Com. v. Harris, D

J-S78001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DORIAN HARRIS,
Appellant No. 903 WDA 2015
Appeal from the Judgment of Sentence Entered May 20, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): FD-14-02045
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 7, 2016
Appellant, Dorian Harris, appeals from the judgment of sentence of
two concurrent terms of 6 months’ imprisonment, imposed after he was
convicted of two counts of indirect criminal contempt (ICC), 23 Pa.C.S. §
6114. Harris challenges the sufficiency of the evidence to sustain his ICC
convictions. After careful review, we affirm in part and reverse in part.
Harris was charged with two counts of ICC stemming from separate
incidents where he encountered Markia Jones and purportedly violated a
protection from abuse (PFA) order that Jones had obtained against him.
Following an ICC hearing on May 20, 2015, the trial court found Harris guilty
of both charges. That same day, the court sentenced Harris to 6 months’
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*
Former Justice specially assigned to the Superior Court.
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incarceration for each ICC offense, imposed to run concurrently. Harris filed
a timely notice of appeal, and also timely complied with the court’s order to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. The court filed a responsive opinion on March 7, 2016.
Herein, Harris presents one issue for our review: “Whether the trial
court committed reversible error as the evidence was insufficient to sustain
[Harris’s] conviction for both counts of indirect criminal contempt.” Harris’s
Brief at 5.
Our standard of review in assessing whether sufficient
evidence was presented to sustain appellant's conviction is well-
settled.
The standard we apply in reviewing the sufficiency of the
evidence is whether 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 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.
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Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
2001) (citations and quotations omitted).
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. Padilla, 885 A.2d
994 (Pa. Super. 2005). “Where a PFA order is involved, an
indirect criminal contempt charge is designed to seek
punishment for violation of the protective order.” Id. at 996. 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. at 996–97 (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. Commonwealth v. Ashton, 824 A.2d 1198, 1202 (Pa.
Super. 2003).
Commonwealth v. Brumbaugh, 932 A.2d 108, 109–10 (Pa. Super. 2007).
In this case, Markia Jones obtained a final PFA order against Harris on
November 18, 2014. Harris does not dispute that he had notice of the PFA
order. However, he challenges each of his two ICC convictions for violations
of that order on slightly different grounds. We will address his arguments
pertaining to each incident in turn.
First, Harris contends that the evidence was insufficient to support his
ICC conviction for an encounter he had with Jones on January 19, 2015. At
the ICC hearing, Jones testified that on that date, she was employed by “XO
Café and Lounge” and, as part of that employment, she would “do bottle
service at certain shows that go on throughout Pittsburgh.” N.T. Hearing,
5/20/15, at 7. On January 19, 2015, Jones was working an event at a night
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club called the Penthouse. Id. at 8. She testified that she was walking
through the club with drinks in her hand when Harris walked past her. Id.
Jones stated that Harris “looked at [her] and said something and continued
moving.” Id. Jones said that Harris gave her “the look of death” and she
“felt threatened.” Id. at 19. Jones called police shortly after her encounter
with Harris, and he was subsequently arrested at the club. Id. at 9.
On appeal, Harris claims that the evidence failed to demonstrate that
Jones worked at the Penthouse and, thus, the Commonwealth failed to prove
he violated the provision of the final PFA order directing that he not go to
Jones’s place of employment. See Final PFA Order, 11/18/14, at 2 ¶3
(unnecessary capitalization and emphasis omitted). Harris also argues that
he did not “abuse, stalk, harass, threaten or attempt to use physical force”
against Jones at the club and, consequently, he did not violate that provision
of the final PFA order. See id. at 1 ¶1 (unnecessary capitalization and
emphasis omitted). Lastly, Harris contends that he did not contact Jones at
the Penthouse club in violation of the PFA order’s no-contact provision, which
states: “Defendant shall not contact Plaintiff, protected under this order,
either directly or indirectly, by telephone or by any other means, including
through third persons.” Id. at 2 ¶4.
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We disagree with Harris that he did not ‘contact’ Jones at the club.1
According to Jones’s testimony, Harris walked past her in the Penthouse
nightclub, made threatening eye contact with her, and said something. The
court was permitted to infer from Jones’s testimony that Harris’s remark was
directed at Jones and that, therefore, Harris ‘contacted’ Jones in violation of
the PFA order’s ‘no-contact’ provision. Moreover, contrary to Harris’s
argument on appeal, Jones’s testimony was sufficient to establish that Harris
contacted Jones intentionally, and that he did so with the purpose of making
her feel scared or threatened. Thus, we affirm Harris’s ICC conviction
pertaining to the January 19, 2015 encounter with Jones.
