Com. v. Thompson, B.

J-A10027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN PAUL THOMPSON :
:
Appellant : No. 1100 MDA 2021
Appeal from the Order Entered July 20, 2021,
in the Court of Common Pleas of Columbia County,
Criminal Division at No(s): CP-19-CR-0000087-2021.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 22, 2022
Brian Thompson appeals from the trial court’s denial of his motion to
dismiss based on double jeopardy. We reverse.
The trial court summarized the facts as follows:
[Thompson] and Billee Kvedrowicz (Mother) are the
biological parents of minor child “E.R.T.” On December 3, 2020,
[Thompson] was ordered by the court to return the [child] to
maternal grandmother pursuant to an existing custody order.
[Thompson returned the child. However, after maternal
grandmother exchanged the child per the custody order,
Thompson again withheld the child from the child’s maternal
grandmother beyond the custody period]. On December 16,
2020, Mother filed a Petition for Contempt and Request for
Emergency Relief. After a hearing on December 22, 2020, the
court determined [Thompson] had failed to comply with the
standing order and was contemptuous of the court. He was found
to be in contempt of court.
On December 23, 2020, a criminal complaint was filed
charging [Thompson] with Interference with Custody of Children.
On or about December 27, 2020, [child] was returned to maternal
J-A10027-22
grandmother, and [Thompson] surrendered himself to law
enforcement. On February 24, 2021, a sentencing hearing for
contempt was conducted, and [Thompson] was sentenced to pay
a fine of $1,000[.00] and serve a flat sentence of incarceration of
5 days. During the February 24, 2021, hearing, Judge Gary E.
Norton cited the “vindication of the dignity and authority of the
Court”, referencing “yelling” and “accusations” that occurred in his
presence at the hearing. In regards to [Thompson’s] conduct,
Judge Norton stated:
I would deem this to be either direct criminal contempt or
indirect criminal contempt. Civil contempt is for the purpose
of ensuring or coercing compliance. There has been
compliance at this point. At this point, though, it’s an issue
of vindication of the dignity and authority of the Court.
Some of this stuff happened in my presence during the
hearing, and that was the repeated accusation after I made
a finding of fact that it was incorrect, not a fact, that the
child was being raped. And, also then out of my presence,
which is indirect criminal contempt for failure to return the
child—the Sheriff said December 27th—that is five days. I
told him before he hung up that the child was to be returned
and have the Order followed precisely. And if there were
any problems, they were to be reported to Children and
Youth Services, who was then to take matters into their
hands. So I don’t deem this to be a civil contempt hearing.
I deem this to be a criminal contempt hearing.
N.T., 2/24/21, at 10.
Trial Court Opinion, 11/09/21, at 1-3.
Following the sentencing hearing for contempt, Thompson filed a timely
omnibus pre-trial motion asking the court to dismiss the criminal charge
against him based on double jeopardy. On July 20, 2021, the trial court denied
-2-
J-A10027-22
the motion.1 Thompson moved for reconsideration, which the court denied,
and this timely appeal followed.
Thompson raises one issue on appeal. He asks whether his “prosecution
. . . for interference with the custody of children [is] barred by double jeopardy
pursuant to the 5th Amendment of the United States Constitution[.]”
Thompson’s Brief at 4.
Thompson argues that an indirect criminal contempt conviction for
violating a custody order addresses the same elements as a prosecution for
interference with the custody of children. Thus, the instant prosecution, based
on the same conduct for which he was convicted of indirect criminal contempt,
is barred by double jeopardy. We agree.
“[A]n appeal grounded in double jeopardy raises a question of
constitutional law. This [C]ourt’s scope of review in making a determination
on a question of law is, as always, plenary. As with all questions of law, the
appellate standard of review is de novo.” Commonwealth. v. Kearns, 70
A.3d 881, 884 (Pa. Super. 2013) (quoting Commonwealth v. Vargas, 947
A.2d 777, 780 (Pa. Super. 2008)).
