Com. v. Wilson, E.

J-S09043-19
2020 Pa. Super. 18
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
EDWARD D. WILSON, :
:
Appellee : No. 1458 WDA 2018
Appeal from the Order Dated September 20, 2018
in the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-MD-0000237-2018
BEFORE: PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.*
OPINION BY STRASSBURGER, J.: FILED JANUARY 31, 2020
The Commonwealth appeals from the order dated September 20,
2018. In that order, the trial court sua sponte vacated its July 23, 2018
judgment, which found Edward D. Wilson (Wilson) guilty of indirect criminal
contempt (ICC) for violating an emergency order entered pursuant to the
Protection from Abuse (PFA) Act, 23 Pa.C.S. §§ 6101-6122. We vacate the
September 20, 2018 order vacating the July 23, 2018 judgment, and
remand for reinstatement of the July 23, 2018 judgment finding Wilson
guilty of ICC and for sentencing.
Wilson declined counsel at both the ICC hearing and the sentencing
hearing, and represented himself pro se. In a prior memorandum, we held
that the trial court erred by not conducting an on-the-record colloquy of
*Retired Senior Judge assigned to the Superior Court.
J-S09043-19
Wilson’s waiver of his statutory right to counsel1 that comported with
Pa.R.Crim.P. 121, and we remanded for the trial court to conduct a hearing
to determine whether Wilson desired to proceed pro se or with counsel in
this appeal, after advising Wilson of his right to counsel in accordance with
Rule 121. Commonwealth v. Wilson, 217 A.3d 439 (Pa. Super. 2019)
(unreported memorandum).
Such a hearing occurred on June 7, 2019, and Wilson invoked his right
to counsel. However, the trial court neither determined whether Wilson was
indigent nor appointed counsel before returning the record to this Court. On
August 13, 2019, this Court directed the trial court to appoint counsel for
Wilson if it determined that Wilson was indigent. The trial court determined
Wilson was indeed indigent based upon his incarceration in a state
correctional institution and appointed counsel. Preston T. Younkins, Esquire,
from the Armstrong County Office of the Public Defender, entered his
appearance in this Court on August 15, 2019. This Court issued a briefing
schedule to provide Wilson with the opportunity to file an appellee’s brief by
September 30, 2019. Even though this Court provided notice to Wilson via
Attorney Younkins, Wilson did not avail himself of the opportunity to file a
brief or request an extension of time in which to file a brief. Since the
1 See 23 Pa.C.S. § 6114(b)(3) (“The defendant shall not have a right to a
jury trial on a charge of ICC. However, the defendant shall be entitled to
counsel.”)
-2-
J-S09043-19
deadline to file an appellee’s brief has long since passed, this matter is now
ripe for our resolution.
In our prior memorandum, we set forth the facts of this case as
follows.
In June 2018, C.J., who lived with Wilson and shares four
minor children (Children) with him, filed an emergency PFA
petition seeking protection from Wilson. In the petition, she
averred that Wilson kept calling her and she would not answer.
He showed up at the house demanding that she tell him what he
did, and then struck her in the face. According to C.J., when she
called out for Children to call 911, Wilson put his hand on her
mouth to stop her from yelling. When C.J. and Wilson’s five-
year-old son tried to protect her, Wilson threw a pogo stick.
Emergency PFA Petition, 6/11/2018, at 1.
On June 8, 2018, a magisterial district judge signed an
order granting emergency PFA relief []. Emergency PFA Order,
6/11/2018, at 1. In accordance with section 6110 of the PFA
Act, following an ex parte hearing, the magisterial district judge
found upon good cause that it was necessary to protect C.J. and
Children from Wilson. Id.; 23 Pa.C.S. § 6110. The magisterial
district judge ordered Wilson to: (1) refrain from abusing C.J.
and Children; (2) refrain from contacting C.J. and Children; and
(3) be evicted from the residence on Orr Avenue in Kittanning,
Pennsylvania. Emergency PFA Order, 6/11/2018, at 1.
Thereafter, Appellant was served with the emergency PFA order.
