Com. v. Disla-Otero, W.

J-S26015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM DISLA-OTERO :
:
Appellant : No. 302 MDA 2022
Appeal from the Judgment of Sentence Entered January 13, 2022,
in the Court of Common Pleas of Luzerne County,
Civil Division at No(s): 2021-12690.
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED: OCTOBER 28, 2022
Appellant William Disla-Otero appeals from his judgment of sentence of
six months’ probation following his conviction of indirect criminal contempt for
violating a Temporary Protection From Abuse Order, pursuant to the
Protection of Abuse (PFA) Act. See 23 Pa.C.S.A. §§ 6102-6122. After
review, we conclude the trial court did not abuse its discretion when it
determined that Appellant acted with the requisite wrongful intent. We affirm.
Relevant history begins on November 10, 2021, when the Lackawanna
County Court of Common Pleas1 granted the petition of Coryvette Olivio to
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* Former Justice specially assigned to the Superior Court.
1The Temporary PFA Order was issued in Lackawanna County, the violation
occurred in Luzerne County. Thus, the contempt hearing was held before the
Luzerne County Court of Common Pleas.
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obtain a Temporary PFA Order, pursuant to the Protection From Abuse (PFA)
Act, against Appellant. According to the Temporary PFA Order, the Appellant
and Olivio share a child together. The Temporary PFA Order directed that
Appellant shall not abuse, harass, stalk, threaten or attempt to threaten to
use physical force against Olivio. The Order further directed that Appellant
shall not contact Olivio via third persons.2
The precise circumstances surrounding Appellant’s violation of the
Temporary PFA Order are critical to our decision. But for now, this overture
suffices: On the morning of December 17, 2021, Appellant went to get a
haircut. The barber told Appellant that there was a wait, so the Appellant
went to a nearby bakery to get something to eat. Olivio happened to be in
the bakery. According to Appellant, he did not immediately recognize Olivio
because her back was to the door. But Appellant did notice Olivio’s boyfriend,
who, according to Appellant, immediately started staring at Appellant and
initiated a verbal altercation. See Appellant’s Brief at 8. The verbal
altercation got everyone kicked out of the bakery. At Olivio’s direction, the
bakery called 911. Appellant was arrested for violating the Temporary PFA
Order. The trial court subsequently convicted Appellant and sentenced him to
a six-month period of probation. The court further ordered Appellant to
complete an evaluation to determine whether he would benefit from an anger
management course.
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2 The final PFA hearing was scheduled for May 2022.
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Appellant timely filed this appeal. He presents the following issues for
our review:
1. [Whether the] evidence presented was equally connected
with contact between [Appellant] and the purported
victim not being intended, but coincidental[?]
2. [Whether the] evidence presented was equally connected
with the purported victim intentionally inducing and
provoking any adverse contact[?]
Appellant’s Brief at 1.
In his Brief, Appellant collapses these issues to make one argument. He
asks whether the trial court erred when it determined that Appellant acted
with the requisite “wrongful intent.” See generally id. at 4, 5-10.
With the contours of Appellant’s appeal understood, we answer this
question by first observing our well-settled standard of review:
Our standard of review in assessing whether sufficient
evidence was presented to sustain [an a]ppellant'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 [this] 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
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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. Boyer, --A.3d --, 2022 WL 4100428, at *8 (Pa. Super.
September 8, 2022) (quoting Commonwealth v. Brumbaugh, 932 A.2d
108, 109-10 (Pa. Super. 2007)) (further citations omitted).
The PFA Act permits a court to hold an individual subject to a protection
order in contempt of such order and to punish the defendant in accordance
with the law. See 23 Pa.C.S.A. § 6114(a). To establish indirect criminal
contempt, the Commonwealth must prove four elements:
(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.
Boyer, --A.3d --, at *8 (Pa. Super. September 8, 2022) (citing
Commonwealth v. Walsh, 36 A.3d 613, 618-19 (Pa. Super. 2012)) (further
citations omitted) (emphasis added).
Appellant concedes that the Commonwealth established the first three
elements. He limits his appeal to fourth element, which concerns the scienter
requirement.
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This Court has held that “[w]rongful intent will be found where the
contemnor knows or reasonably should be aware that his conduct is wrongful.”
