Com. v. Taylor, R. ( 2014 )

J-A19026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT WAYNE TAYLOR, II,
Appellant No. 1723 WDA 2013
Appeal from the Judgment of Sentence of September 24, 2013
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-MD-0000212-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT WAYNE TAYLOR, II,
Appellant No. 1724 WDA 2013
Appeal from the Judgment of Sentence of September 24, 2013
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-MD-0000197-2013
BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.
DISSENTING MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 26, 2014
Because I believe that the learned majority views the evidence in the
light most favorable to Appellant, in contravention of our clear standard of
review, and because I believe there was sufficient evidence to support the
* Former Justice specially assigned to the Superior Court.
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intent to support both indirect criminal
contempt convictions, I respectfully dissent.
Appellant argues that the trial court convicted him of both counts of
indirect criminal contempt based upon the PFA order entered on May 18,
2012, without regard to the custody modification order entered on May 22,
at 1.
Appellant argues that his communications with Joy N. Kochman (Ms.
marital residence, so that the children could be closer to their school. Id. at
2-
reason for commu
Id. at 3. He claims that the subject text message
and request for communication through his daughter at a custody exchange
where he would
Id. at 5. As such, Appellant contends that the
Id. at 4. I disagree.
Our standard of review is well-settled:
In reviewing the sufficiency of the evidence, we view all the
evidence admitted at trial in the light most favorable to the
Commonwealth, as verdict winner, to see whether there is
sufficient evidence to enable the factfinder to find every
element of the crime beyond a reasonable doubt. This
standard is equally applicable to cases where the evidence
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is circumstantial rather than direct so long as the
combination of the evidence links the accused to the crime
beyond a reasonable doubt. Although a conviction must be
based on more than mere suspicion or conjecture, the
Commonwealth need not establish guilt to a mathematical
certainty. Moreover, when reviewing the sufficiency of the
evidence, this Court may not substitute its judgment for
that of the fact-finder; if the record contains support for the
convictions they may not be disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013) (internal
citations, quotations, and brackets omitted).
As the majority sets forth, pursuant to 23 Pa.C.S.A. 6114,
[w]here 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 law.
23 Pa.C.S.A. § 6114(a).
designed to seek punishment for violat
Commonwealth v. Jackson, 10 A.3d 341, 346 (Pa. Super. 2010) (citation
omitted). To establish indirect criminal contempt, 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.
Id. (citation omitted).
Here, the PFA order states:
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[Appellant] shall not abuse, harass, stalk, or threaten any of
the above persons in any place where they might be found.
Except as provided in paragraph 5 of this order, [Appellant]
shall not contact [Ms. Kochman], or any other person
protected under this order, by telephone or by any other
means, including through third persons.
* * *
purposes of custody scheduling only, without said contact
constituting violation of this order. All other terms of this
order remain in effect during such contact.
PFA Order, 5/18/2012, at 1, 4.
Thereafter, on May 22, 2013, a custody order was entered by consent
of the parties providing, in pertinent part:
6. The parties may have text communication with one
another for legitimate issues involving the children.
Order, 5/22/2013, at 3.
The trial court determined that Appellant engaged in two
communications with Ms. Kochman that constituted violations of the PFA
order. The first communication was
21, 2013; the other was via text message on July 13, 2013. In so
determining, the trial court concluded:
It is undisputed that the PFA Order was clear, that
[Appellant] was aware of them, and that [Appellant]
voluntarily initiated both communications with [Ms.
Kochman]. With regard to wrongful intent, the [trial court
-being or custody
schedule, but instead was to discuss with Ms. Kochman the
outstanding issues regarding their jointly-held real property
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quick resolution. The [trial court] also noted as part of its
findings that [Appellant] had violated the PFA Order on 11
occasions, eliminating any possibility that the
communications were unintentional or benign.
conclusions.
I reviewed the two communications that served as the basis of the
individual convictions separately. With regard to the communication on June
21, 2013, there is no dispute that during a custody exchange at a Sheetz
convenience store, Appellant communicated with Ms. Kochman through the
2013, at 10-11, 17-18. In reading the
PFA order and the custody consent order together, Appellant was not
for pur
Appellant permitted contact with Ms. Kochman through a third party.