On June 11, 2018, the next business day, C.J. filed pro se
a PFA petition with a verified statement of abuse. PFA Petition,
6/11/2018. In the PFA petition, she provided more details about
the June 8, 2018 incident to which she referred in her
emergency PFA petition. Id. at 1-2. She also recounted prior
abuse by Wilson. Id. at 2. In response to C.J.’s petition, the
trial court entered a temporary PFA order and scheduled a
hearing. Temporary PFA Order, 6/11/2018, at 1-2. However,
after two attempts, the sheriff of Armstrong County was unable
to serve Wilson with the PFA petition and temporary PFA order.
Sheriff’s Return, 6/25/2018. Furthermore, on June 20, 2018,
C.J. failed to appear for the PFA hearing, prompting the trial
-3-
J-S09043-19
court to dismiss the temporary PFA order and to dismiss the
entire PFA matter without prejudice. Order to Dismiss,
6/20/2018, at 1.
Meanwhile, on June 13, 2018, the Commonwealth had filed
an ICC complaint against Wilson. ICC Complaint, 6/13/2018, at
1. In the complaint, the Commonwealth accused Wilson of
violating the emergency PFA order, stating that after he was
served with the emergency PFA order, he called C.J.’s cell phone,
used profanity, and yelled at her for obtaining a PFA against him.
Id.
On July 23, 2018, the trial court conducted a non-jury trial
regarding the ICC complaint. Wilson appeared pro se. The
Commonwealth called two witnesses: Officer Donald Blose of the
Kittanning Borough Police Department and C.J. Wilson testified
on his own behalf. At the conclusion of trial, the trial court
entered an order adjudging Wilson to be in contempt, and
ordered him to appear for sentencing. Order, 7/24/2018, at 1.
At the September 20, 2018 sentencing hearing, Wilson
again appeared pro se. During the hearing, the trial court sua
sponte vacated the July 24, 2018 order finding Wilson guilty and
dismissed the ICC complaint, stating that Wilson had
“represented[ed] that the underlying PFA order[,] which gave
rise to the [ICC] Complaint[,] ha[d] been dismissed.” N.T.,
9/20/2018, at 8; Order, 9/20/2018, at 1.
The Commonwealth timely filed a notice of appeal. Both
the Commonwealth and the trial court complied with Pa.R.A.P.
1925. The Commonwealth presents one issue on appeal: “Did
the trial court err and/or abuse its discretion when it sua sponte
vacated [Wilson’s ICC] conviction and dismissed the complaint at
the time of sentencing?” Commonwealth’s Brief at 1 [].
Wilson, supra (unreported memorandum at 1-2) (footnotes omitted; some
capitalization altered).
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
-4-
J-S09043-19
accordance with the law. 23 Pa.C.S. § 6114(a). This Court has described
the elements required for a finding of ICC as follows.
Where a PFA order is involved, an [ICC] charge is designed to
seek punishment for violation of the protective order.... To
establish [ICC], 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. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007)
(some capitalization altered). “When reviewing a contempt conviction ... we
are confined to a determination of whether the facts support the trial court
decision. We will reverse a trial court’s determination only when there has
been a plain abuse of discretion.” Id. at 111 (citation omitted).
At the ICC hearing, the Commonwealth introduced the following
evidence, beginning with Officer Blose’s testimony. Officer Blose served
Wilson with the emergency PFA order at 2:00 p.m. on June 10, 2018. N.T.,
7/23/2018, at 5. Officer Blose hand delivered the order to Wilson in a side
alley outside the residence shared by Wilson and C.J. Id. at 6. During
service, Officer Blose told Wilson that Wilson could have no contact, direct or
indirect, with C.J. Id. at 5. Specifically, he told Wilson, “don’t call her, don’t
stop by the house, [and] don’t have anybody else call her for you, or it
would be a violation of the PFA.” Id. After serving Wilson, Officer Blose
went to the front porch of the house. Id. He told C.J. that he had served
-5-
J-S09043-19
the emergency PFA order and to call 911 if there were any violations. Id.
