Rivera, M. v. Gutierrez, L.

J-S36001-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MONICA RIVERA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUIS CARLOS GUTIERREZ :
:
Appellant : No. 1085 EDA 2021
Appeal from the Judgment of Sentence Entered April 29, 2021
In the Court of Common Pleas of Delaware County Civil Division at
No(s): 2018-80346
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 24, 2022
Luis Carlos Gutierrez (“Gutierrez”) appeals from the judgment of
sentence, entered in the Court of Common Pleas of Delaware County, following
his conviction for indirect criminal contempt1 after he violated a Protection
from Abuse (PFA) order. We affirm.
On September 17, 2017, Monica Rivera (“Rivera”) obtained a final PFA
Order (2017 PFA Order) against Gutierrez in the Lehigh County trial court for
the benefit of herself and two minor children, one of whom is also Gutierrez’s
daughter. The 2017 PFA Order was effective from September 12, 2017
through September 11, 2020. In relevant part, the 2017 PFA Order states
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 23 Pa.C.S. § 6114(a) (Contempt for violation of order or agreement).
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that Gutierrez, “shall not abuse, harass, stalk or threaten” protected
individuals. On March 12, 2018, the 2017 PFA Order was registered with the
Delaware County Court of Common Pleas. On August 23, 2018, the 2017 PFA
Order was amended by the Honorable Linda A. Cartisano, adding that “all text
messages are limited to emergency pick up and drop off times only.” 2 Trial
Court Order, 8/23/2018.
On January 18, 2020, Rivera reported to Haverford Police that there was
a PFA order in place against Gutierrez. Affidavit of Probable Cause, 1/18/20,
at 1. Rivera reported that Gutierrez called her from blocked phone numbers
and left threatening voicemails. Gutierrez also sent text messages to Rivera
that Rivera perceived as threatening. Affidavit of Probable Cause, 1/18/20.
That same day, Haverford Police charged Gutierrez with indirect criminal
contempt for violating the PFA Order. 23 Pa.C.S. § 6114(a); Affidavit of
Probable Cause, 1/18/20.
On April 29, 2021, the trial court conducted a trial, after which it
convicted Gutierrez of indirect criminal contempt and sentenced him to 6
months of probation. On May 27, 2021, Gutierrez filed a timely notice of
appeal. Gutierrez raises the following issue on appeal:
Whether the evidence is insufficient to sustain the conviction for
indirect criminal contempt since the prosecution at trial failed to
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2 The 2017 PFA Order and 2018 Amendment together will be referred to as
“PFA Order.”
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prove beyond a reasonable doubt that the terms of the protection
from abuse order were sufficiently definite, clear, and specific,
especially where the order at issue was never introduced into
evidence?
Appellant’s Brief, at 5.
Our standard and scope of review are well settled:
The standard applied in reviewing the sufficiency of the evidence
is whether, viewing all the evidence in the light most favorable to
the verdict winner, there is sufficient evidence to enable the fact-
finder to find every element of the crime beyond a reasonable
doubt. In applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
Any doubts regarding a defendant’s guilt may be resolved by the
fact-finder unless the evidence is so weak[,] that as a matter of
law[,] no probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of []
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all the
evidence actually received must be considered. Finally, the trier[-
]of[-]fact, while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part[,] or
none of the evidence.
Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004).
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
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(4) the contemnor must have acted with wrongful intent. Commonwealth
v. Ashton, 824 A.2d 1198, 1203 (Pa. Super. 2003); 23 Pa.C.S. § 6114.
Gutierrez challenges only the first element, claiming the PFA Order was
not sufficiently definite, clear, and specific because (1) the PFA Order was not
introduced into evidence, and (2) the PFA Order was not read or explained to
Gutierrez. Appellant’s Brief, at 13-14.
First, Gutierrez argues the PFA Order was not introduced into evidence
at trial and thus cannot be definite, clear and specific as to leave no doubt of
the conduct prohibited. Appellant’s Brief, at 4, citing Interest of D.S., 622
A.2d 854, 959 (Pa. Super. 1993). The Commonwealth counters that the PFA
Order was made part of the record because Gutierrez stipulated to its terms
and to receiving notice. Appellee’s Brief, at 11, citing N.T. Trial 4/29/21, at
3-4.
DISTRICT ATTORNEY: I believe that there would be a stipulation
that there was notice and an active PFA at the end of [] December
of 2019 when this was alleged to have accrued.
DEFENSE COUNSEL: That’s correct.
N.T. Trial, 4/29/21, at 3. The record reflects that Gutierrez stipulated to the
notice, terms, and effective date of the PFA Order. Having done so, Gutierrez
cannot now claim that the order was not sufficiently definite, clear, and specific
simply because it was not introduced into evidence. See Tyler v. King, 496
A.2d 16, 21 (Pa. Super. 1985) (“The court will hold a party bound to his
stipulation: concessions made in stipulations are judicial admissions, and
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accordingly may not later in the proceeding be contradicted by the party who
made them.”).
Second, Gutierrez argues there is no evidence showing the conditions
of the PFA Order were read or explained to him. Indeed, we agree with the
trial court that a party to a PFA order is presumed to have read the contents
of that order and therefore is held responsible for complying with it.
Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa. Super. 2012). Here, where
Gutierrez stipulated to the PFA Order, his argument that the terms of the order
should have been read to him is meritless.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, the evidence is sufficient to support Gutierrez’s conviction
of indirect criminal contempt. Pappas, supra. Accordingly, we affirm
Gutierrez’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2022
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