However, we are compelled to reverse Harris’s ICC conviction for an
encounter with Jones that occurred on March 26, 2015. Jones testified that
on that date, she and several friends went to the Savoy Restaurant in
Pittsburgh. N.T. Hearing at 10. Jones saw Harris walk in, but he abruptly
turned around and left. Id. A short time later, the owner of the restaurant
approached Jones and “told [her] that [Harris] was outside in the parking
lot….” Id. The owner asked Jones if she was “okay” with Harris’s being
there. Id. Jones testified that she replied, “Yeah, but that’s not what the
court order says. The court order says we can’t be around each other. But I
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1
Thus, we need not assess whether the evidence proved that the Penthouse
was Jones’ place of employment, or whether Harris’ conduct was abusive,
harassing, or amounted to an act of stalking.
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told [the owner], ‘This is your club,’ you know. There’s nothing I can do
about it. And he turned around and walked away.” Id. Shortly thereafter,
Harris reentered Savoy and “sat adjacent to the area that [Jones and her
friends] were sitting in….” Id. Jones testified that Harris sat about ten feet
away from her, and remained there for “a half hour” before Jones left Savoy.
Id. at 13. While Jones testified that Harris looked at her, she stated that he
did not have any contact with her. Id. at 29, 30. Jones also confirmed that
she did not work at Savoy. Id. at 11-12.
The Commonwealth also called Juandesha Purdie to the stand at the
ICC hearing. Purdie testified that she is a friend of Jones and was with Jones
at the Savoy on March 26, 2015. Id. at 33, 35. Purdie testified that she saw
Harris sit at a table near where she and Jones were sitting, but Harris was
not directly facing them and he at no point said anything to Jones. Id. at
43. Purdie did not see Harris look at Jones or “give [] Jones any type of
gestures with his hands or with his face….” Id. Harris also did not approach
Purdie and Jones’s table. Id. at 43-44.
Harris then testified at the ICC hearing. He stated that when he
entered Savoy and saw Jones, he immediately “went downstairs” and told
the owner that he had to leave because he had “a problem” with Jones that
involved a PFA. Id. at 51. Harris testified that he did not tell the owner to
talk to Harris, but the owner stated that he was going to ask Jones to leave.
Id. The owner then went upstairs to where Jones was sitting, and when he
returned, he told Harris that “he talked to [Jones],” and she “said it wouldn’t
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be [a] problem.” Id. Harris testified that he then followed the owner
upstairs to the owner’s table, which was close to where Jones was sitting.
Id. at 51-52. Harris testified that he did not look at Jones or talk to her. Id.
at 52. He further stated that he understood the PFA order as prohibiting him
from contacting Jones, but that he did not think that simply being in the
same room with her amounted to ‘contact.’ Id. at 55-56.
On appeal, Harris argues that the Commonwealth’s evidence was
insufficient to demonstrate that he violated the PFA order by coincidentally
encountering Jones at the Savoy Restaurant. Preliminarily, Harris argues,
and we agree, that the evidence proved that Jones did not work at Savoy
and, therefore, he cannot be found to have violated the provision of the PFA
order precluding him from going to Jones’s place of employment. See Final
PFA Order, 11/18/14, at 2 ¶3. He also contends that nothing in his conduct
could be viewed as abusive, threatening, or an attempt to stalk Jones.
Again, we agree.
Additionally, Harris avers that “[t]here is no evidence of record that
[he] had any contact or attempted contact with Jones.” Harris’s Brief at 13.
Harris also stresses that “presence and contact are not synonymous.” Id. at
15. Harris further contends:
[I]t is axiomatic they are not synonymous as the PFA order
delineates what type of conduct [Harris] is prohibited from
performing in Jones’s presence via paragraph 1 [(relating to
Harris not abusing, stalking, harassing, or using physical force
on Jones)] and what location [Harris] is prohibited from
traversing with respect to Jones via [p]aragraphs 2 and 3
[(pertaining to Harris’s not being permitted to go to Jones’s
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home or place of employment, respectively)]. If [Harris] was
not allowed to be in the presence of … Jones ever, the PFA order
should simply state [Harris] is prohibited from being in the
presence of Jones at any location [where] she may be.