According to Officer Blose, C.J.
held up her phone and said, is this a violation? And I said, who
is it? And she said, it’s [Wilson]. He called me, yelling at me,
calling me a bitch. It’s him right now. So she put the phone up
and let me listen, and I could hear him yelling at her. I could
hear his voice. I am familiar with [] Wilson. I’ve known him for
quite a few years. I told her, yeah, that’s a violation. I will try
to locate him and I will file [an ICC] complaint.
Id. The call from Wilson occurred at approximately 2:25 p.m. – just twenty-
five minutes after Officer Blose had served Wilson with the emergency PFA
order and informed him not to contact C.J. Id. at 7. C.J. told Officer Blose
that she answered the phone because the call came from a blocked number.
Id. at 10.
C.J. testified next. After obtaining the emergency order, C.J. initially
stayed in her camper in another town. Id. at 12. On June 10, 2018, C.J.
returned to the shared residence to gather Wilson’s clothes,2 and was
present when Officer Blose served Wilson with the PFA outside of the
residence. Id. at 12-13. After Wilson was served, Wilson left. Id. Shortly
thereafter, Wilson called C.J. from a number that was different from his
usual number. Id. at 13. Her phone identified the number as “[u]nknown
or blocked[.]” Id. at 14. She answered the call and recognized Wilson’s
2 C.J. did not indicate whether she did this on her own initiative in
anticipation of Wilson’s exclusion from the home, or whether she and Wilson
remained in contact and he requested her to gather his clothes.
-6-
J-S09043-19
voice. Id. She said she did not remember the conversation, but she was
sure he called her something derogative and he was upset with her because
she had moved their jointly-owned boat to a different location. Id. She
agreed with Officer Blose that the call came after Wilson had been served
with the emergency PFA order. Id.
Wilson, representing himself pro se, testified in his own defense.
According to Wilson, when he was speaking to Officer Blose, C.J. pulled up to
the house in her vehicle. Id. at 16. Shortly thereafter, Officer Blose served
him with the emergency PFA order. He admitted to calling C.J., stating he
did so “because she was taking the boat that was in both of our names. … I
was trying to work things out with [C.J.] to explain – I mean, why was she
taking the boat off the property where it was when nobody needed to do
that.” Id. at 16-17. Wilson also stated that “there is no more PFA involved
in the matter or anything like that.” Id. at 17.
At the conclusion of testimony, prior to entering an order finding
Wilson guilty of ICC, the trial court stated, “[w]ell, the order directed you
have no contact, direct or indirect. A phone call is direct contact.” Id. at
18; see also Order, 7/24/2018, at 1.
Approximately two months later, Wilson appeared for sentencing.
According to the notes of testimony, the sentencing hearing lasted a total of
eight minutes. The Commonwealth did not request a specific sentence, but
requested that the trial court consider the “very rocky relationship” between
-7-
J-S09043-19
Wilson and C.J., his pending charges for assaulting C.J. and their son, his
newly-acquired charges of conspiracy for obstruction of justice and witness
intimidation regarding his alleged attempt to prevent C.J. and their son from
testifying in the assault matter, and his pattern of violent behavior against
C.J. and others. N.T., 9/20/2018, at 4-5.
The trial court asked Wilson if there was anything he wanted to say.
Wilson, who again appeared pro se, responded by stating that C.J. had
“bonded [him] out” when he was arrested for aggravated assault against
another individual, and alleged that he and C.J. “ha[ve] been together ever
since.” Id. at 6. He claimed that C.J. wanted to drop the pending simple
assault charges against him for assaulting her, but the district attorney
threatened to charge C.J. if she dropped the simple assault charges. Id.
Wilson then informed the trial court that while C.J. had obtained a PFA order
against him, she later “dropped” it, and there was no final order. Id. at 7.
The clerk of court confirmed that there was an order to dismiss the
PFA matter on June 20, 2018. Id. at 8. Immediately upon hearing this, the
trial court sua sponte entered an order on the record dismissing the ICC
complaint and vacating the July 23, 2018 order finding Wilson guilty. Id.;
see also Order, 9/20/2018, at 1. The only explanation offered by the trial
court on the record at the time was the representation by Wilson that “the
underlying PFA order which gave rise to the [ICC complaint] has been
dismissed.” Id.
