Shulla, M. v. Knorr, C., Jr. ( 2022 )

J-A14010-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHELLE SHULLA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLAYTON L. KNORR, JR. :
:
Appellant : No. 1217 MDA 2021
Appeal from the Judgment of Sentence Entered August 17, 2021
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2021-05213
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 28, 2022
Appellant, Clayton L. Knorr, Jr., appeals from the judgment of sentence
of two months’ probation, imposed after the trial court convicted him of
indirect criminal contempt (“ICC”) for having violated a protection from abuse
(“PFA”) order issued under the Protection from Abuse Act, (“PFAA”), 23
Pa.C.S. § 6101 et seq. Counsel seeks permission to withdraw from further
representation pursuant to Anders v. California, 386 A.2d 738 (Pa. 1967).1
Upon review, we find that counsel’s Anders brief satisfies the requirements
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* Former Justice specially assigned to the Superior Court.
1 Counsel initially filed an Anders brief on February 8, 2022, which was
stricken by this Court on February 15, 2022, for failure to comply with the
procedural and substantive requirements of Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009), and for failure to file a petition to withdraw or a
letter advising Appellant of his rights pursuant to Commonwealth v.
Millisock, 873 A.2d 748 (Pa. Super. 2005). On February 28, 2022, counsel
filed an application to withdraw as counsel and an amended Anders brief.
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set forth in Santiago, supra. Accordingly, we grant counsel’s petition to
withdraw and affirm the judgment of sentence.
This matter was initiated by a temporary PFA order obtained by Michelle
Shulla against Appellant on May 24, 2021. After several continuances, a
hearing on the temporary PFA was scheduled for August 17, 2021. In the
meantime, the Plains Township Police Department filed a complaint against
Appellant, charging him with ICC for violation of the PFA order, pursuant to
23 Pa.C.S. § 6114(a). Attached to its complaint was an affidavit of probable
cause, in which the arresting officer stated:
On 6/13/2021[,] at approximately 13:52 hours[,] Michelle Shulla
received a phone call from a private number and answered the
call. Shulla stated that the call was made by her ex[-]boyfriend
([Appellant]) who she currently has an active NO Contact PFA
against…. Shulla stated that she knows the call came from
[Appellant] because she recognized his voice. Shulla then
reported the incident to county 911 and shortly after came to the
Plains Township Police Station and provided a written statement
that reflects the above. The order was also confirmed to have
been served to [Appellant] on 06/04/2021 while he was
incarcerated at [the Luzerne County Correctional Facility
(“LCCF”)]….
Affidavit of Probable Cause, 6/13/21 (single page). An ICC hearing was held
on August 17, 2021, in conjunction with the continued PFA hearing.
Ms. Shulla, Appellant, and Appellant’s sister, Tammy Knorr, testified at
the August 17, 2021 hearing, regarding the ICC charge. After hearing the
testimony of the witnesses, the trial court entered an order finding Appellant
guilty of violating the PFA order and sentenced him to a term of two months’
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probation. Additionally, the trial court issued a final PFA order against
Appellant, with an expiration date of August 17, 2022.
On September 15, 2021, Appellant filed a timely notice of appeal from
the August 17, 2021 judgment of sentence. On September 17, 2021, the trial
court directed Appellant to file a concise statement of errors complained of on
appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The trial
court filed a Rule 1925(a) opinion on November 23, 2021.
Appellant now presents the following issues for our review, via counsel’s
Anders brief:
1. Whether the evidence was sufficient to find [Appellant] guilty
of violating the [PFA o]rder?
2. Whether the facts presented support an arguable appellate
issue?
Anders Brief at 3.
“When faced with a purported Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)
(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.
1997)).
Court-appointed counsel who seeks to withdraw from representing
an appellant on direct appeal on the basis that the appeal is
frivolous must:
(1) petition the court for leave to withdraw stating that,
after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous;
(2) file a brief referring to anything that arguably might
support the appeal but which does not resemble a “no-
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merit” letter or amicus curiae brief; and (3) furnish a copy
of the brief to the [appellant] and advise the [appellant] of
his or her right to retain new counsel or raise any additional
points that he or she deems worthy of the court’s attention.
Commonwealth v. Miller, 715 A.2d 1203[, 1207-08] (Pa. Super.
1998) (citation omitted).
Rojas, 874 A.2d at 639. Appellant’s counsel has complied with these
requirements. Counsel petitioned for leave to withdraw, and filed a brief
satisfying the requirements of Anders, as discussed, infra. Counsel also
provided a copy of the brief to Appellant, and he submitted proof that he
advised Appellant of his right to retain new counsel, proceed pro se, and/or to
raise new points not addressed in the Anders brief.
Our Supreme Court has held, in addition, that counsel must explain the
reasons underlying his assessment of Appellant’s case and his conclusion that
the claims are frivolous. Thus, counsel’s Anders brief must satisfy the
following criteria before we may consider the merits of the underlying appeal:
[W]e hold that in the Anders brief that accompanies court-
appointed counsel’s petition to withdraw, 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.
Santiago, 978 A.2d at 361.
Upon review of the Anders brief submitted by Appellant’s counsel, we
find it complies with the technical requirements of Santiago. Counsel’s
Anders brief (1) provides a summary of the procedural history and facts of
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this case; (2) directs our attention, when applicable, to the portions of the
record that ostensibly supports Appellant’s claim of error; (3) concludes that
Appellant’s claim is frivolous; and (4) does so by citation to the record and
appropriate/applicable legal authorities.2 Thus, we now examine whether
Appellant’s claim is, indeed, frivolous. We also must “conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en
banc).
