Com. v. Formica, R. ( 2015 )

J-S58033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD FORMICA
Appellant No. 524 MDA 2015
Appeal from the Judgment of Sentence February 17, 2015
In the Court of Common Pleas of Lancaster County
Civil Division at No(s): CI-14-04906; ICC-15-0003
BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 15, 2015
Appellant, Richard Formica, appeals from the judgment of sentence
entered in the Lancaster County Court of Common Pleas, following his bench
trial conviction of indirect criminal contempt.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issue for our review:
WAS THE EVIDENCE PRESENTED BY THE COMMONWEALTH
INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT
THAT [APPELLANT] WAS GUILTY OF INDIRECT CRIMINAL
CONTEMPT WHERE [APPELLANT’S] MOUTHING OF
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1
23 Pa.C.S.A. § 6114(a).
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S58033-15
INAUDIBLE WORDS DURING A COURT PROCEEDING WAS
DE MINIMIS, NON-THREATENING AND DONE WITHOUT
THE REQUIRED WRONGFUL INTENT?
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Merrill M.
Spahn, Jr., we conclude Appellant’s issue merits no relief. The trial court’s
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed May 21, 2015, at 6-8) (finding:
Appellant had been advised of Protection from Abuse order and had
requirements thoroughly explained to him; despite order not to interact with
victim, Appellant looked at victim and directed comments at her at January
7, 2015 hearing; victim testified at January 27, 2015 hearing that Appellant
stared at her at January 7, 2015 hearing and whispered words that sounded
like “fuck you,” and that Appellant’s comments caused victim extreme
concern because Appellant “scares [victim] to death”; Officer Joel Ayers
testified at January 27, 2015 hearing that he observed Appellant look at
victim during January 7, 2015 hearing and mouth something inaudible such
as “why” or “what,” which caused victim to become distraught and to start
physically shaking and trembling; despite inconsistency in testimony as to
Appellant’s exact words, there is no doubt Appellant stared at victim and
said something that immediately made victim anxious and fearful;
Appellant’s comments served no legitimate purpose and, given history
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J-S58033-15
between Appellant and victim, were threatening or intimidating in nature;
Commonwealth v. Haigh is factually distinguishable because infraction in
Haigh was de minimis and non-threatening in nature and was insufficient to
establish any wrongful intent by defendant; conversely, Appellant’s
comments were made to influence victim, intimidate her, or blame her for
circumstances in which Appellant found himself as result of his actions;
based upon totality of circumstances and credibility of witnesses, Appellant’s
comments and actions were volitional in nature and made with wrongful
intent, which is sufficient to sustain conviction for indirect criminal
contempt).2 The record supports the trial court’s decision; therefore, we
have no reason to disturb it. Accordingly, we affirm on the basis of the trial
court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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2
The following errors appear in the trial court’s opinion:
(a) page 5, paragraph 3, lines 2-3, Commonwealth v. Haigh, 874 A.2d
1174 (Pa.Super. 2013) should be (Pa.Super. 2005);
(b) page 8, paragraph 3, line 2, Estepp, 17 A.3d at 934-44 should be at
944.
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