 14, 2019
Carlos Olivo-Vazquez appeals from the judgment of sentence of six
months’ incarceration plus costs, imposed on November 1, 2017, following his
conviction for indirect criminal contempt of a final Protection From Abuse (PFA)
order.1 We affirm.
The parties are familiar with the relevant facts and procedural history.
In February 2016, L.C. obtained a temporary PFA order against Olivo-Vazquez
on behalf of her minor daughter, T.C. Since that time, Olivo-Vazquez has been
charged with violating its terms on multiple occasions. For example, in
September 2016, the Commonwealth charged him with 75 counts of indirect
criminal contempt; Olivo-Vazquez pleaded guilty to those charges; and the
court thereafter sentenced him to 11½ months’ incarceration followed by
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1 23 Pa.C.S.A. § 6114(a).
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three years’ probation. Concurrent with this judgment of sentence, the court
imposed a sentence of one to two years’ incarceration, less one day, followed
by 4 years’ probation for stalking, intimidation of a witness, and terroristic
threats. See Trial Court Opinion, filed March 22, 2018, at 4. Also in September
2016, the court entered a final PFA against Olivo-Vazquez for a period of three
years. PFA Order, 09/2/2016
In October 2017, the Commonwealth again charged Olivo-Vazquez with
indirect criminal contempt, alleging that he had posted online T.C.’s name and
home address and indicated his desire for someone to harm her. See Criminal
Complaint, OTN No. T-985660-4, 10/26/2017. In November 2017, the court
held a hearing, during which the Commonwealth introduced testimony from
L.C., who authenticated a printout from a Facebook user profile identified as
“Loose Screw.” See Notes of Testimony (N.T.), 11/01/2017, at 6 (admitting
Commonwealth’s Exhibit No. 1 without objection). L.C. testified that “Loose
Screw” was a pseudonym for Olivo-Vazquez. See id. at 6-9.
The printout included posts authored by the owner of the Facebook
profile, i.e., Olivo-Vazquez. The contents of these posts included an electronic
scan of prior testimony by T.C., which referenced her prior relationship with
Olivo-Vazquez, as well as the following statement:
[Loose Screw:] Whoever know the bitch [T.C.] she a rat
paperwork coming up soon and if she hit any of ya bitches up …
its not me she krafty and know how to hack your shit … she live
[T.C.’s address] She had me locked up for a whole year cause I
ain’t wanna be with her … somebody fuck this bitch up on
mommy[.]
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Commonwealth’s Exhibit No. 1 (grammatical errors in original). In her
testimony, L.C. affirmed the biographical details included in these posts. N.T.
at 5, 7, 8.
Following the hearing, the court found Olivo-Vazquez guilty and
sentenced him as noted above. He timely appealed and filed a court-ordered
Pa.R.A.P. 1925(b) statement. The trial court issued a responsive opinion.
In this appeal, Olivo-Vazquez challenges the sufficiency of the evidence
against him. See Olivo-Vazquez’s Br. at 4. Specifically, he asserts that the
circumstantial evidence presented by the Commonwealth was insufficient to
establish that he was the author of the “Loose Screw” Facebook posts. Id. at
8. Thus, Olivo-Vazquez concludes, we should vacate his judgment of sentence.
Id. at 13.
“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.” Commonwealth v. Lambert, 147
A.3d 1221, 1226 (Pa.Super. 2016) (quoting Buchhalter v. Buchhalter, 959
A.2d 1260, 1261 (Pa.Super. 2008)); see 23 Pa.C.S.A. § 6102(a).
The Commonwealth may charge a person with indirect criminal
contempt if he violates a PFA protective order outside the presence of the
court. See Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa.Super.
2007); 23 Pa.C.S.A. § 6114. To establish indirect criminal contempt, the
Commonwealth must establish: (1) the order was sufficiently definite, clear,
and specific to the contemnor as to leave no doubt of the conduct prohibited;
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(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. Walsh, 36 A.3d 613, 619
(Pa.Super.2012); Brumbaugh 932 A.2d at 110.
Our standard of review is as follows:
[W]hen 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.
Lambert, 147 A.3d at 1226 (quoting Commonwealth v. Kolansky, 800
A.2d 937, 939 (Pa.Super.2002)) (internal citations omitted). Here, Olivo-
Vazquez asserts the evidence was insufficient, which raises a question of law
governed by the following principles:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the 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
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credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Brumbaugh 932 A.2d at 109-10 (citation omitted).