-8-
J-S09043-19
The trial court offered the following analysis in its Rule 1925(a)
opinion.
In the instant case, the [trial court] initially determined that the
Commonwealth had proven beyond a reasonable doubt that
[Wilson] had violated the PFA [o]rder[3] on June 8, 2018,[4] a few
minutes after having been served with it. The facts from the
non-jury trial indicate that the period during which Officer Blose
arrived at [the residence of Wilson and C.J.], served the PFA
[o]rder on [Wilson], spoke with C.J., and heard [Wilson’s] voice
on C.J.’s cellular phone, spanned only a few minutes. Indeed,
[Wilson’s] testimony indicated that the events occurred almost
simultaneously. Nevertheless, [the trial court] concluded that
the Commonwealth had carried its burden because it essentially
was undisputed that [Wilson] had called C.J. on her cellular
telephone after having been served with the PFA [o]rder that
prohibited all contact by whatever means.
At sentencing, the [trial c]ourt discovered, for the first
time, that the PFA [o]rder had been dismissed due to C.J.’s
failure to appear at the final hearing on June 20, 2018. Thus,
the PFA [o]rder was no longer in effect at the time of both trial
and sentencing. Given the proximity in time of the service of the
PFA [o]rder with the alleged violation, and further considering
C.J.’s presence and interactions with [Wilson] as the [o]rder was
being served, [the trial court] concluded that the guilty verdict
ought not stand because of insufficient evidence to establish that
[Wilson] acted with wrongful intent. Rather, [Wilson]
perceived that C.J. acted with ulterior motives in seeking
the PFA [o]rder and did not believe she intended to
enforce it. That perception was confirmed when C.J. later failed
to appear at the PFA hearing.
3 As we discuss infra, it is unclear to which PFA order the trial court is
referring.
4The date of service of the emergency PFA order is unclear from the record.
The order was obtained on June 8, 2018, and Officer Blose testified he
served it on June 10, 2018. At any rate, the parties do not dispute that
service and the phone call occurred on the same day.
-9-
J-S09043-19
Although the [trial court] may not, post-verdict, reweigh
the evidence, it may consider the issue of the sufficiency of the
evidence. See Commonwealth v. Robinson, 33 A.3d 89, 94
(Pa. Super. [] 2011). The [trial court] was not at any time, and
ought to have been, advised as to the underlying circumstances
regarding the parties’ relationship and the dismissal of the PFA.
In the interests of justice, and to prevent the inclusion of the
[trial court] and its resources in what clearly has been an
ongoing spectacle of game-playing by these parties, the [trial
court] vacated its prior verdict and dismissed the [ICC]
complaint. Had the [trial court] been aware at trial, as it should
have been, of the insufficiency of the evidence, it would not have
entered the original guilty verdict. In the [trial court’s] view,
justice required that it be vacated. As it is, the Commonwealth
continues to litigate the contempt where the PFA is long
abandoned and the parties reside in harmony.
Trial Court Opinion, 11/6/2018, at 4-5 (one citation omitted) (emphasis
added).
On appeal, the Commonwealth argues that the trial court had no
authority to change its mind sua sponte post-verdict on the basis of a factual
re-determination. Commonwealth’s Brief at 6 (citing Commonwealth v.
Parker, 451 A.2d 767, 769 (Pa. Super. 1982)). In the Commonwealth’s
view, the trial court improperly re-deliberated its original verdict at the
sentencing hearing. Id. (citing Commonwealth v. Robinson, 33 A.3d 89,
94 (Pa. Super. 2011)). This was in error, the Commonwealth posits,
because it had proved that Wilson had notice of an order prohibiting contact
with C.J., but he knowingly violated the no-contact order within a half-hour
of being served with the order, with his only defense being his concern about
his boat. Id. at 5. Finally, the Commonwealth notes that whether or not a
- 10 -
J-S09043-19
final PFA order was granted is not relevant to whether Wilson violated a valid
emergency PFA by contacting C.J. Id. at 6. The Commonwealth requests
reinstatement of the ICC judgment and a remand for sentencing. Id. at 7.