“The Double Jeopardy Clause, applicable to the States through the
Fourteenth Amendment, provides that no person shall ‘be subject for the same
offense to be twice put in jeopardy of life or limb.’” Commonwealth v.
Jackson, 10 A.3d 341, 344-45 (Pa. Super. 2010), quoting (Commonwealth
____________________________________________
1 The requirements of Pa.R.Crim.P. 587(b) have been met, rendering this
question immediately appealable as a collateral order.
-3-
J-A10027-22
v. Decker, 664 A.2d 1028, 1029 (Pa. Super. 1995)). Furthermore, double
jeopardy protects against a second prosecution for the same offense after
acquittal or conviction, and it protects against multiple punishments for the
same offense. Id.In determining whether a defendant’s protection against multiple
punishments for the same offense has been violated, we apply the test set
forth in Blockburger v. United States, 284 U.S. 299 (1932). Under the
Blockburger test, “where the two offenses for which the defendant is
punished or tried cannot survive the ‘same-elements’ test, the double
jeopardy bar applies.” United States v. Dixon, 509 U.S. 688, 696 (1993).
“The same-elements test, sometimes referred to as the ‘Blockburger’ test,
inquires whether each offense contains an element not contained in the other;
if not, they are the ‘same offence’ and double jeopardy bars additional
punishment and successive prosecution.” Id.Applying the Blockburger test “requires a comparison of the elements
of the offenses to determine whether each offense requires proof of a fact
which the other does not.” Commonwealth v. Caufman, 662 A.2d 1050,
1052 (Pa. Super. 1995) (some punctuation omitted). Mere overlap in proof
between the two prosecutions does not establish a double jeopardy violation.
Id.As a preliminary matter, we note that a trial court may order civil or
criminal contempt. In the Interest of E.O., 195 A.3d 583, 586 (Pa. Super.
2018) (quoting In the Interest of C.W., 960 A.2d 458, 466 (Pa. Super.
-4-
J-A10027-22
2008)). If the court’s dominant purpose in finding contempt is to coerce
compliance by the contemnor, the adjudication is civil in nature. Id. If the
court’s dominant purpose is to punish disobedience by the contemnor, the
adjudication is criminal in nature. Id.In Pennsylvania, we further distinguish between direct and indirect
criminal contempt.
A direct criminal contempt consists of misconduct of a person in
the presence of the court, or disobedience to or neglect of the
lawful process of the court, or misbehavior so near thereto as to
interfere with the immediate business of the court. 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.
Id.Here, the trial court found Thompson in indirect contempt for violating
its custody orders, including the orders dated May 22, 2020, and December
3, 2020.2 Section 5323 of the Domestic Relations Code authorizes a court to
sanction for contempt for failure to comply with a custody order:
(g) Contempt for noncompliance with any custody order
(1) A party who willfully fails to comply with any custody order
may, as prescribed by general rule, be adjudged in contempt.
____________________________________________
2 While the trial court cited Thompson’s courtroom behavior in the second
contempt hearing on February 24, 2021, the original contempt order found
Thompson in contempt only for violating the two custody orders, not for his
behavior in the courtroom. In addition, the sentencing order dated February
24, 2021, referred only to a finding of indirect contempt. Thus, for the
purposes of our double jeopardy analysis, we compare the finding of indirect
contempt of custody with the instant prosecution for interference with the
custody of children.
-5-
J-A10027-22
Contempt shall be punishable by any one or more of the
following:
(i) Imprisonment for a period of not more than six months.
(ii) A fine of not more than $500.
23 Pa.C.S.A. § 5323(g)(1)(i)-(ii). “Contempt of court will always comprise the
following two elements: (1) a court order made known to the defendant, and
(2) willful violation of that order.” Commonwealth v. Yerby, 679 A.2d 217,
220 (Pa. 1996).
Thompson presents this Court with the question of whether double
jeopardy bars a prosecution for the interference with the custody of children
when the charge is based on the same conduct for which he was convicted of
indirect contempt. The Supreme Court of the United States held that the
Double Jeopardy Clause applies to criminal contempt prosecutions just as it
does to other criminal prosecutions. Dixon, 509 U.S. at 696.
