Com. v. Forrester, V.

J-S26039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VICTOR JOSE FORRESTER
Appellant No. 1123 MDA 2014
Appeal from the Judgment of Sentence June 12, 2014
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-MD-0000609-2014
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 15, 2015
Victor Jose Forrester (“Appellant”) appeals from the judgment of
sentence entered in the Cumberland County Court of Common Pleas
following his bench trial conviction for indirect criminal contempt for violating
1
an order entered pursuant to the Protection From Abuse (“PFA”) Act. We
affirm.
The trial court sets forth the relevant facts of this appeal as follows:
Defendant and Heather Bingaman, [(“Victim”)], are former
intimate partners who have a child together. They are
subject to mutual [PFA] orders entered against them
ordering that both parties, in relevant part, “shall not
abuse, harass, stalk or threaten [the other party] in any
place where they might be found.” Com. Ex. 1, PFA Order.
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23 Pa.C.S. § 6114.
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On June 2, 2014, [Victim] received in the mail the final
custody order from Franklin County regarding [Appellant
and Victim’s] son. Later that evening, at 9:06 p.m., she
received a phone call from a number she did not
recognize. When she answered, there was no response.
One minute later, she called the number back to see if the
caller would answer, but the call went to an automated
voicemail system. Then, at 9:11 p.m., she received a
second call from the same number with a male voice on
the line saying “I'm going to fucking find you tonight and
kill you, bitch.” She recognized the voice as that of
[Appellant].
After receiving the threatening phone call, [Victim]
contacted police and an officer came to her residence to
file a report. At that time, she showed the officer her
phone’s call log detailing the calls she received that
evening.
Early the next morning, at roughly 12:07 a.m., on June
3rd, the Victim heard [Appellant’s] voice outside of her
home and saw him with two other men across the street
from her residence. She again called the police. Officer
Christopher Palamara, of the Shippensburg Borough Police
Department, responded to the call. After receiving a
description of [Appellant’s] location from [Victim], Officer
Palamara found him shortly thereafter and confronted him.
The Officer testified that as soon as he exited his patrol
vehicle, [Appellant] immediately became aggressive and
began yelling and cursing. The Officer also detected the
odor of alcoholic beverages coming from [Appellant]. The
Officer then took [Appellant] into custody and confiscated
two cell phones he had on his person. Later, while holding
[Appellant’s] cell phones, the officer called the phone
number reported by [Victim] as the source of the
threatening call. One of [Appellant’s] phones immediately
lit up and began to vibrate indicating it was the source of
the threatening call.
At the time of the hearing, [Appellant’s] counsel noted that
the only call on his cell phone’s call history for June 2,
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2014 was one missed incoming call at 9:07 p.m.[2]
[Appellant] denied deleting the record of his outgoing call
history, [al]though he acknowledged that it was possible
for him to do so. [Appellant’s] counsel further noted that
at the time of the hearing, [Appellant’s] cell phone had no
record of [his] alleged threatening calls to [Victim].
According to [Victim], the reason for this was that her
phone only retains a call history for three days.
Nonetheless, the presence of those calls on her phone’s
history on the night of the alleged calls was corroborated
to by the testimony of Officer Palamara who had inspected
the phone during his investigation of the PFA violation.
As to [Appellant’s] presence in the vicinity of [Victim’s]
residence that night, he testified that he was merely trying
to demonstrate to his two companions the physical location
of the events leading up to his previous PFA violation.
At the close of testimony, the court made several
credibility findings on the record and found the evidence
demonstrated beyond a reasonable doubt that [Appellant]
had violated the terms of his PFA.
Trial Court Opinion, filed September 17, 2014, at 1-3 (citations to the record
and unnecessary capitalization omitted).
On June 10, 2014, the court conducted a bench trial, convicted
Appellant of indirect criminal contempt for violating the terms of his PFA, and
sentenced Appellant to 3-6 months’ incarceration.3 On July 8, 2014,
Appellant timely filed a notice of appeal. On July 9, 2014, the court ordered
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2
This missed call was from Victim.
3
The court also found Appellant had violated the terms of his parole for a
previous charge and directed him to complete AMEND, a non-violence
program, and abstain from the possession and consumption of alcoholic
beverages and illegal narcotics during the term of his parole.
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Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and he timely complied on July 29, 2014.
Appellant raises the following issue for our review:
DID THE COURT ERR WHEN FINDING THE
COMMONWEALTH PRESENTED BEYOND A REASONABLE
DOUBT EVIDENCE THAT [APPELLANT] VIOLATED AN
ORDER OR DECREE OF COURT OUTSIDE THE PRESENCE
OF THE COURT?
Appellant’s Brief at 7.
Appellant argues the Commonwealth failed to present evidence of his
intent to be at Victim’s residence because there was no evidence that
Appellant knew where Victim lived. Further, he claims that he did not make
the phone calls to Victim and that there was insufficient evidence to
conclude Appellant violated the PFA volitionally and with wrongful intent.
We disagree.
“Whether sufficient evidence exists to support the verdict is a question
of law; thus, [an appellate court’s] standard of review is de novo and [its]
scope of review is plenary.” Commonwealth v. Patterson, 91 A.3d 55, 66
(Pa.2014) cert. denied sub nom. Patterson v. Pennsylvania, 135 S. Ct.
1400 (2015). When examining a challenge to the sufficiency of evidence,
we employ the following standard:
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
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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.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
Indirect criminal contempt is found when a “violation of an Order or
Decree of court occurred outside the presence of the court.”
Commonwealth v. Padilla, 885 A.2d 994, 996 (Pa.Super.2005), appeal
denied, 897 A.2d 454 (Pa.2006). “Where a PFA order is involved, an indirect
criminal contempt charge is designed to seek punishment for violation of the
protective order.” Commonwealth v. Brumbaugh, 932 A.2d 108, 110
(Pa.Super.2007) (quoting Id. at 996).
To establish a claim of indirect criminal contempt, the Commonwealth
must prove the following four elements:
(1) the order [in question] 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
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prohibited; (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.
Commonwealth v. Ashton, 824 A.2d 1198, 1203 (Pa.Super.2003)
(quoting Commonwealth v. Baker, 722 A.2d 718, 721 (Pa.Super.1998)
(en banc), affirmed, 766 A.2d 328 (Pa.2001)).
An act is volitional if it is knowingly made. Brumbaugh, 932 A2d at
110. Wrongful intent can be imputed by the substantial certainty that a
defendant would be in contact with a victim, in violation of a PFA order. Id.
Here, Appellant concedes the PFA order prohibited him from contacting
Victim. The Commonwealth presented testimonial evidence that Appellant
made a threatening phone call to Victim and was then present in her
neighborhood. Victim testified that she heard Appellant’s voice over the
phone and a police officer testified that he looked at Victim’s call log on her
phone shortly after she had received the call and saw Appellant’s number.
After later apprehending Appellant, an officer called the number and
Appellant’s phone rang. Further, an officer testified that he and another
officer found Appellant in Victim’s neighborhood shortly after she reported
his presence there. Although Appellant testified that he did not know where
Victim lived, he did not make the call, and his call log did not show his call to
Victim, he admitted to being in Victim’s neighborhood and being able to
erase numbers from his call log. The trial court was free to believe all, part
or none of the evidence, and it chose to believe Victim and the police
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officers. When viewed in the light most favorable to the Commonwealth,
there is sufficient evidence to find every element of the crime of indirect
criminal attempt beyond a reasonable doubt. See Hansley, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2015
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