Before we delve into the merits, we first address the Commonwealth’s
ability to appeal from the September 20, 2018 order dismissing the ICC
complaint and vacating the prior order adjudicating Wilson guilty of ICC
without offending Wilson’s right to be free from double jeopardy. Such an
examination involves a question of law; thus, “our scope of review is plenary
and our standard of review is de novo.” Commonwealth v. Baldwin, 158
A.3d 1287, 1292 (Pa. Super. 2017) (citation omitted).
“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) (citing U.S. Const.
Amend. V)). “Under the Double Jeopardy Clauses of the United States and
Pennsylvania Constitutions, as well as under the Pennsylvania Crimes Code,
a second prosecution for the same offense after acquittal is prohibited.”
Baldwin, 158 A.3d at 1292 (citing U.S. Const. Amend. V; Pa. Const. Art. I,
§ 10; 18 Pa.C.S. § 109(1)). In Pennsylvania, “[i]t is undisputed that double
jeopardy attaches to criminal contempt trials.” Commonwealth v. Zerphy,
481 A.2d 670, 672 n.4 (Pa. Super. 1984) (citing Cipolla v. Cipolla, 398
- 11 -
J-S09043-19
A.2d 1053 (Pa. Super. 1979)). The purpose of the Double Jeopardy Clause
is to guarantee
that the [s]tate shall not be permitted to make repeated
attempts to convict the accused, thereby subjecting him to
embarrassment, expense[,] and ordeal and compelling him to
live in a continued state of anxiety and insecurity as well as
enhancing the possibility that even though innocent he may be
found guilty.
U.S. v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977) (citation and
quotation marks omitted).
Accordingly, “[w]hen a successful post[-]acquittal appeal by the
prosecution would lead to proceedings that violate the Double Jeopardy
Clause, the appeal itself has no purpose” and is prohibited. Smalis v.
Pennsylvania, 476 U.S. 140, 145 (1986); see also Commonwealth v.
Feathers, 660 A.2d 90, 92 (Pa. Super. 1995) (en banc) (“No matter how
erroneous, a verdict of acquittal cannot be reviewed without putting a
defendant twice in jeopardy.”).
However, the United States Supreme Court has made a distinction, for
double jeopardy purposes, between an appeal from a judgment of acquittal
and an appeal from “a post[-]verdict ruling of law by a trial judge.” United
States v. Wilson, 420 U.S. 332, 352-53 (1975). Unlike an appeal from a
judgment of acquittal, correcting an error of law post-verdict does not “grant
the prosecutor a new trial or subject the defendant to the harassment
traditionally associated with multiple prosecutions.” Id. Accordingly, “when
- 12 -
J-S09043-19
a judge rules in favor of the defendant after a verdict of guilty has been
entered by the trier of fact, the [g]overnment may appeal from that ruling
without running afoul of the Double Jeopardy Clause.” Id.; see also
Smalis, 476 U.S. at 145 n.8 (explaining that “no double jeopardy problem
was presented in Wilson because the appellate court, upon reviewing
asserted legal errors of the trial judge, could simply order the jury’s guilty
verdict reinstated; no new factfinding would be necessary, and the
defendant therefore would not be twice placed in jeopardy”) (citation
omitted); Evans v. Michigan, 568 U.S. 313, 330 n.9 (2013) (noting the
holding in Wilson permits appeals by the government if the result the
government is seeking is reinstatement of the verdict); Feathers, 660 A.2d
at 93-94 (holding that the government may appeal from a trial court’s post-
verdict order finding the evidence insufficient to sustain the jury’s verdict
and entering a judgment of acquittal in favor of the defendant because an
appellate reversal would not necessitate a retrial).
In the instant case, the trial court entered a verdict of guilty. During
the sentencing hearing, the trial court, on its own, decided to vacate the
verdict and dismiss the ICC complaint. In a similar scenario, this Court has
held that the Commonwealth is entitled to appeal such a decision. In
Parker, the trial court entered a guilty verdict following a bench trial. The
defendant did not file a post-verdict motion, but the trial court sua sponte
entered an order changing the verdict to not guilty. Parker, 451 A.2d at
- 13 -
J-S09043-19
770. In such a situation, “[t]he challenged order is not truly a verdict of
acquittal, but an order purporting to change already recorded and docketed
verdicts of guilty, entered by a previous order, to verdicts of not guilty.” Id.