Boyer, ---A.3d---, at *9 (citations omitted). Wrongful intent can also be
inferred if the Appellant’s act had a substantial certainty of being in violation
of the order. Id. (citing Brumbaugh, 932 A.2d at 110). “It 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.”
Commonwealth v. Haigh, 874 A.2d 1174, 1177 (Pa. Super. 2005), appeal
denied, 887 A.2d 1240 (Pa. 2005) (emphasis in original).
To be sure, not all contact with a protected party necessarily rises to the
level of indirect criminal contempt. In Haigh, for instance, the criminal
defendant, while shackled in a courtroom, leaned over to his wife (the
protected party) to ask her for any updates on her cancer prognosis. Haigh,
874 A.2d at 1176. We vacated the sentence, because “the record [did] not
support the determination that Appellant intended to violate the final PFA
order and because the infraction was both de minimis and non-threatening[;]”
the defendant thought he could speak to the wife, because they were in a
courtroom, and the wife testified she did not feel threatened. Id. at 1178(emphasis original).
In this case, Appellant argues that there was insufficient evidence to
establish his wrongful intent. He argues that he went into the bakery for food,
and then left “almost immediately” after “being accosted by Olivio and her
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boyfriend.” See Appellant’s Brief at 8. Appellant argues further that Olivio
and her boyfriend followed him outside, despite the fact that Olivio was also
subject to a PFA order – one that Appellant had obtained against her. Lastly,
Appellant takes issue with the trial court’s admonishment that all Appellant
“had to do was turn around and leave;” Appellant maintains that’s exactly
what he tried to do. Id. at 9.
Critically, Appellant casts these facts in a light most favorable to him.
But that is not the standard by which we review his conviction on appeal. We
review the facts in a light most favorable to Olivio, since she prevailed before
the trial court. We do not re-weigh the evidence or substitute our judgment
for that of the trial court. And we reiterate that the trial court, when weighing
the evidence and determining the facts, is free to believe all, part, or none of
the evidence. Boyer, supra. With these principles in mind, we review the
court’s findings.
Olivio testified that she was in the bakery for ten minutes
when Appellant entered the bakery with two other men
[(friends of Appellant)]. Olivio testified that when the
Appellant was inside the bakery, he began looking at her,
approached her, stood close to her face and was looking at
her. Olivio proceeded to tell the Appellant that he was not
permitted to be around her. Olivio claimed that Appellant
responded “ain’t nobody around you.” Olivio testified that
Appellant was “calling her names” and remained standing in
the bakery. Olivio then testified that Appellant’s friends
came up close to her face and told her to “watch her mouth”
among other things. Olivio then testified that subsequent
to the Appellant and his friends refusing to leave the bakery,
Olivio told the bakery staff to call 911, a request to which
the staff complied.
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Olivio testified that she recorded the incident as a video on
her cell phone. [The trial court] and the attorneys involved
viewed the recorded video in the courtroom during the
hearing. Further, Mr. James Conmy testified that he is a
detective with the Wilkes-Barre City Police Department. He
indicated that he responded to a call involving an alleged
protection from abuse violation at [the] bakery[.] Upon his
arrival, Olivio showed him the recorded video of the
exchange between her and the Appellant. The detective
testified that he also viewed the secured video footage from
both inside and outside of the bakery on the date and at the
time at issue.
The Appellant’s friend, Nicholas Torres, testified that after
he, the Appellant and another friend entered the bakery,
they saw Olivio. He claimed that Olivio told them that they
were not supposed to be in the bakery and that he (Torres),
attempted to get everyone to leave the premises. According
to Torres, after Olivio told everyone that they were not
supposed to be in the bakery near her, the Appellant
remained in the bakery less than two minutes and then left
the premises.
Furthermore, the Appellant testified that he went inside the
bakery with his friends not knowing that Olivio was inside.
The Appellant claimed that once he was inside, he saw
Olivio’s boyfriend and that the boyfriend started arguing
with Appellant. He stated that Olivio turned around and told
him that he was not supposed to be around her in the
bakery. The Appellant testified that he told Olivio that he
did not know that she was in the bakery. Appellant testified
that a verbal altercation broke out; the bakery employees
asked them to leave and they did leave. Upon cross-
examination, Appellant was asked as to whether he called
Olivio a “bitch.” Appellant responded that he did not recall.
