Com. v. Viera-Torres, N. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NORBERTO VIERA-TORRES :
:
Appellant : No. 1701 MDA 2023
Appeal from the Judgment of Sentence Entered September 20, 2023
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-MD-0000045-2023
BEFORE: PANELLA, P.J.E., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.E.: FILED: NOVEMBER 8, 2024
Norberto Viera-Torres appeals from the judgment of sentence entered
following his conviction of indirect criminal contempt for violation of a
protection from abuse order (“PFA”). On appeal, Viera-Torres challenges the
sufficiency of the evidence. As we find the Commonwealth did not meet its
burden to prove Viera-Torres had notice of the final PFA order, we are
constrained to vacate the judgment of sentence.
Initially, we note with extreme disapproval the Commonwealth’s failure
to file an appellee’s brief. “An appellee is required to file a brief that at
minimum must contain ‘a summary of argument and the complete argument
for appellee.’” Commonwealth v. Pappas, 845 A.2d 829, 835 (Pa. Super.
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* Former Justice specially assigned to the Superior Court.
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2004) (quoting Pa.R.A.P. 2112). In Pappas, the panel referred to the
Commonwealth’s failure to file a proper appellee’s brief as “unacceptable.” Id.We echo that opinion and remind the Commonwealth of its obligation to file
an appellee’s brief in future appeals.
In this case , a bench trial was held on September 20, 2023. The
Commonwealth presented the testimony of Luciana Feliciano as its sole
witness. Viera-Torres is the father of Feliciano’s son. See N.T., 9/20/23, at 4.
At the Commonwealth’s request, the court took judicial notice of a PFA order
issued in favor of Feliciano against Viera-Torres on November 18, 2022,
effective until November 18, 2025. See id.Feliciano testified that Veira-Torres called her numerous times
throughout the day on November 28, 2022. See id. at 5. As a result, Feliciano
called the police. See id. When the police arrived, they took Feliciano’s
information and used her phone to call the number that had been calling her
that day. See id. Feliciano heard the call because the police put the call on
speakerphone. See id. Feliciano identified the voice on the call as belonging
to Viera-Torres. See id. at 6. Feliciano affirmed that Viera-Torres is the father
of her child, so she is familiar with his voice. See id. The Commonwealth
rested following Feliciano’s testimony. Viera-Torres chose not to testify.
Both attorneys were permitted to make argument to the trial court. The
attorney for Viera-Torres first contended that the Commonwealth had not
“met its burden beyond a reasonable doubt for a few reasons.” Id. at 9. First,
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counsel argued that the actual phone records were not presented at trial to
substantiate the testimony of Feliciano. See id. Then, counsel argued that
Feliciano was not a credible witness. Id. In summary, counsel for Viera-Torres
stated:
Therefore, I would argue that they have not proven that it was
Mr. Viera-Torres who was making the phone calls, as well as just
given the inconsistences and the lack of evidence in several
regards. I don’t believe it’s been proven beyond a reasonable
doubt.
Id. at 10.
Following the arguments by defense counsel and the Commonwealth,
the court found Feliciano’s testimony credible that she clearly and definitively
identified Viera-Torres’s voice on the phone call. See id. at 12. Based on those
findings, the court found Viera-Torres had violated the terms of the PFA order
by making the phone calls. See id. The court further found that Viera-Torres’s
act of dialing Feliciano’s number on repeated occasions with the intent of
having her answer was made with wrongful intent. See id. The court
sentenced Viera-Torres to six months’ probation, along with a mental health
evaluation, a $300 fine, and costs.
On September 25, 2023, Viera-Torres filed a post-sentence motion,
challenging the sufficiency and weight of the evidence. In the post-sentence
motion, Viera-Torres again contended “(1) the evidence was insufficient to
convict Defendant of Indirect Criminal Contempt and/or (2) the verdict was
against the weight of the evidence and Defendant requests a new trial.” Post-
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Sentence Motion, 9/25/2023, ¶ 5. In Section I of the post-sentence motion,
Viera-Torres argued the evidence was insufficient because he was not
identified as the perpetrator and the Commonwealth failed to prove he was
the individual who “committed the volitional acts in this case and that he did
so with wrongful intent.” Id. at ¶¶ 8-13. Viera-Torres also argued there was
no testimony which demonstrated “any phone calls were made on November
28, 2022.” Id. at ¶ 14. Viera-Torres then argued the Commonwealth failed to
present as exhibits the victim’s phone logs, pictures, screenshots, and her
phone, or present the testimony of the police officers who were involved. Id.
at ¶¶ 15-16. Then, in a rambling fashion, Viera-Torres argued the
Commonwealth did not prove its case beyond a reasonable doubt. Id. at ¶¶
17-34. In Section II of the post-sentence motion, Viera-Torres contended the
verdict was against the weight of the evidence. In addition to repeating many
of the arguments already raised in Section I of the motion, Viera-Torres also
contended the Commonwealth failed to present a timeline of the phone calls.
Id. at ¶¶ 53 -58.
The court issued an order and accompanying opinion dated October 30,
2023, denying Viera-Torres’s post-sentence motion. For reasons that are
unclear from the record, the order denying the post-sentence motion was not
docketed until November 30, 2023. After receiving permission to file a notice
of appeal nunc pro tunc, this timely appeal followed.