Because this Court was only reviewing the procedural propriety of the
subsequent order, and vacation of the challenged order would result in a
reinstatement of the original guilty verdict, this Court concluded that the
Commonwealth’s appeal was not barred by double jeopardy. Id.
Having decided that the matter is appealable, we turn now to the
merits of whether the trial court was entitled to change the verdict sua
sponte at the sentencing hearing. The trial court suggests that the vacation
of the June 20, 2018 order was permissible because it determined at the
sentencing hearing that there was insufficient evidence to convict. Trial
Court Opinion, 11/6/2018, at 4-5. We disagree.
The Rules of Criminal Procedure provide that “[u]nder extraordinary
circumstances, when the interests of justice require, the trial judge may,
before sentencing, hear an oral motion in arrest of judgment, for a judgment
of acquittal, or for a new trial.” Pa.R.Crim.P. 704(B)(1). This Court does not
allow such motions to function “as a substitute vehicle for raising a matter
that should be raised in a post-sentence motion.” Commonwealth v.
Grohowski, 980 A.2d 113, 115 (Pa. Super. 2009). “Rule 704(B) is intended
to allow the trial judge the opportunity to address only those errors so
manifest that immediate relief is essential.” Id. In order for Rule 704(B) to
- 14 -
J-S09043-19
apply, however, the defendant must make an oral motion. Robinson, 33
A.3d at 94. A trial court cannot act sua sponte to change a verdict pursuant
to Rule 704(B). Id. Simply put, “[t]he trial judge cannot alter the verdict
based upon a re[-]determination of credibility or a re-evaluation of the
evidence.” Commonwealth v. Gaither, 513 A.2d 1034, 1035 (Pa. Super.
1986).
In the instant case, the record is clear that Wilson did not make an
oral motion pursuant to Rule 704, but rather the trial court acted sua sponte
after learning that C.J. did not appear for the final PFA hearing. See
generally N.T., 9/20/2018. Therefore, Rule 704 offers no support to the
trial court’s decision to vacate the guilty verdict.
We observe that a trial court has some ability to modify or rescind an
order sua sponte pursuant to 42 Pa. C.S. § 5505. That statute permits a
court to modify or rescind any order within 30 days after its entry, so long as
an appeal from the order had not been permitted or taken. 42 Pa. C.S. §
5505. Section 5505, however, prohibits a court from modifying or
rescinding an order where “otherwise provided or prescribed by law.” Id.
This Court has determined that this language prohibits a trial judge from
reconsidering the facts sua sponte post-verdict. Parker, 451 A.2d at 770.
In Parker, the trial court sua sponte entered an order stating that
subsequent to the verdict it had rendered after a bench trial, it had
reconsidered the facts, and decided it had reasonable doubts about Parker’s
- 15 -
J-S09043-19
guilt. In considering whether this was permissible on appeal, our Court
noted that a trial judge has no more authority over a verdict in a non-jury
trial than the judge does over a jury verdict. Id. In either situation, “the
authority of a trial judge following the recording of a verdict … is limited to
consideration of post-trial motions in arrest of judgment or the granting of a
new trial.”5 Id. This Court pointed out that “[h]ad defendant moved for an
arrest of judgment, the trial court would have been required to view the
evidence in the light most favorable to the Commonwealth as the verdict
winner and could not have altered the verdict[] based upon a
redetermination of credibility or a re-evaluation of the evidence.” Id. Thus,
once the verdict was recorded, the trial court could not on its own reconsider
or reweigh the evidence to change its verdict. Id. Since the trial court in
Parker expressly reconsidered the facts sua sponte, it exceeded its
authority, and this Court remanded for reinstatement of the guilty verdict.
