Com. v. Beahan, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES BEAHAN :
:
Appellant : No. 748 MDA 2021
Appeal from the Order Entered May 5, 2021
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): 20-40835,
CP-35-MD-0000136-2021
BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED APRIL 20, 2022
James Beahan appeals from his judgment of sentence for indirect
criminal contempt for violating a protection from abuse (“PFA”) order. We
issued a rule to show cause why Beahan’s appeal should not be quashed
pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (adopting
a bright-line rule that separate notices of appeal must be filed when a single
order resolves issues arising on more than one lower court docket), overruled
in part by Commonwealth v. Young, 265 A.3d 465 (Pa. December 21,
2021). While we find no need to quash the appeal pursuant to Walker, we
conclude Beahan has waived the issues he attempts to raise on appeal. We
therefore affirm.
The trial court issued a final PFA order against Beahan on December 7,
2020. The PFA order generally prohibited Beahan from having contact with his
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estranged wife, Danielle Beahan. It specifically prohibited him from, among
other things, stalking, harassing, or threatening Danielle or his two minor
children with Danielle, J.B. and P.B. The PFA order did allow Beahan to have
contact and supervised visits with J.B. and P.B, as well as to text or email
Danielle about matters related to the visitation. Beahan did not appeal the PFA
order, which was set to expire on December 7, 2023.
In April of 2021, Beahan was arrested and charged with indirect criminal
contempt for violating the PFA order. The trial court held a hearing on the
contempt charge on May 5, 2021, during which both Danielle and Beahan
testified. Danielle testified that on April 13, 2021, she and her oldest daughter
were on their way to pick up J.B. and P.B. from daycare when Danielle got a
text from Beahan saying he had already picked the children up. See N.T.,
5/5/21, at 14. Danielle testified that it was not Beahan’s period of custody, 1
and nothing in the PFA order allowed Beahan to pick the kids up from daycare
during her period of custody without her permission. See id. at 14, 16.
Danielle testified that she and her daughter then drove to Beahan’s
house. When they arrived, Danielle recounted that P.B. came out and got into
her car. See id. at 17. Beahan, who was standing on his porch, told Danielle
he would be taking J.B. to baseball practice that evening, to which Danielle
replied that it was her day and she would take J.B. to practice if he had it.
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1 Apparently, the restrictions requiring Beahan’s visits to be supervised were
later lifted. See N.T., 5/5/21, at 9-10.
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See id. She instructed Beahan to send J.B. out of the house. See id. Danielle
stated that she and Beahan began to argue about J.B. attending baseball
practice for a baseball team on which J.B. no longer played. See id. at 18. At
that point, Danielle testified, J.B. came out of the house and stood on the
porch looking “scared.” Id. at 18. J.B. walked down the porch steps and got
into his mother’s car and shut the door. See id.
According to Danielle, Beahan then jumped over the porch railing, went
to the car, and tried to open the car door. See id. at 18-19. J.B. began to cry.
See id. at 19. Danielle recounted that when Beahan couldn’t open the locked
car door, he began to take a video with his phone, while repeatedly asking,
“What did mommy do to you? Why are you crying?” Id. at 19. Danielle’s oldest
daughter called the police.2
Beahan testified he had previously picked the children up after school
before doing so on April 13, 2021. See id. at 60-61. On that day, he testified
he texted Danielle to tell her he was at the daycare to pick the kids up and
Danielle told him that was fine. See id. at 45. When Danielle came to his
house to pick the children up, Beahan asserted that while he did leave the
porch, he did not think he jumped over the porch railing. See id. at 52. He
also stated he did not try to open the car door, see id. at 79, that J.B. was
____________________________________________
2 Danielle’s oldest daughter also testified at the hearing, essentially
corroborating Danielle’s testimony about what occurred at Beahan’s house on
April 13, 2021.
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emotional but not crying, see id. at 77, and he only videotaped the incident
so Danielle didn’t “change the story,” id. at 76.
In an order dated May 5, 2021, and entered May 6, 2021, the trial court
found Beahan guilty of indirect criminal contempt for violating the PFA order
and sentenced him to six months of probation. Beahan did not file a post-
sentence motion.
Beahan did file a notice of appeal to this Court. In his notice of appeal,
Beahan listed both the PFA order’s civil docket number and the indirect
criminal contempt order’s criminal docket number in the caption. The notice
of appeal, however, specifically stated that Beahan was appealing the trial
court’s order, dated May 5, 2021, finding him guilty of indirect criminal
contempt. Because Beahan had listed two docket numbers in a single notice
of appeal, this Court issued a rule to show cause why this Court should not
quash the appeal pursuant to Walker.