Appellant does not dispute that he had notice of the PFA order and the
custody consent order and Appellant admitted that he initiated contact with
Ms. Kochman through their daughter, a volitional act. Thus, the first three
elements above, as required to establish indirect criminal contempt, have
been met with regard to the conviction related to the communication via the
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As for the fourth element needed to establish indirect criminal
Regarding the incident at Sheetz, Ms. Kochman testified that Appellant was
move into the other house if it [were] going to be a PFA violation for him to
Id. at 11. She further testified that Appellant stated:
and
are going to be turning me in for PFA violations. [To which
you in.
Id. at 14.
explained
his reasons for communicating with Ms. Kochman as follows:
There has been the house has not been paid for for
almost a year and I made arrangements with the bank to
try to get back into it. They told me unless this paperwork
is filled out and signed by her, then they are not going to
refinance or they are just going to foreclose on the house
because they are not going to try and work with it.
Id. at 16. Regarding the incident at Sheetz, Appellant testified:
I asked [the oldest daughter] to go over and ask her mom if
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coming up soon to get the paperwork done. She ran over
and talked to her mom and ran back over to me.
At that time, [Ms. Kochman] stepped out of her car and
walked to the back of her car. I did not step any closer to
me and the girls walked into Sheetz.
Id. at 18.
Appellant claims that the foregoing evidence establishes that his intent
was to communicate regarding the living arrangements and possible
-
being or custody schedule, but instead was to discuss with Ms. Kochman the
outstanding issues regarding their jointly-held real property and to impress
on. I would reach the
determinations when the record supports those determinations. Here, the
above-quoted testi
up financial plans for the former marital residence. Although, at the time of
remote and tangential. I agree with the trial court that Appellant
communicated with wrongful intent through a third party. Thus, there was
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ample support in the record to establish each element of indirect criminal
contempt at docket number No. MD-0000197-2013.
Next, I examined the text message sent on July 13, 2013. It read as
follows:
I also sent an email to your lawyer today about the house
on Fourth Avenue. The bank said if you get paperwork
done I told Cynthia about they will take your name off. So
if you could please talk to her about it, me and the girls can
start moving into it. Thanks. I will tell them. They said
they love you.
N.T., 7/29/2013, at 6.
Again, there is no dispute that Appellant received notice of the orders
involved. Moreover, Appellant readily admits that he volitionally sent the
text message at issue. Appellant contends that the orders were not clear
because he was permitted to communicate via text message for legitimate
issues concerning the children. In conjunction, Appellant claims the trial
have been trying to gain an economic advantage because there was no
communication
Ms. Kochman the outstanding issues regarding their jointly-held real
property and to impress upon her
error. While relocation with the children potentially loomed on the horizon,
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the main thrust of the communication was financially related. Ms. Kochman
divorce. N.T., 7/29/2013, at 5. Appellant was prodding Ms. Kochman to
issues surrounding the house had to be resolved before relocation could be
for indirect criminal contempt based upon text message communication at
docket number No. MD-000212-2013.
Moreover, Appellant knew that, at the time of the subject
communications, Ms. Kochman was represented by a divorce attorney,
Cynthia Kramer, Esquire. N.T., 7/29/2013, at 9. As the above-mentioned
communications show, Appellant had submitted paperwork regarding the
sale of the marital home to Attorney Kramer, but then communicated with
Ms. Kochman about the home, nevertheless. As previously stated, Ms.
alked to your attorney yet. Why
Id. at 14. Appellant knew to
anyway when financial matters surrounding the house were progressing too
slowly for
harassing in nature and, thus, satisfy wrongful intent under the indirect
criminal contempt statute.
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its findings that [Appellant] had violated the PFA order [at issue] on 11
that Appellant communicated with Ms. Kochman for the purpose of abusing,
Majority Memorandum, at 6. The fact that Appellant was convicted of
violating the PFA order at issue 11 times prior to the communications at
issue
most recent communications constituted harassment and, therefore,
Appellant made them with wrongful intent.
Based upon our deferential standard of review and the evidence
presented, I believe there was more than sufficient proof to sustain
judgment of sentence.1
____________________________________________
1
As the learned majority reversed the judgment of sentence, they did not
I would find that the issue has been waived. Appellant questions the
discretionary aspect of his sentence. However, in order to preserve this
issue for appeal, Appellant was required to raise the issue at his sentencing
hearing or in a post-sentence motion. As he did neither, the issue was not
preserved. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
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if they are not raised at the sentencing hearing or in a motion to modify the
sentence imposed
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