Consequently, any suggestion that presence and contact are
synonymous is absurd.
Id. at 15-16.
Harris’s argument is compelling. No provision of the PFA order,
including the ‘no-contact’ provision, precludes Harris from simply being
present in the same public place where Jones is located. The
Commonwealth attempts to read such a prohibition into the final PFA order
based on the following testimony by Jones:
[Jones:] [A]t our first court hearing the judge [said] if [Harris]
sees me, if he comes anywhere and I’m already there, he’s to
turn around and leave. He’s not to stay. He’s not to talk to
anybody. He’s supposed to leave.
N.T. Hearing at 11. However, the record before us does not contain a
transcript from the hearing alluded to by Jones. It also does not contain any
court order stating that Harris is not permitted to be in the same location as
Jones, and Jones’s testimony alone is insufficient to demonstrate that the
court ordered Harris not to do so.
Instead, the PFA order directs that Harris may not be at Jones’s home
or place of employment, and orders him not to contact Jones, either directly
or indirectly. Jones confirmed at the hearing that Harris did not contact her
at the Savoy Restaurant. Thus, no evidence demonstrated that Harris
directly contacted Jones on March 26, 2015. Additionally, we can find no
legal authority to support that Harris ‘indirectly contacted’ Jones by looking
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at Jones while sitting 10 feet away from her in a public place. We note that
Jones did not say that Harris continuously stared at her, or that he even
frequently looked in her direction, during the half-hour that they were both
in the Savoy.
In any event, even if Harris’s conduct did constitute a de minimis
violation of the ‘no-contact’ provision of the PFA order, we would conclude
that the evidence failed to establish that Harris acted with ‘wrongful intent.’
This Court has emphasized that,
[i]t is imperative that trial judges use common sense and
consider the context and surrounding factors in making their
determinations of whether a violation of a court order is truly
intentional before imposing sanctions of criminal contempt. As
we have stated:
[A] determination of criminal contempt is a criminal
conviction conferring on the contemnor all the negative
characteristics of being a convicted criminal. The right to
be free of the stigma of an unfounded criminal conviction
is the hallmark of American jurisprudence.
Commonwealth v. Haigh, 874 A.2d 1174, 1177–78 (Pa. Super. 2005)
(emphasis in original) (quoting Commonwealth v. Baker, 722 A.2d 718,
722 (Pa. Super. 1998) (en banc)).
Here, considering the context of Harris’s encounter with Jones at the
Savoy Restaurant, we cannot conclude that the evidence proved that Harris
intentionally violated the PFA order. There was no evidence indicating that
Harris knew Jones would be at Savoy. When Harris arrived at the restaurant
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and saw Jones, he immediately left, and returned only after Jones told the
owner of the restaurant that she was ‘okay’ with Harris’s being there.2
Harris testified that he was invited to sit at the owner’s table, which
happened to be close to where Jones was sitting. Jones’s friend, Juandesha
Purdie, confirmed that she did not see Harris talk to Jones, approach their
table, or gesture to Jones in any way. Jones did not testify that Harris
exhibited any threatening conduct toward her, and Jones voluntarily
remained at the table near to him for approximately 30 minutes before
leaving the restaurant. Finally, Harris testified that he did not believe that
sitting in the same room as Jones would be a violation of the PFA order, as
long as he did not communicate with her. See N.T. Hearing at 55-56.
Based on these facts, we would conclude that the evidence failed to prove
that Harris intentionally violated the ‘no-contact’ provision of the PFA order.
In sum, the evidence was sufficient to prove that Harris violated the
PFA order on January 19, 2015, when he had contact with Harris at the
Penthouse nightclub, and did so with wrongful intent. Thus, we affirm his
ICC conviction based on that violation. However, the evidence failed to
demonstrate that Harris contacted Jones at the Savoy Restaurant in March
of 2015, or that he did so with wrongful intent. Consequently, Harris’s ICC
conviction for the March 26, 2015 incident is reversed, and his sentence of 6
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2
We point out that there was no evidence that Harris told the owner of the
club to approach Jones and talk to her.
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months’ incarceration for that offense is vacated. Because the court
imposed concurrent terms of 6 months’ incarceration for both of Harris’s ICC
convictions, our disposition does not upset the court’s overall sentencing
scheme, and we need not remand for resentencing.
Judgment of sentence affirmed in part, reversed in part. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2016
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