Counsel for Beahan filed a response to the rule to show cause. In that
response, counsel stated that although he had inadvertently listed the two
lower court docket numbers on the single notice of appeal, he was aware that
the deadline to appeal the PFA order had long passed and his intent was only
to appeal the May 5, 2021 order finding Beahan guilty of indirect criminal
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contempt.3 We agree with counsel that, under these circumstances, we do not
need to quash his appeal. See Commonwealth v. Rebecca Johnson, 236
A.3d 63 (Pa. Super. 2020) (en banc) (holding that an appellant complies with
Walker when she files a separate notice of appeal for each lower court docket
number she wishes to appeal, even if each one of the separate notice of
appeals contains multiple docket numbers).4
After Beahan filed his notice of appeal, the trial court ordered him to file
a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. Beahan
complied and raised the following issues in his statement:
a. The trial court erred in finding the appellant guilty of indirect
criminal contempt;
b. The trial court erred in finding that the alleged contact violated
the terms of the PFA;
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3 Curiously, Beahan’s response seems to confuse the docket number that is
associated with his appeal from the order dated May 5, 2021. He claimed his
only intent was to appeal that order, and yet, he followed that assertion with
a contention that he was therefore only filing an appeal from the PFA civil
docket number. This assertion aside, it is clear that the appeal deadline period
for the PFA order has passed and that Beahan’s intent is to appeal the order
dated May 5, 2021, which found him guilty of indirect criminal contempt under
the criminal docket number.
4 We recognize that our Supreme Court recently overruled Walker in part in
Young. Young held that “[Pa.R.A.P.] 341 requires that when a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed from that order at each docket; but, where a timely appeal is
erroneously filed at only one docket, [Pa.R.A.P.] 902 permits the appellate
court, in its discretion, to allow correction of the error, where appropriate.”
265 A.3d at 477. We do not need to take this step here, given that, as
explained above, the notice of appeal currently of record allows for the appeal
of the order dated May 5, 2021.
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c. The trial court erred in giving too much weight to the
Appellee’s witnesses[;]
d. The trial court erred in failing to give proper weight to the
appellant's testimony.
Statement of Errors Complained of on a PFA Violation Conviction, 6/29/21,
(single page).
Beahan raises the same issues in his appellate brief. His arguments in
support of those issues are difficult to follow, primarily because Beahan
improperly intertwines claims that the evidence was insufficient to support the
indirect criminal contempt verdict with claims that such a verdict was against
the weight of the evidence. This is highlighted by his summary of the
argument, which reads in its entirety:
The weight of the evidence does not support a finding of indirect criminal
contempt. In order to be found guilty of indirect criminal contempt the
following four elements must be supported by the weight of the
evidence: (1) the court’s temporary [PFA] order and its subsequent
agreed upon order dated December 2020 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 prohibited; (2) the contemnor
must have 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.
Appellant’s Brief at 8.
The Commonwealth also recognizes that Beahan’s issues improperly
conflate challenges to the sufficiency of the evidence with challenges to the
weight of the evidence. See Commonwealth’s Brief at 9, 15. In doing so, the
Commonwealth reinforces that sufficiency claims are necessarily distinct from
weight claims: sufficiency claims challenge whether the Commonwealth
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established all of the elements of an offense beyond a reasonable doubt,
whereas weight claims concede the evidence is sufficient but aver the
evidence was so weighted in favor of acquittal that a new trial is warranted.
See Commonwealth’s Brief at 9.
The Commonwealth asserts that to the extent Beahan is raising a weight
claim, it is waived. In support, the Commonwealth points out that Beahan
never raised a weight claim with the trial court in a motion for a new trial, as
he was required to do to preserve such a claim for appeal. See Pa.R.Crim.P.
607(A) (stating that a claim that the verdict is against the weight of the
evidence must be raised with the trial court in a motion for a new trial orally
or by written motion before sentencing, or in a post-sentence motion). We
agree. Beahan does not point to any place in the record where he preserved
a weight claim, and our own review of the record does not reveal one.
Accordingly, any attempt Beahan has made to raise a weight claim offers him
no basis for relief as any such claim has been waived.
The Commonwealth also argues that, to the extent Beahan is raising a
sufficiency claim, it is also waived as he did not clearly identify in his 1925(b)
statement what elements of indirect criminal contempt he believes the
Commonwealth failed to prove beyond a reasonable doubt. Again, we agree.
See Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017)
(stating that in order to preserve a sufficiency claim on appeal, an appellant
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must specify in the 1925(b) statement the element or elements upon which
the evidence was insufficient).
As the Commonwealth observes, Beahan’s arguments on appeal
exemplify why it is imperative for an appellant to present with sufficient
specificity in his 1925(b) statement what elements he believes were not
sufficiently proven at trial so as to allow the trial court the ability to address
those arguments in its 1925(a) opinion. In his brief, Beahan asserts there was
insufficient evidence to sustain his conviction for indirect criminal contempt
because the PFA order was not clear. Specifically, he contends the PFA was
contradictory in its terms and was not clear because the trial court did not use
standardized forms for his PFA order. The trial court, however, did not address
either of these contentions in its 1925(a) opinion because the 1925(b)
statement did not specify, directly or inferentially, either of these arguments.