In Pennsylvania, our Supreme Court rejected a literalistic application of
the Blockburger test to criminal contempt convictions, noting that such an
approach “renders double jeopardy protections illusory” as “neither [element
of indirect contempt] will ever be necessary in proving a substantive criminal
offense and every substantive criminal offense will contain additional
elements.” Yerby, 679 A.2d at 220. Instead, the court opted for an approach
that considers the specific contempt order at issue and the elements of its
violated conditions. Id. at 221. As the Court explained, “[W]e must look to
the specific offenses at issue in the contempt proceeding and compare the
-6-
J-A10027-22
elements of those offenses with the elements of the subsequently charged
criminal offenses.” Id. “If they are the same, or if one is a lesser included
offense of the other, double jeopardy attaches and the subsequent
prosecution is barred.” Id. “The focus, then, is on the offense(s) for which
the defendant was actually held in contempt.” Id.
In Yerby, the trial court held the defendant in indirect criminal contempt
for violating the terms of a Protection from Abuse (PFA) order. Specifically,
the defendant violated the order’s provision that enjoined him from “striking,
threatening, abusing or harassing” his ex-girlfriend when he threatened the
woman with a firearm, choked her, and forced her into a vehicle. Id.
Following the finding of indirect criminal contempt, the Commonwealth
charged the defendant with making terroristic threats. After the trial court
denied his motion to dismiss on double jeopardy grounds, a jury convicted
him of the terroristic threats offense and this Court affirmed that conviction.
Id.
On appeal, our Supreme Court held that double jeopardy did not apply
because (1) the defendant was never found guilty of making terroristic threats
at the contempt hearing and (2) the actual PFA order at issue did not include
the elements of terroristic threats. Id. at 223. The trial court based its finding
of contempt on the violent incident between the defendant and his ex-
girlfriend, but it never specified that the defendant violated the order by
making threats. Id. Furthermore, “[e]ven if the finding of contempt was
based on [the defendant’s threats], the trial court need not have found that
-7-
J-A10027-22
the elements of the crime of terroristic threats were established.” Id. “The
PFA order prohibited [the defendant] not from committing the crime of
terroristic threats, but only from ‘threatening’ [his ex-girlfriend].” Id. Since
the trial court’s finding of indirect criminal contempt did not require the
prosecution to prove all elements of the offense of terroristic threats, double
jeopardy did not bar the defendant’s subsequent prosecution and conviction
for making terroristic threats. Id.
This Court took a similar approach in Commonwealth v. Jackson to
determine whether a finding of indirect criminal contempt, under the specific
text of the PFA order, precluded the defendant from prosecution for criminal
trespass. Commonwealth v. Jackson, 10 A.3d 341, 346 (Pa. Super. 2010).
In Jackson, after the defendant was held in indirect criminal contempt of a
PFA order for entering the marital residence, he was charged with criminal
trespass for the same action. We compared the elements of criminal trespass
with the elements of indirect criminal contempt and reasoned that:
in order to prove that Jackson committed criminal trespass, the
Commonwealth would have to prove that Jackson (1) knew he
was not licensed or privileged to enter the marital residence and
(2) that he entered the marital residence. In order to find Jackson
in indirect criminal contempt, the Commonwealth would have to
establish that Jackson (1) entered the [marital] residence, (2)
despite knowing that he was not permitted to enter (as well as
multiple elements that are not required for a conviction of criminal
trespass, i.e. whether the PFA order was sufficiently specific;
whether Jackson had notice of the PFA order; and whether he
acted with wrongful intent). Therefore, in order to prove indirect
criminal contempt, the Commonwealth would have to prove both
elements that make up the crime of trespass, as well as additional
elements unique to the indirect criminal contempt charge.
-8-
J-A10027-22
Accordingly, in this instance, criminal trespass is a “species of
lesser-included offense” of Jackson’s indirect criminal contempt
violation.