He further stated that he did not speak to her at first.
Appellant admitted upon cross-examination that when he
entered the bakery, he saw that Olivio was inside the
bakery. The recorded video [FN 2] presented by Olivio
reflected Olivio telling Appellant that he was not supposed
to be in the bakery at the same time as he and was not
supposed to be around her.
FN 2: The recorded video presented by the
Commonwealth, the Appellee, was summarized by
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Appellee’s counsel without any objection to the summary
from Appellant’s counsel.
Appellant then proceeded to call Olivio degrading names.
Appellant continued to talk about seeing Olivio’s vehicle
outside, calling Olivio names and engaging in a heated
altercation. Appellant’s friends also came up close to
Olivio’s face saying negative things to her as well.
Trial Court Opinion, 3/20/22, at 2-4 (cleaned up) (some citations to the record
omitted).
After weighing the testimony and evidence, the trial court determined
that Appellant knew, or reasonably should have known, that his verbal abuse
constituted wrongful conduct. See Boyer, supra. The court opined that
Appellant’s entry into the bakery might have been coincidental, but as the
court observed, Appellant said he had seen Olivio’s car in the parking lot. This
fact is mostly beside the point. When Appellant realized Olivio was inside the
bakery, the court found that Appellant chose to stay and accost Olivio. The
trial court disagreed with Appellant’s argument that that Olivio’s statement to
him – that he was not allowed to be there – was a mitigating factor in this
instance.
On appeal, Appellant likens his case to Haigh to argue that he did not
threaten Olivio. But this argument fails for a variety of reasons. First, Haigh
does not apply here. As a matter of law, Haigh does not require the defendant
to make verbal threats for the defendant’s conduct to be construed as
wrongful. For instance, other wrongful conduct, such as stalking, would also
be a violation of the order. Second, Haigh is also distinguishable on its
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facts. There, we held that the court abused its discretion when it found the
defendant in indirect criminal contempt, because the defendant did not have
wrongful intent when he asked the wife about her health. “A reasonable
person could have believed, and [the defendant] did believe, that the PFA
order was relaxed to some extent in the courtroom context, especially where
the [defendant] was shackled and the victim was protected by an armed
deputy sheriff.” Haigh, 874 A.2d at 1177.3
Here, by contrast, Appellant’s entry into the bakery might have been
innocent until he stayed and harassed Olivio. Although the interaction lasted
a matter of minutes, the altercation was heated to the point that the bakery
asked them both to leave and called law enforcement. This is a far cry from
the “peculiar circumstances” of Haigh. That Olivio was also subject to a
cross-PFA order is largely irrelevant to the question of whether Appellant
violated his. We suppose the court could have found Olivio’s behavior to be
indicative of Appellant’s lack of wrongful intent. But that is not what the court
determined, and we will not disturb that finding.
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3 To be perfectly clear, we do not suggest that courthouses provide defendants
a safe harbor to violate PFA orders. It is not uncommon for PFA defendants,
believing that they are shielded by a cloak of plausible deniability, to commit
a violative act in a courtroom. See, e.g., C.L. v. Lewis, -- A.3d. --, 2020 WL
1193399, at *1 (Pa. Super. 2020) (non-precedential decision) (affirming an
indirect criminal contempt conviction where the husband’s wrongful conduct
included: making a beeline toward the wife to sit behind her in a half-empty
courtroom; speaking in a loud, obnoxious, and aggressive tone so she could
hear; and pointedly turning toward and smirking at the wife upon exiting the
courtroom).
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Appellant’s reliance on Haigh fails for still another reason. This case
could be analogous to Haigh if, and only if, we re-weighed the evidence and
viewed it in a light most favorable to Appellant. But again, this is not how we
review appeals from orders finding a PFA defendant in contempt. Instead, we
are confined to a determination of whether the facts support the trial court’s
decision, and we will reverse a trial court’s determination only where there
has been a plain abuse of discretion. Commonwealth v. Wilson, 227 A.3d
928, 933 (Pa. Super. 2020) (citation omitted). Having found no abuse of
discretion under these facts, we affirm the trial court order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2022
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