5 At the time Parker was decided, Pa.R.Crim.P. 1124 governed challenges to
the sufficiency of the evidence and used terms such as demurrer and motion
in arrest of judgment. Rule 1124 was later revised to “eliminate[] the use of
the terms ‘demurrer’ and ‘motion in arrest of judgment.’” Feathers, 660
A.2d at 92. In their place, the rule used “‘motion for judgment of acquittal’”
in order to “standardize the terminology used for challenges to the
sufficiency of the evidence at all stages of the proceeding, consistent[] with
the practice in a majority of the states, as well as under the Federal Rules of
Criminal Procedure.” Id. Rule 1124 was renumbered as Rule 606 and
amended effective April 1, 2001. Note to Pa.R.Crim.P. 606. Rule 606
retains the term “motion for judgment of acquittal.” Pa.R.Crim.P. 606.
- 16 -
J-S09043-19
More recently, this Court considered in Robinson whether a trial court
may change a verdict sua sponte. In that case, the trial court had found
Robinson guilty of theft by unlawful taking following a bench trial. It
sentenced Robinson to 18 months of probation and deferred the issue of
restitution to a future hearing. At the restitution hearing, the trial court sua
sponte vacated Robinson’s judgment of sentence and entered a verdict of
not guilty, stating that “it had ‘failed to give due consideration to the weight
of character evidence.’” Robinson, 33 A.3d at 91 (record citation omitted).
On appeal, Robinson insisted that the trial court had the authority to
change the verdict sua sponte because the timeframe for filing post-trial
motions and an appeal had not yet expired. This Court disagreed, citing to,
inter alia, Parker. 33 A.3d at 92-94. It further explained that
a post-verdict court may not reweigh the evidence and change
its mind as the trial court did herein. Although a post-verdict
judge may question a verdict, his discretionary powers are
limited to a determination of whether the evidence was sufficient
to uphold the original verdict, and he may not alter the original
verdict and substitute a new one. The trial court’s verdict must
be accorded the same legal effect as a jury verdict. Post-trial,
the court cannot re-deliberate as it is no longer the fact finder.
Just as jurors are not permitted to testify as to the mental
processes that led to their verdict, so is the trial court precluded
from testifying as to its flawed thought process as a fact finder.
Robinson, 33 A.3d at 94. Accordingly, this Court reversed the order
changing the verdict, remanded for reinstatement of the original guilty
verdict, and remanded for a hearing to complete the sentencing.
- 17 -
J-S09043-19
In the instant case, despite the trial court’s attempt to couch its
decision as a permissible exercise of its authority to rule on the sufficiency of
the evidence, it is clear that based on Parker and Robinson, what the trial
court really did was to re-evaluate the evidence sua sponte long after its role
as factfinder had ended, based upon its assumption that C.J. was
manipulating the system.
The elements of ICC are straightforward: a sufficiently definite, clear,
and specific order; notice of the order; a volitional act; and wrongful intent.
Brumbaugh, 932 A.2d at 111. In contempt matters, “wrongful intent can
be imputed by virtue of the substantial certainty that [one’s actions would
place one] in contact with [PFA petitioner] in violation of the PFA Order.”
Id. (finding evidentiary support for possession of wrongful intent where the
contemnor, knowing that he was under a PFA order prohibiting contact,
accepted the PFA petitioner’s invitation to attend a party with her);
Commonwealth v. Lambert, 147 A.3d 1221, 1227 (Pa. Super. 2016)
(finding wrongful intent satisfied by Facebook posts indirectly referencing the
petitioner the day following the entry of the PFA order).
As the trial court recognized originally, Wilson plainly admitted
contacting C.J. shortly after being served with the PFA order. N.T.,
7/23/2018, at 16-17. The evidence presented at the ICC hearing does not
support the trial court’s later finding that Wilson contacted C.J. due to his
belief that C.J. was attempting to manipulate the PFA system. In his own
- 18 -
J-S09043-19
words, Wilson wanted to work things out with C.J. to prevent her from
taking the boat. Id.
