Com. v. Laskowski, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID LASKOWSKI :
:
Appellant : No. 828 MDA 2019
Appeal from the Judgment of Sentence Entered May 7, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): 2017-12193
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JANUARY 13, 2020
Appellant, David Laskowski, appeals from the judgment of sentence of
six months’ imprisonment imposed for indirect criminal contempt for violations
of a Protection from Abuse (PFA) order. Appellant’s appellate counsel has filed
a petition to withdraw and an Anders1 brief, stating that the appeal is wholly
frivolous. After careful review, we grant counsel’s petition to withdraw and
affirm.
On October 31, 2017, the Complainant, B.A., obtained a final PFA order
(the PFA Order) which barred Appellant from having any form of contact with
her through October 31, 2020. This PFA Order provides that Appellant is
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* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
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excluded from Complainant’s residence on Steele Street in Hanover Township,
Pennsylvania, and that he has no right or privilege to enter or be present on
those premises. PFA Order ¶2. The PFA Order further prohibits Appellant
from any direct or indirect contact with Complainant and specifically bars him
from telephoning or texting her or contacting her by social media. Id. ¶¶3-4.
Appellant was convicted in 2018 of indirect criminal contempt for two
violations of the PFA Order and was sentenced to six months’ imprisonment
with credit for time served for one of the violations, followed by a consecutive
six month period of probation for the other violation. Indirect Criminal
Contempt Order, 11/20/18. Appellant was released from his prison sentence
for those convictions on the morning of April 27, 2019.
In the late afternoon of April 27, 2019, Appellant went to Complainant’s
Steele Street house and knocked on her door. N.T. at 4-6. The next day,
April 28, 2019, Appellant sent Complainant a Facebook video chat request.
Id. at 6-7, 9. Appellant was charged with violations of the PFA Order based
on these events.
The trial court held a contempt hearing on May 7, 2019, at which
Complainant, Appellant, and the police officer who responded to
Complainant’s April 27, 2019 911 call testified. Complainant testified that at
approximately 5:28 p.m. on April 27, 2019, she was in her house and heard
her dog barking outside and that when she looked out the window, she saw
Appellant petting her dog next to the door of her house and heard him
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knocking on her door. N.T. at 4-6, 10. Complainant also testified that she
was asleep the next afternoon and that when she woke up, she saw a 2:14
p.m. missed call Facebook video chat request from Appellant on her phone.
Id. at 6-7, 9-10. Appellant testified that he was not at Complainant’s house
on April 27, 2019. Id. at 12-13. Appellant admitted that he called
Complainant on April 28, 2019 via Facebook messenger, but testified that he
did so by accident and immediately canceled the call. Id. at 13-16. The police
officer testified that he and his partner searched the area near Complainant’s
house following Complainant’s 911 call and did not find Appellant. Id. at 11-
12.
At the close of the hearing, the trial court found Appellant guilty of both
violations. N.T. at 16. The trial court sentenced Appellant to six months’
imprisonment for each violation, with the sentences to run concurrently, and
provided in its order that Appellant was work-release eligible. Id. at 16-17;
Indirect Criminal Contempt Order, 5/7/19. The trial court also extended the
PFA Order until May 7, 2022, as a result of Appellant’s violations. N.T. at 17.
On May 17, 2019, Appellant filed the instant timely direct appeal.2 On
September 26, 2019, appellate counsel filed an Anders brief and petition to
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2Appellant timely filed a statement of errors complained of on appeal on June
10, 2019 listing the same appellate issue as counsel sets forth in his Anders
brief. The trial court entered its opinion on July 15, 2019.
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withdraw as counsel. In his Anders brief, appellate counsel presents the
following single issue:
Did the Commonwealth establish, beyond a reasonable doubt,
that the Appellant possessed and/or acted with wrongful intent
when allegedly committing the violation that served as the basis
for a charge of indirect criminal contempt?
Anders Brief at 2. Appellant has not filed any pro se response to counsel’s
petition to withdraw or Anders brief. On October 24, 2019, the
Commonwealth advised the Court that it had elected not to file a brief.
Before this Court can consider the merits of this appeal, we must first
determine whether appellate counsel has satisfied all of the requirements that
court-appointed counsel must meet before leave to withdraw may be granted.
Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en
banc); Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)
(en banc).3
To withdraw from representing a convicted defendant on direct appeal
on the basis that the appeal is frivolous, counsel must (1) petition the court
for leave to withdraw stating that he has made a conscientious examination
of the record and has determined that the appeal would be frivolous; (2) file
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3 Although it appears that Appellant finished serving his sentence for the
instant contempt convictions on October 30, 2019, this appeal is not moot.
Appellant’s six-month probation that he was still serving for his earlier
violation of the PFA Order was revoked based on these convictions and he was
resentenced to a consecutive six months’ imprisonment for the probation
violation. Indirect Criminal Contempt Order, 6/28/19.
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a sufficient Anders brief; and (3) provide a copy of the Anders brief to the
defendant and advise the defendant of his right to retain new counsel or to
raise pro se any additional points that he deems worthy of the court’s
attention. Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 (Pa.
