Com. v. Verga, A. ( 2021 )

J-S14028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY VERGA :
:
Appellant : No. 1544 MDA 2020
Appeal from the Judgment of Sentence Entered November 12, 2020
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2018-06807
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 09, 2021
Appellant, Anthony Verga, appeals from the Judgment of Sentence
entered after the trial court found Appellant in Indirect Criminal Contempt
(“ICC”).1 With this appeal, Appellant’s counsel has filed an Anders2 Brief and
Motion to Withdraw. After careful review, we deny counsel’s Motion to
Withdraw and remand for the trial court to file a responsive Rule 1925(a)
Opinion and for Appellant to file an Advocate’s Brief.
On January 3, 2019, the trial court issued a Final Protection from Abuse
Order (“PFA”) against Appellant. The Order barred Appellant from, inter alia,
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1 23 Pa.C.S. § 6114(a).
2 Anders v. California, 386 U.S. 738 (1967).
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harassing the victim, CMV, for three years.3 Appellant was not present when
the court issued the PFA.
On May 10, 2020, CMV discovered a public post on Appellant’s Facebook
page, which listed CMV’s name and cell phone number and suggested that
people contact CMV to solicit sex. This post forms the basis of the instant
contempt action.
The court held a bench trial4 on Appellant’s ICC charge on November
12, 2020. CMV was the only witness to testify. She testified regarding the
Facebook post, and the Commonwealth entered the post into evidence. She
did not testify about the contents of the PFA, and the Commonwealth did not
enter the PFA into evidence. The court nonetheless found Appellant guilty of
ICC of the PFA.
After the court found Appellant guilty, but before sentencing, Appellant
admitted that he made the subject Facebook post. He stated, however, that
he made the post in August 2018, before he was subject to the PFA. The trial
court went on to sentence Appellant to six months of probation.
Appellant timely filed a Notice of Appeal. Counsel thereafter filed a
Statement of Intent to File an Anders Brief. See Pa.R.A.P. 1925(c)(4).
Accordingly, the trial court did not file a substantive Rule 1925(a) Opinion.
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3 The PFA is included in the certified record but, as discussed infra, the
Commonwealth did not introduce it into the evidentiary record at Appellant’s
ICC trial.
4 The trial court refers to Appellant’s bench trial as a “hearing.”
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As a preliminary matter, we address counsel’s request to withdraw.
“When presented with an Anders Brief, this Court may not review the merits
of the underlying issues without first passing on the request to withdraw.”
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citation
omitted). For counsel to withdraw from an appeal pursuant to Anders, our
Supreme Court has determined that counsel must meet the following
requirements:
(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).
Counsel has complied with the mandated procedure for withdrawing as
counsel. Additionally, counsel confirms that he sent Appellant a copy of the
Anders Brief and Petition to Withdraw, as well as a letter explaining to
Appellant that he has the right to retain new counsel, proceed pro se, or to
raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748,
751 (Pa. Super. 2005) (describing notice requirements).
Because counsel has satisfied the above requirements, we will first
address the substantive issue raised in the Anders Brief. Subsequently, we
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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).
In his sole issue on appeal, Appellant challenges the sufficiency of the
evidence supporting his ICC conviction. Anders Br. at 5-7. We review a
contempt conviction for an abuse of discretion. Commonwealth v. Felder,
176 A.3d 331, 333 (Pa. Super. 2017). We consider the evidence admitted at
trial in a light most favorable to the Commonwealth since it was the verdict
winner. Commonwealth v. Taylor, 137 A.3d 611, 614 (Pa. Super. 2016) (en
banc). The evidence is legally sufficient only if it proves each element of the
offense charged beyond a reasonable doubt. Id.An ICC charge consists of a claim that a violation of an Order of court
occurred outside the court’s presence. Commonwealth v. Brumbaugh, 932
A.2d 108, 110 (Pa. Super. 2007). To establish indirect criminal contempt, the
Commonwealth must prove that:
(1) the [PFA] 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.
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Id. at 110. “As with those accused of any crime, one charged with indirect
criminal contempt is to be provided the safeguards which statute and criminal
procedures afford.” Id. (citation and quotation marks omitted).
Appellant challenges the sufficiency of the Commonwealth’s evidence to
satisfy the third and fourth elements of ICC. Anders Br. at 5-7. He emphasizes
that he told the court, after the court closed the evidentiary record at his trial,
that he made the Facebook post in August 2018. Id. Therefore, because he
made the post before the PFA existed, Appellant cannot be found to have
acted with volition and wrongful intent. Id. Appellant acknowledges that this
admission was not record evidence in his contempt trial. Id. at 8.
Appellant asks this Court to consider evidence not admitted at trial. We
cannot and will not do so. It is axiomatic that, “when determining whether the
evidence is sufficient to support a conviction, we look to the evidence admitted
at trial. We do not look to evidence ‘of record’ at other stages of the
proceedings, such as sentencing.” In re L.J., 79 A.3d 1073, 1085 (Pa. 2013)
(citation omitted). See also Commonwealth v. Allshouse, 969 A.2d 1236,
1241 (Pa. Super. 2009) (“Reliance on documents not admitted into evidence
is error.”).
Since Appellant’s after-hearing statement does not constitute record
evidence, we cannot consider it for purposes of sufficiency review. Thus, the
issue raised in the Anders Brief warrants no relief.
Having determined that the argument raised in the Anders Brief is
frivolous, it remains for this Court to conduct a simple review of the record to
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determine if any arguably meritorious issues exist. Dempster, supra. After
review, it is not clear to us that the Commonwealth’s evidence was sufficient
to prove every element of ICC. Of particular concern, the Commonwealth did
not introduce the PFA into evidence at Appellant’s trial. The absence of the
PFA in the trial record raises concerns about the sufficiency of the
Commonwealth’s evidence to prove that the PFA was sufficiently definite,
clear, and specific, and that Appellant acted with wrongful intent.
Since the trial court did not file a Rule 1925(a) Opinion explaining the
evidence it relied on to find that the Commonwealth satisfied every element
of ICC, and considering our concerns about the absence of the PFA in the trial
record, we order as follows: the trial court shall issue a supplemental Opinion
pursuant to Pa.R.A.P. 1925(a) within 30 days of the date of this Opinion,
identifying the record evidence it relied upon to find that the Commonwealth
satisfied each element of ICC. Appellant shall have 30 days from the date that
the court files its Rule 1925(a) Opinion to file a responsive Advocate’s Brief.
The Commonwealth may, if desired, file an Appellee’s Brief within 30 days of
Appellant’s filing of his Advocate’s Brief.
Motion to Withdraw denied. Case remanded with instructions. Panel
jurisdiction retained.
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