Beahan also asserts that “the third and fourth elements [to make out a
case for indirect criminal contempt], that the act consitut[ing] the violation
must have been volitional and willful intent, is clearly not supported by the
weight of the evidence.” Appellant’s Brief at 14. Again, to the extent Beahan
is raising this as a weight claim, it is waived for failure to timely present such
a claim to the trial court. It is also waived to the extent Beahan is arguing the
evidence was insufficient to support his indirect criminal contempt conviction
because there was insufficient evidence to support a finding that Beahan
committed a volitional act. He did not specifically challenge this element in his
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1925(b) statement as one that the Commonwealth failed to sufficiently prove
at the hearing, and the trial court therefore did not address it. The claim is
waived for that reason as well. See Roche, 153 A.3d at 1072.
Beahan also argues the trial court erroneously found that he “harassed”
or “stalked” Danielle. In support, Beahan recites the elements for the offenses
of stalking and harassment, and asserts the evidence was insufficient to
support those elements. Of course, as the Commonwealth observes, Beahan
was not convicted of either stalking or harassment, but rather, was convicted
of indirect criminal contempt for violating the PFA order prohibiting him from
stalking or harassing Danielle. His argument simply misses the mark. Even so,
any argument that the evidence was insufficient to support the trial court’s
finding that he harassed Danielle is waived, as his 1925(b) statement does
not raise that issue with sufficient specificity.
Beahan’s last two issues, as framed in his statement of questions
involved, challenge the weight the trial court accorded to the witnesses’
testimony. Beahan’s argument section in support of those issues, however,
only cites cases addressing the sufficiency of the evidence. As such, he has
violated Pa.R.A.P. 2116 (providing that no question will be considered unless
it is stated in the statement of questions involved), and his issues are waived
for that reason. Any claim Beahan is attempting to make that the verdict was
against the weight of the witnesses’ testimony has also been waived pursuant
to Pa.R.Crim.P. 607(A). Despite his waiver of these issues, we add only that
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the trial court, sitting as fact-finder, was free to believe all, part or none of
the witnesses’ testimony. See Commonwealth v. Ramtahal, 33 A.3d 602,
607 (Pa. 2011).
While we find that Beahan has waived all of his issues, we note that,
although the trial court only had an overly-broad and vague 1925(b)
statement from which to write its 1925(a) opinion, it did generally explain its
reasons for finding the evidence sufficient to support an indirect criminal
contempt conviction. To that end, the court first noted that in order for the
Commonwealth to sustain a conviction for indirect criminal contempt for
violating a PFA order, it must prove: (1) the PFA order was definite, clear and
specific so as to leave no uncertainty of what conduct is prohibited; (2) the
contemnor had notice of the PFA order; (3) the act constituting the violation
of the PFA order was volitional; and (4) the contemnor acted with willful intent.
See Trial Court Opinion, 7/30/21, at 2 (unpaginated) (citing Commonwealth
v. Haigh, 874 A.2d 1174, 1177 (Pa. Super. 2005))
In finding the Commonwealth had proven these elements here, the trial
court initially observed the PFA order clearly prohibited Beahan from
harassing, stalking or attempting to threaten Danielle, and that Beahan
conceded he had notice of the PFA order. Despite Beahan’s notice of the PFA
order and what it prohibited, the court stated that:
when [Danielle] arrived at [Beahan’s] home to retrieve the
children during her period of custody, [Beahan] first withheld the
minor child, J.B., and when he eventually released the minor child,
J.B., to [Danielle], [Beahan] jumped over the banister of the
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home, began to film [Danielle], and persisted he would take the
minor child, J.B., to baseball practice.
Trial Court Opinion, 7/30/21, at 3 (unpaginated). The trial court then found
that this course of conduct, “failing to release [J.B.] to [Danielle] when she
stated she would take [J.B.] to baseball practice[,]... jump[ing] over the
banister at [Danielle], videotap[ing Danielle] and continu[ing] harassing
behavior after [Danielle] instructed [Beahan] she would take [J.B.] to baseball
practice” showed Beahan had violated the terms of the PFA by intentionally
harassing Danielle. Id. at 6 (unpaginated).
We see no abuse of discretion in the trial court’s determination that the
Commonwealth presented sufficient evidence for the court to find Beahan
guilty of contempt. See Haigh, 874 A.2d at 1176-77 (stating this Court will
only reverse a trial court’s contempt conviction when there has been a plain
abuse of discretion). Accordingly, even if we were to overlook Beahan’s waiver
of his claim that the evidence was insufficient to support his conviction for
indirect criminal contempt, we would find that the trial court did not err in
reaching the contrary conclusion. No relief is due.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
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