Even assuming arguendo that Wilson believed C.J. was attempting to
be manipulative, Wilson’s perception of C.J.’s motives simply does not
negate his plain intent to violate the order. For purposes of contempt, it is
the actions of the defendant that matter, not the actions of the PFA
petitioner. Brumbaugh, 932 A.2d at 111. The actions of Wilson
demonstrated his intent. It is undisputed that Wilson knew that the order
prohibited him from contacting C.J., but he ignored the order and called her
almost immediately. Furthermore, he used a blocked number6 and
screamed profanities at her. Although the trial court later discounted the
possibility that Wilson intended to violate the PFA order based upon the
proximity of the violation to service of the PFA, this only highlights Wilson’s
wrongful intent: he was told he could not contact her but immediately did it
anyway. See Lambert, 147 A.3d at 1227.
Notwithstanding the trial court’s statement otherwise in its Rule
1925(a) opinion, the trial court was or should have been aware that a final
6 Specifically, C.J. testified that because she has Wilson’s cell phone number
saved in her phone, ordinarily her phone would identify the call as coming
from Wilson’s cell phone. N.T., 7/23/2018, at 13. However, on this
occasion, C.J. was unable to identify the source of the call because the call
came from an “unknown or blocked” number, suggesting that some
mechanism was used to hide the identity of the caller from C.J. until she
answered. Id.
- 19 -
J-S09043-19
PFA had never been entered in the matter because Wilson had informed the
trial court at the ICC hearing that he was not subject to a current PFA. See
N.T., 7/23/2018, at 7. However, what matters is not the whether a PFA
order was in effect at the time of the contempt hearing, but whether a valid
PFA order was in effect at the time of the alleged contempt. Stated another
way, the outcome of the final PFA hearing has no bearing on whether there
was a valid order prohibiting contact in effect at the time that Wilson called
C.J. For the purpose of contempt, an emergency PFA order prohibiting
contact has the same validity as a final PFA order prohibiting contact. See
23 Pa.C.S. § 6110(a) (providing authority to hearing officer to grant
emergency relief in accordance with section 6108(a)(6) (prohibiting
defendant from having any contact with the plaintiff)).
The tenor of the trial court’s opinion suggests that what prompted the
trial court to re-evaluate the evidence was its disapproval of C.J.’s decision
not to appear for the final PFA hearing. Despite an assumption by the trial
judge that C.J. did not appear at the final PFA hearing because she had
acted manipulatively in obtaining the emergency PFA order, there is
absolutely no evidence in the record supporting the trial court’s assumption.
Nor is there evidence in the record explaining why C.J. did not appear at the
final hearing. The only information in the record about the current relations
of Wilson and C.J. is a bald unsworn assertion by Wilson that C.J. and Wilson
had resumed their relationship and C.J. wished to drop the matter. Even if
- 20 -
J-S09043-19
that were true, there is no support in the record for the trial court’s
proclamation that Wilson and C.J. “reside in harmony.” Trial Court Opinion,
11/6/2018, at 5. In fact, to the extent the record indicates anything at all, it
suggests that the opposite might be true, considering that C.J.’s PFA petition
details a history of abuse, see PFA Petition, 6/11/2018, at 1-2, and,
according to the Commonwealth, Wilson had pending charges of conspiracy
for obstruction of justice and witness intimidation based upon an alleged
attempt to prevent C.J. and their son from testifying in the assault matter.
It is not uncommon for victims of intimate partner violence to remain with or
return to their abusers for a myriad of complicated reasons, such as a dire
financial situation; a need for housing, help with co-parenting their children,
or assistance with a disability; fear of escalating violence or losing their
children; religious or cultural beliefs; and/or distorted thinking and
unhealthy reliance upon the abuser created by past abuse. See e.g., Why
Do Victims Stay?, National Coalition Against Domestic Violence,
https://ncadv.org/why-do-victims-stay. Ultimately, even if C.J. and Wilson
had resumed their relationship, whether harmoniously or otherwise, their
relationship at the time of the sentencing hearing has no bearing upon
Wilson’s plain intent to violate the emergency PFA order months before.
Accordingly, based upon the trial court’s impermissible sua sponte re-
evaluation of the evidence, we reverse the September 20, 2018 order, and
remand for reinstatement of the original guilty judgment and for sentencing.
- 21 -
J-S09043-19
Order reversed. Case remanded for reinstatement of guilty judgment
and sentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2020
- 22 -