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In his sole issue on appeal, Viera-Torres argues the evidence was
insufficient to sustain his conviction for indirect criminal contempt. “Evidence
presented at trial is sufficient when, viewed in the light most favorable to the
Commonwealth as verdict winner, the evidence and all reasonable inferences
derived therefrom are sufficient to establish all elements of the offense beyond
a reasonable doubt.” Commonwealth v. Blakeney, 946 A.2d 645, 651 (Pa.
2008) (citation omitted).
To establish indirect criminal contempt for the violation of a PFA order,
the Commonwealth must prove: 1) the PFA order was sufficiently definite,
clear and specific to the contemnor so as to leave no doubt of the conduct
prohibited; 2) the contemnor had notice of the order; 3) the act constituting
the violation was volitional; and 4) the contemnor acted with wrongful intent.
See Commonwealth v. Lambert, 147 A.3d 1221, 1226 (Pa. Super. 2016).
When reviewing a contempt conviction, much reliance is given to
the discretion of the trial judge. Accordingly, [the appellate court
is] confined to a determination of whether the facts support the
trial court[’]s decision. We will reverse a trial court’s determination
only when there has been a plain abuse of discretion.
Id. (citations omitted).
On appeal, Viera-Torres solely argues the Commonwealth failed to
establish that he had notice of the final PFA order. He does not challenge any
of the other elements.
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At Viera-Torres’ trial, the Commonwealth did not introduce the PFA order
as an exhibit. However, the trial court took judicial notice of the final PFA order
at the request of the Commonwealth.
We note Viera-Torres has waived any challenge to the court’s taking
judicial notice of the PFA order. See Commonwealth v. Gentles, 539 EDA
2021, at *4-6 (Pa. Super., filed October 7, 2021) (unpublished
memorandum). At the hearing, Viera-Torres did not object to the admission
of the PFA order by judicial notice. On the contrary, instead of challenging the
court’s decision in this regard, Viera-Torres consented to the judicial notice.
Moreover, Viera-Torres made no mention of the court’s taking judicial notice
of the PFA order in his Rule 1925(b) statement, nor in his appellate brief.
Accordingly, any challenge to the admission of the PFA order is waived.
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”).
Moreover, the Commonwealth established the existence of the PFA order
though the testimony presented at trial. The Commonwealth specifically
indicated on the record, without objection, that the PFA order prevented Viera-
Torres “from having any contact whatsoever.” See N.T., 9/20/23, at 4.
Further, Viera-Torres elected not to testify on his own behalf. Instead, defense
counsel made a brief argument in which he argued the Commonwealth had
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not met its burden of proof beyond a reasonable doubt because (1) the
Commonwealth did not enter phone records into evidence to substantiate that
Felicano received numerous calls that day, (2) Feliciano’s credibility is
questionable because she stated she did not remember what was said during
the phone call made by the police, and (3) the Commonwealth did not prove
Viera-Torres was the one making the calls because there was no response
during the one phone call that Feliciano did pick up. See id. at 9-10.
Based on these circumstances, we conclude there was no real issue over the
existence of the PFA order. See Commonwealth v. Swarner, 2019 WL 7174582,
at *2 (Pa. Super. filed Dec. 24, 2019) (unpublished memorandum)1 (finding the
court did not abuse its discretion by taking judicial notice of a PFA order where its
existence and validity were established through testimony of witnesses).
However, while the Commonwealth’s evidence was sufficient to
establish the existence of the PFA order, Viera-Torres is not challenging the
order’s existence. He is specifically arguing that the Commonwealth failed to
offer testimony or evidence that he had notice of the order.
After a careful review of the record, we are unable to find any evidence
provided by the Commonwealth to establish the element of notice. While the
court took judicial notice of the PFA Order itself, there was no testimony or
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1 “Non-precedential decisions filed after May 1, 2019, may be cited for their
persuasive value, pursuant to Pa.R.A.P. 126(b).” 210 Pa.Code § 65.37.
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exhibit offered which established that service was made on Viera-Torres. The
Sheriff Office’s return of service is not in the certified record. The PFA order,
which is in the docket in the certified record, states that Viera-Torres was not
present when the final PFA Order was issued on November 18, 2022.2
As we cannot say the Commonwealth met its burden to prove notice of
the PFA order at issue, we are constrained to find the trial court’s finding of
indirect criminal contempt was improper and cannot be sustained.
Accordingly, we vacate the judgment of sentence.
Judgment of sentence vacated.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/08/2024
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2 Evidence that the contemnor had notice of the order could have been easily
accomplished at the hearing held on September 20, 2023. Police Officer Ross
Casteel of the York City Police Department included the following in the
Affidavit of Probable Cause attached to the Criminal Complaint filed in this
case: “I contacted the PFA office who reported [Viera-Torres] was served with
the temp PFA which since it was amended to a full PFA still counted as him
being served under the full pfa.” The Criminal Complaint and Affidavit are
included in the certified record. The Commonwealth failed to call either Officer
Casteel or a representative from the PFA office as a witness, or offer the return
of service as an exhibit, although any of these would have been an obvious
means of proving service.
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