Id. Because the finding of indirect criminal contempt required the prosecution
to establish both elements of the criminal trespass offense, this Court found
that double jeopardy barred the subsequent prosecution. Id.Here, we must compare the substantive charge of interference with the
custody of children against the text of the custody orders Thompson violated
to determine whether double jeopardy applies.
Under our statutes, a person commits the crime of interference with the
custody of children “if he knowingly or recklessly takes or entices any child
under the age of 18 years from the custody of its parent, guardian or other
lawful custodian, when he has no privilege to do so.” 18 Pa.C.S.A § 2904.
This court held that a defendant ‘takes’ a child under Section 2904 if he
interrupts lawful custody with a physical act, including if he withholds a child
from another’s lawful custody. Commonwealth. v. Giese, 928 A.2d 1080,
1083 (Pa. Super. 2007).
The custody orders Thompson violated required him to return the child
to the mother (or maternal grandmother) at the end of his periods of partial
custody. First, he did not return the child in November, prompting a special
relief petition and order dated December 3, 2020. This order required
Thompson to return the child and to follow the parties’ custody order of May
22, 2020. Thompson again refused to return the child to his maternal
grandmother at the end of his next custody period. Mother again filed for
-9-
J-A10027-22
emergency relief and contempt. Based on Thompson’s noncompliance with
the standing orders, the trial court found him in indirect criminal contempt.
To find Thompson in contempt, the trial court had to find all the
elements of interference with the custody of children. Under Section 2904,
the Commonwealth would have to prove that Thompson (1) knowingly took a
child under the age of 18 from the custody of its guardian (2) when he had no
privilege to do so. 18 Pa.C.S.A § 2904. Likewise, to find Thompson in indirect
criminal contempt for violating the custody orders, the trial court had to find
that Thompson (1) knowingly withheld the child, who was under the age of 18
years, from the lawful custody of the child’s maternal grandmother (2) without
the privilege to do so (in addition to elements unique to the indirect criminal
contempt charge).
Since withholding a child from another’s lawful custody amounts to a
taking under Section 2904, we find that the indirect criminal contempt offense
contains all the elements of interference with the custody of children. The
substantive offense is a lesser-included offense of the trial court’s contempt
finding. Thus, double jeopardy bars a subsequent prosecution for interference
with the custody of children based on the same conduct for which Thompson
had previously been held in indirect criminal contempt.3
____________________________________________
3 Although no Pennsylvania appellate court has addressed the precise issue
raised in this appeal, we note that the Court of Criminal Appeals of Texas has
addressed it. The Texas Court similarly concluded that double jeopardy barred
a criminal prosecution under the Texas statute prohibiting interference with
(Footnote Continued Next Page)
- 10 -
J-A10027-22
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2022
____________________________________________
child custody after a criminal contempt finding based on the same conduct.
Ex parte Rhodes, 974 S.W.2d 735, 736 (Tex. Crim. App. 1998).
In Texas, a person commits the offense of interference with child
custody if he: (1) the takes or retains a child younger than 18 years of age;
(2) “when the person knows that [his] taking or retention violates the express
terms of a judgment or order, including a temporary order, of a court
disposing of the child’s custody.” Tex. Penal Code § 25.03 (emphasis added);
see Hammack v. State, 622 S.W.3d 910, 915 (Tex. Crim. App. 2021). Using
this statutory language, the Texas Court concluded that indirect criminal
contempt was a lesser-included offense of the interference with child custody
charge.
Unlike the Texas Penal Code, the Pennsylvania statute prohibiting
interference with the custody of children statute makes no specific reference
to a court order. Nevertheless, we reach the same result as the Texas Court.
In Texas, violating a specific child custody order is a lesser included charge in
the criminal statute. In Pennsylvania, we conclude that the offense is a lesser
included charge in violating the specific custody order. This is a distinction
without a difference because in either scenario, double jeopardy bars a
criminal prosecution after the defendant was found in contempt of the custody
order for the same conduct.
- 11 -
J-A10027-22
- 12 -