Super. 2016); Goodwin, 928 A.2d at 290. An Anders brief must comply with
the all of the following requirements:
[T]he Anders brief … 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); see also
Dempster, 187 A.3d at 270; Commonwealth v. Zeigler, 112 A.3d 656, 660
(Pa. Super. 2015). If counsel has satisfied the above requirements, it is then
this Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is wholly frivolous.
Dempster, 187 A.3d at 271; Zeigler, 112 A.3d at 660.
In this appeal, appellate counsel states in his petition to withdraw that
he has reviewed the entire record and determined that there are no non-
frivolous grounds for the appeal. Appellate counsel’s September 26, 2019
letter to Appellant enclosed a copy of the Anders brief and advised him of his
right to either retain new counsel or proceed pro se on appeal and to raise any
points that he deems worthy of the Court’s attention. Further, appellate
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counsel’s Anders brief provides a procedural and factual summary of the case
with references to the record and cites and discusses the applicable law on
which counsel bases his conclusion that there are no non-frivolous issues that
he can raise on Appellant’s behalf. Appellate counsel has thus filed a sufficient
Anders brief and has fully complied with the procedural requirements for
withdrawal as counsel in both appeals.
We therefore proceed to conduct an independent review to ascertain
whether the appeal is indeed wholly frivolous. This Court first considers the
issue raised by counsel in the Anders brief and determines whether it is in
fact frivolous. Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super.
2018) (en banc); Dempster, 187 A.3d at 272. In addition, if the Court finds
all of those issues frivolous, this Court conducts an examination of the record
to discern if there are any other issues of arguable merit overlooked by
counsel. Yorgey, 188 A.3d at 1196-97; Dempster, 187 A.3d at 271-72.
The lone issue raised in counsel’s Anders brief is whether the evidence
at the contempt hearing was sufficient to prove an element of the contempt
charge against him. In an appeal from a contempt conviction challenging the
sufficiency of the evidence, this Court’s review is confined to a determining
whether the facts support the trial court’s decision. Commonwealth v.
Lambert, 147 A.3d 1221, 1226 (Pa. Super. 2016); Commonwealth v.
Brumbaugh, 932 A.2d 108, 111 (Pa. Super. 2007). In this review,
we must determine whether the evidence admitted at trial, and all
reasonable inferences drawn from that evidence, when viewed in
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the light most favorable to the Commonwealth as verdict winner,
was sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. 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. Reese, 156 A.3d 1250, 1257-58 (Pa. Super. 2017).
(quoting Commonwealth v. Taylor, 137 A.3d 611 (Pa. Super. 2016) (en
banc)).
Indirect criminal contempt is a violation of a court order or decree that
occurred outside the presence of the court. Commonwealth v. McMullen,
961 A.2d 842, 849 (Pa. 2008); Lambert, 147 A.3d at 1226; Brumbaugh,
932 A.2d at 110. To prove indirect criminal contempt, the Commonwealth
must prove: 1) that the order was sufficiently definite, clear, and specific to
leave no doubt or uncertainty in the defendant’s mind as to the conduct
prohibited; 2) that the defendant had notice of the order; 3) that the act
constituting the violation was volitional; and 4) the defendant acted with
wrongful intent. Commonwealth v. Baker, 766 A.2d 328, 331 (Pa. 2001);
Lambert, 147 A.3d at 1226; Brumbaugh, 932 A.2d at 110.
The evidence at the contempt hearing was plainly sufficient to prove
each of these elements beyond a reasonable doubt. The PFA Order specifically
and clearly prohibits Appellant from coming to Complainant’s house and from
contacting her by telephone, texting, or social media. PFA Order ¶¶2-4.
Appellant stipulated at the contempt hearing that the PFA Order was in effect,
and admitted that he was familiar with the PFA Order and its terms. N.T. at
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4, 14-15. Indeed, Appellant had been through contempt proceedings six
months earlier in which he was found to have violated the PFA Order and he
had just been released from prison for the prior contempt. Complainant’s
testimony was sufficient to prove that Appellant went to her house in violation
of the PFA Order. N.T. at 4-6. Complainant’s and Appellant’s testimony
established that Appellant sent Complainant a social media video chat request
in violation of the PFA Order. Id. at 6-7, 9-10, 13-15. Both these acts could
properly be found to be volitional acts. While Appellant denied that he went
to Complainant’s house and contended that his social media contact was
accidental rather than intentional, the trial court found Complainant’s
testimony credible and rejected as not credible Appellant’s denial and claim
that the video chat request was accidental. Trial Court Opinion at 3-4.
There was likewise sufficient evidence to prove the element of wrongful
intent beyond a reasonable doubt. Wrongful intent can be inferred where the
defendant chooses to act in a way that is substantially certain to violate terms
of a court order of which he was aware. Reese, 156 A.3d at 1258-60;
Lambert, 147 A.3d at 1227; Brumbaugh, 932 A.2d at 111. Here, Appellant’s
acts of going to Complainant’s house and sending Complainant a social media
chat request were substantially certain to violate the terms of the PFA Order.
Based on the foregoing, we agree with appellate counsel that the issue
raised by Appellant lacks any arguable merit. In addition, we have reviewed
the certified record and have discovered no additional non-frivolous issues.
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Therefore, we grant appellate counsel’s petition to withdraw and affirm the
sentencing court’s judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2020
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