Com. v. Jackson, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH R. JACKSON
Appellant No. 176 EDA 2013
Appeal from the Judgment of Sentence January 7, 2013
In the Municipal Court of Philadelphia County
Criminal Division at No(s): MC-51-MD-0000109-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 11, 2014
Appellant, Kenneth R. Jackson, appeals from the judgment of sentence
entered in the Philadelphia County Municipal Court, following his conviction
for the summary offense of criminal contempt at 42 Pa.C.S.A. § 4132.1 We
reverse.
The relevant facts and procedural history of this appeal are as follows.
On January 7, 2013, the Commonwealth moved for a finding of contempt
against Appellant, because he failed to appear on two prior court dates.
That same day, the Municipal Court conducted a hearing on the matter.
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1
A defendant can appeal from a Municipal Court contempt order directly to
this Court as of matter of right. See 42 Pa.C.S.A. § 1123(a.1) (stating
“There shall be a right to appeal to the Superior Court of a contempt citation
issued by a municipal court judge, but the appeal shall be limited to a review
of the record”).
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Immediately following the hearing, the court convicted Appellant of
summary contempt, pursuant to Section 4132(2).2 The court also sentenced
Appellant to five (5) to ten (10) days’ imprisonment, with immediate parole
after five (5) days.
Appellant timely filed a notice of appeal on January 9, 2013. On May
8, 2014, the court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely
filed a Rule 1925(b) statement on May 15, 2014.
Appellant now raises two issues for our review:
WHETHER THE TRIAL COURT ERRED IN FINDING
APPELLANT IN CONTEMPT WHERE THERE WAS
INSUFFICIENT EVIDENCE OF RECORD TO ESTABLISH
THAT APPELLANT WILLFULLY FAILED TO APPEAR IN
COURT.
WHETHER THE TRIAL COURT ERRED IN OPINING THAT
APPELLANT FAILED TO PRESERVE ISSUES RAISED ON
APPEAL.
(Appellant’s Brief at 4).
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2
“Direct contempt is obstruction by conduct, word or deed in the presence
of the court and is a summary offense.” Commonwealth v. Brown, 622
A.2d 946, 948 (Pa.Super. 1993). “A charge of indirect criminal contempt
consists of a claim that a violation of an order or decree of court occurred
outside the presence of the court.” Commonwealth v. Haigh, 874
A.2d 1174, 1176 (Pa.Super. 2005), appeal denied, 585 Pa. 686, 887 A.2d
1240 (2005) (emphasis in original). Here, the court did not announce
whether it had found Appellant in direct or indirect criminal contempt. We
note, however, this Court has held that the failure to appear in court, as
required by previous court proceedings, can be considered an act of direct
criminal contempt. See Commonwealth v. Edwards, 703 A.2d 1058
(Pa.Super. 1997).
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“[W]hen reviewing a contempt conviction, much reliance is given to
the discretion of the trial judge. Accordingly, we are confined to a
determination of whether the facts support the trial court decision.”
Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa.Super. 2002)
(quoting Williams v. Williams, 681 A.2d 181, 183 (Pa.Super. 1996), aff’d,
554 Pa. 465, 721 A.2d 1072 (1998)). “We will reverse a trial court’s
determination only when there has been a plain abuse of discretion.”
Kolansky, supra at 939. “An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.”
Commonwealth v. Griffiths, 15 A.3d 73, 76 (Pa.Super. 2010) (quoting
Commonwealth v. Dent, 837 A.2d 571, 577 (Pa.Super. 2003), appeal
denied, 581 Pa. 671, 863 A.2d 1143 (2004)).
On appeal, Appellant acknowledges the court based its contempt
finding on Section 4132(2), which punishes disobedience or neglect by a
party to the lawful process of the court. To warrant a contempt finding
under Section 4132(2), Appellant contends the evidence must establish his
failure to appear and the court’s issuance of an order mandating his
appearance. Appellant insists the evidence from the contempt hearing did
not establish the issuance of an order commanding his appearance. To the
extent the Commonwealth submitted certain police records memorializing
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Appellant’s failure to appear, Appellant “fails to see how a police report could
possibly serve to establish a lawfully issued process of the court….”