In suggesting to this Court that he was not the author of the “Loose
Screw” Facebook posts, Olivo-Vazquez essentially challenges the third and
fourth elements of an indirect criminal contempt charge, i.e., a volitional act
committed with wrongful intent.2 In so doing, Olivo-Vazquez suggests we
reject L.C.’s testimony, arguing that he is not the only person that knows the
victim’s home address, pictures of him appearing on the “Loose Screw” profile
page could have been uploaded by anyone, and a prior judgment of sentence
imposed against him, referenced in the Facebook post, was publicly available
information. Olivo-Vazquez’s Br. at 10-12.
However, in evaluating the evidence, the trial court reasoned as follows:
[T]he testimony presented by [L.C.] … [was] credible in nature
and supportive of the court’s conclusion that there existed no
viable explanation other than it was [Olivo-Vazquez] who
authored the Facebook posts at issue. Stated another way, the
testimony presented clearly established that recent photographs
of [Olivo-Vazquez] were depicted on this Facebook page. In
addition, the court looked to the context of the postings at issue.
The author of these postings was an individual that possessed full
knowledge regarding the minor victim, including: her name, her
address, the fact that she resided with her mother, and details as
to the nature of her [prior] romantic relationship with [Olivo-
Vazquez]. In addition, the author of these postings referred to
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2Olivo-Vazquez conceded service of the order at the evidentiary hearing and
has presented no argument to this Court regarding the clear and definite
nature of the conduct prohibited. N.T. at 24; see Olivo-Vazquez’s Pa.R.A.P.
1925(b) Statement, 01/23/2018; Trial Ct. Op. at 6; see generally Olivo-
Vazquez’s Br. at 7-13. Thus, we need not address these elements of the
charge.
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himself in the first person, was clearly angry with the minor victim,
and had knowledge of the full details of the instant matter and
related criminal prosecutions.
...
It is further noted that the content of the messages at issue clearly
demonstrated [Olivo-Vazquez’s] … intent in authoring such
messages was to serve as an invitation and/or direction for
someone to inflict physical violence upon the minor [v]ictim. … As
such, [Olivo-Vazquez] was clearly engaging in threatening
behavior that falls within a reasonable person’s understanding of
the prohibition against stalking, harassing, or threatening conduct
against the protected party or parties included in the [f]inal [PFA]
order. As such, for the reasons noted, this court has no doubt that
the comments made by [Olivo-Vazquez] were volitional in nature
and made with wrongful intent sufficient to sustain a conviction of
[i]ndirect [c]riminal [c]ontempt.
Trial Ct. Op. at 7-8.
We agree. Viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, and based on the testimony of L.C., there
was sufficient evidence for the trial court to conclude that Olivo-Vazquez had
authored the Facebook posts threatening T.C. Moreover, with the Facebook
posts, as authenticated by L.C., the Commonwealth presented sufficient
evidence that Olivo-Vazquez violated the terms of the final PFA order and,
thus, committed indirect criminal contempt.3 Accordingly, we affirm the
judgment of sentence.
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3To the extent Olivo-Vazquez now seeks to challenge the admissibility of the
Commonwealth’s Exhibit No. 1, he has failed to properly preserve any
challenge to the authenticity of this evidence. See Olivo-Vazquez’s Br. at 9-
11 (citing, e.g., Commonwealth v. Mangel, 181 A.3d 1154 (Pa.Super.
2018); Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011)). It appears
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2019
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that Olivo-Vazquez has conflated the proper authentication of evidence, an
issue addressing the admissibility of evidence, with its credibility or persuasive
force, considerations implicating the weight of the evidence. These are distinct
issues. Here, Olivo-Vazquez did not object when the Commonwealth moved
for admission of Exhibit No. 1; thus, it became part of the evidentiary record.
See N.T. at 9. Moreover, Olivo-Vazquez did not include an evidentiary
challenge to Exhibit No. 1 in his Pa.R.A.P. 1925(b) statement. See Olivo-
Vazquez’s Pa.R.A.P. 1925(b) Statement. To be clear, Olivo-Vazquez has
waived any challenge to the admissibility of the Commonwealth’s Exhibit No.
1. See Pa.R.A.P. 302(a), 1925(b). Nevertheless, absent waiver, his arguments
are without merit. The Commonwealth established the authenticity of the
“Screw Loose” Facebook posts with detailed testimony from L.C. identifying
Olivo-Vazquez as the author. See N.T. at 6-16; Trial Ct. Op. at 7-8. This
circumstantial evidence “corroborate[d] the identity of the author of the
communication[s] in question” and provided “contextual clues … tending to
reveal [his] identity” Mangel, 181 A.3d at 1162.
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