We review a challenge to the sufficiency of the evidence mindful of the
following standard of review:
In determining whether the evidence was sufficient to support a
defendant’s conviction, we must review the evidence admitted
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2 Counsel cited the notes of testimony from the August 17, 2021 contempt
hearing in his Anders brief; however, the transcript was not included in the
certified record. Our law is unequivocal that it is “the appellant’s responsibility
to order the transcript required and ascertain its presence in the record prior
to certification for appeal.” Commonwealth v. O’Black, 897 A.2d 1234,
1238 (Pa. Super. 2006). See also Pa.R.A.P. 1911(a). In the event that
counsel discovers an omission after the record is certified, he may correct the
omission by requesting transmittal of a supplemental certified record. See
Pa.R.A.P. 1926(b)(2). It is not the responsibility of the appellate court to
obtain the necessary transcript. Commonwealth v. Preston, 904 A.2d 1, 7
(Pa. Super. 2006). “If, however, … notes of testimony are cited specifically by
the parties …, then we have reason to believe that such evidence exists[, and
i]n this type of situation, we might well make an informal inquiry to see if
there was an error in transmitting the certified record to this Court.” Id. at
8. Hence, we contacted the Luzerne County Prothonotary and obtained a copy
of the missing transcript. While we were able to overlook counsel’s failure to
ensure that the certified record was complete in this instance, we warn counsel
not to disregard the Pennsylvania Rules of Appellate Procedure in the future.
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during the trial along with any reasonable inferences that may be
drawn from that evidence in the light most favorable to the
Commonwealth as the verdict winner. If we find, based on that
review, that the jury could have found every element of the crime
beyond a reasonable doubt, we must sustain the defendant’s
conviction.
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010). “The
Commonwealth may sustain its burden by means of wholly circumstantial
evidence. Further, the trier of fact is free to believe all, part, or none of the
evidence.” Commonwealth v. Taylor, 137 A.3d 611, 614 (Pa. Super. 2016).
Section 6114 of the PFAA provides:
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, a foreign protection
order or a court-approved consent agreement, the court may hold
the defendant in indirect criminal contempt and punish the
defendant in accordance with the law.
23 Pa.C.S. § 6114(a). To establish indirect criminal contempt, the
Commonwealth must prove that:
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.
Taylor, 137 A.3d at 615 (citation omitted).
Here, the PFA order issued on May 24, 2021, expressly states:
1. [Appellant] shall not abuse, harass, stalk, threaten, or attempt
or threaten to use physical force against any of the above
persons in any place where they might be found.
…
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3. Except for such contact with the minor child/ren as may be
permitted under Paragraph 5 of this order, [Appellant] is
prohibited from having ANY CONTACT with [Ms. Shulla], or any
other person protected under this order, either directly or
indirectly, at any location, including but not limited to any
contact at [Ms. Shulla’s] school, business, or place of
employment….
4. Except for such contact with the minor child/ren as may be
permitted under Paragraph 5 of this order, [Appellant] shall not
contact [Ms. Shulla], or any other person protected under this
order, by telephone or by any other means, including through
third persons.
PFA Order, 5/24/21, at 1.
We deem the language of the PFA order to be sufficiently clear to leave
Appellant with no doubt as to the type of conduct prohibited. See Taylor,
supra. Moreover, the record reflects that Appellant was aware of the PFA
order in place at the time of his alleged violation. See N.T. Hearing, 8/17/21,
at 8 (Appellant’s acknowledgment of a prior PFA hearing and that “there was
to be no contact”). Thus, the first two elements needed to establish ICC have
been met.
As to the third and fourth elements needed to establish ICC, Appellant’s
sufficiency claim focuses solely on the trial court’s credibility determinations
regarding the parties’ testimony. Ms. Shulla testified at the hearing that she
received a phone call from Appellant on June 13, 2021, during which he said
to her, “do you want this to go away[,] or do I have to make it worse?” N.T.
Hearing at 4-5. In response, Ms. Shulla “just cried and … hung up.” Id. at 5.
She stated that she then called 911 and filed a police report. Id. at 6.
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Contrarily, Appellant and Ms. Knorr insisted that Appellant did not
initiate the phone call on June 13, 2021. Rather, they both testified that Ms.
Shulla placed the call and attempted to trick Appellant into talking to her. Id.
at 8-9, 11. After hearing all of the testimony, the trial court found that the
Commonwealth had met its burden of establishing the ICC charge, “based
upon what the court deem[ed] to be credible evidence presented before it[.]”
Id. at 13.
The trial court was free to believe all, part, or none of the evidence
presented. See Taylor, supra. Clearly, it found Ms. Shulla’s testimony to
be credible. It is well-established that credibility determinations are strictly
within the province of the finder of fact and, thus, we may not re-weigh the
evidence and substitute our judgment for that of the trial court.
Commonwealth v. Gibson, 720 A.2d 473, 480 (Pa. 1998). Accordingly,
mindful of the trial court’s credibility determinations and viewing the evidence
in the light most favorable to the Commonwealth, we agree that the record
contains sufficient evidence to support the trial court’s finding that the
Commonwealth met its burden of establishing ICC.
Finally, our review of the record reveals no other potential, non-frivolous
issues that Appellant could raise on appeal. As such, we agree with counsel
that a direct appeal in this case is wholly frivolous. Accordingly, we grant
counsel’s motion to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/28/2022
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