(Appellant’s Brief at 9). Absent more, Appellant insists there is no proof of a
willful failure to appear for the court proceedings at issue. Appellant
concludes the evidence was insufficient to support the contempt conviction. 3
We agree.
When examining a challenge to the sufficiency of the evidence, our
standard of review is:
[W]hether viewing all the evidence admitted at trial 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 and inconclusive 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 evidence actually
received must be considered. Finally, the [trier] of fact
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3
Although the court opined that Appellant failed to preserve his claim
regarding the sufficiency of the evidence, the record belies the court’s
opinion. Specifically, Appellant raised the claim in his Rule 1925(b)
statement. On this record, Appellant preserved his claim for appellate
review. See Commonwealth v. McCurdy, 943 A.2d 299 (Pa.Super. 2008)
(explaining Pa.R.Crim.P. 606(A)(7) expressly allows challenge to sufficiency
of evidence made on appeal).
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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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
A court’s power to impose a summary punishment for contempt is set
forth in Section 4132 as follows:
§ 4132. Attachment and summary punishment for
contempts
The power of the several courts of this Commonwealth
to issue attachments and to impose summary punishments
for contempts of court shall be restricted to the following
cases:
(1) The official misconduct of the officers of
such courts respectively.
(2) Disobedience or neglect by officers,
parties, jurors or witnesses of or to the lawful
process of the court.
(3) The misbehavior of any person in the
presence of the court, thereby obstructing the
administration of justice.
42 Pa.C.S.A. § 4132 (emphasis added).
A finding of contempt pursuant to Section 4132(2) must be supported
by the following elements:
(1) The [court’s] order or decree must be definite,
clear, specific and leave no doubt or uncertainty in the
mind of the person to whom it was addressed of the
conduct prohibited;
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(2) The contemnor must have had notice of the
specific order or decree;
(3) The act constituting the violation must have been
volitional; and
(4) The contemnor must have acted with wrongful
intent.
Further, unless the evidence establishes an intentional
disobedience or an intentional neglect of the lawful process
of the court, no contempt has been proven. Moreover, a
conviction for criminal contempt requires proof beyond a
reasonable doubt.
In re C.W., 960 A.2d 458, 467 (Pa.Super. 2008) (quoting Kolansky, supra
at 940).
Instantly, the contempt hearing consisted of the following exchange
between the parties:
[COMMONWEALTH]: Commonwealth asks for
contempt. Commonwealth marks as C-1 the arrest files
showing FTA 1/5/10 as well as a prior FTA, asks that C-1
be moved into evidence.[4]
[DEFENSE COUNSEL]: Judge, this is a ten-year-old
case and my client tells me that he had gone to traffic
court and received his car back and was understanding the
whole thing (inaudible―due to static). It was not a willful
failure to appear.
I asked that you not hold him in contempt.
THE COURT: All right. I find him in
contempt. He’s in for a five or ten day period. Parole after
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4
Although the Commonwealth submitted the arrest files, the court did not
expressly admit the files into evidence. Moreover, the files are not part of
the certified record on appeal.
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five days. Please advise.
(See N.T. Contempt Hearing at 4-5.) Significantly, the Commonwealth
offered no additional evidence to provide context for Appellant’s failures to
appear. The remainder of the certified record on appeal is also devoid of
any explanation of the circumstances leading to the contempt hearing.
Here, the record contains no evidence of a definite, clear, or specific
order or decree requiring Appellant to appear at the unidentified court
proceedings. See In re C.W., supra. Absent more, the evidence actually
presented failed to demonstrate that Appellant was intentionally disobedient.
Id. Thus, the evidence was insufficient to support a finding of criminal
contempt under Section 4132(2). See Hansley, supra. Accordingly, we
reverse the judgment of sentence.
Judgment of sentence reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2014
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