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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER ALLEN LEACH

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1596 WDA 2017 Appeal from the Judgment of Sentence September 29, 2017 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP

- 07

- MD

- 0001570

- 2017

BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J. MEMORANDUM BY OTT, J.: FILED JUNE 27, 2018 Christopher Allen Leach appeals from the judgment of sentenc e imposed on September 29, 2017 , in the Court o f Common Pleas of Blair County. Following a non - jury trial, the trial cour t found Leach guilty of indirect criminal contempt from a Protection From Abuse (PFA) order 1 and sentenced him to pay the statutorily imposed costs of prosecution and a fine o f three hundred dollars ($300). The sole issue raised by Leach in this appeal is a challenge to the sufficien cy of the evidence. Based upon the following, we conclude the evidence was insufficient to sustain Leach’s conviction for indirect criminal contempt, and, accordingly, we vacate the judgment of sentence.

_________________ __________ ______ ____ _______ 1 See 23 Pa.C.S.A. § 6114(a).J

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The facts underlying L each’s conviction are as follows. On Friday September 8, 2017, Danielle Dupuis obtai ned an E mergency PFA Order (“Order”) against Leach at an ex parte hearing before Magisterial District Judge Steven D. Jackson

. See Order Granting Emergency Relief from Abuse, 9/8/2017, at 1. This action was a result of Leach’s September 6, 2017 , arrest for aggravated assault 2 and related charges, of which Dupuis was the victim. See N.T., 10/27/17, at 4. The Order prohibited Leach from contacting her, and evicted him from their shared residence. See Order Granting Emergency
Re lief from Abuse, 9/8/2017, at 1. On the evening of Friday, September 8 , 2017, Leach posted bail for the above ch arges , and at 8:00 PM that same day, Officer Fre d Wasser served the Order on Leach at the prohibited re sidence. See N.T., 10/27/2017, at 32

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T he Order stated, in relevant part: “These orders expire at the end of the next business day the Court of Commo n Pleas deems itself available. These orders will be immediately certified to the Court of Common Pleas, which has the effect of comme ncing proceedings against you...” Order Granting Emergency Rel ief from Abuse, 9/8/2017, at 1. Over that weekend, Leach cl aims he called the PFA office and the S heriff, but neither office could confi rm the Order’s expiration date. See N.T., 10/27/2017, at 34

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_________________ __________ ______ ____ _______ 2 See 18 Pa.C.S.A. § 2702.J

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The “next business day” after the issuance of the Order was Monday , September 11, 2017. 3 Id. at 47. Thereafter, o n September 12, 2017, Leach returned to the prohibited residence to retrieve his belongings with his sister and her boyfriend. See N.T., 10/27/2017, at 24

- 25. Dupu is was not home at the time , and when Leach arrived, the locks were changed and the windo w

was covered with a wood panel

. See i d. at 17

- 18. His sister then ca lled Dupuis, alerting her to Leach’s presence at the residence and causing her to call the police. See i d. at 16

- 17. Officer Joseph Detwiler, who responded to Dupuis’ call, testified that Leach was seen exiting the residence. See i d. at 24. Additionally, a glass panel on the door of the residence had been broken and the wood panel covering the window had been pried off. However, n one of D upuis’ belongings were missing. See id. at 20. Upon questioning by Officer Detwiler, Leach initially denied any knowledge of the PFA

. See i d. at 25. After c onfirming the existence of the Order , the officer arrested Leach. See i d. at 26

- 27. The case proceeded to a hearing conducted on September 29, 2017, at the conclusion of which the trial court found Leach guilty of indirect criminal contempt , and sentenced him to pay the statutorily imposed costs of

_________________ __________ ______ ____ _______ 3 While the Commonwealth suggests an extended T emporary PFA was granted that day , there is nothing in the certified r ecord to confirm this or to demonstrate that Leach was properly served with a new o rder

. See Commonwealth’s Brief at 8. The only evidence of the existence of a Temporary Order is contained in a do cket entry appended to the Commonwealth’s brief. See id. , Exhibit 1.J

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prosecution and a th ree hundred dollar ($300) fine. Leach filed this timely appeal a nd complied with the trial court’s order to submit a Pa.R.A.P. 1925(b)
concise statement of matters complained of on appeal

. In his sole issue on appeal, Leach challenges the sufficiency of the evidence supporting his conviction for indirect criminal contempt. See Leach’s Brief at 8. Our standard of review of a claim challenging the sufficiency of the evidence is as follows:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence adm itted 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 and substitut e 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. A ny doubts regarding a defendant’ s guilt may be resolved by the fact

- finder unless t he 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 evide nce produced, is free to believe all, part or none of the evidence. Commonwealth v. Brumbaugh , 932 A.2d 108 , 109

- 1 1 0 (Pa. Super. 2007)

. “When reviewing a contempt conviction ... we are confined to a determinationJ

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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. Moreover,

A charge of indirect criminal contempt consists of a claim that a violation of an Order or Decree of court occurred outs ide the presence of the court

. Where a PFA order is involved, an indirect criminal contempt charge is designed to seek punishment for v iolation of the protective order... To establish indirect criminal contempt, 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 cont emnor 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. Id. at 110 (citations and quotation marks omitted). Leach argues the Emergency PFA was not “definite, clear, and specific ” because the expiration date of the Order was ambiguous. 4 Leach’s Brief at 9. Leach point s out that the Order stated its expiration would occur “ the end of the next business day the Court of Common Pleas deems itself available ,” which he believed to be September 11, 2017, the day before his entrance onto the property. Id. at 5

- 8, quoting Order Granting Emergency Re lief from Abuse, 9/8/2017, at 1

. Both the Commonwealth and the trial court agree that the Order expired

on Monday, September 11, 2017

. See Commonwealth’s Brief at 7; Trial C ourt

_________________ __________ ______ ____ _______ 4 Leach does not dispute that the conduct itself described by the Order, that he was not to enter the residence, was unambiguous.J

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Opinion, 11/28/2017, at 3. The cr ux of the trial court’s ruling is that the language in the Order, which states the dispute would be “ immediately certified to the Court of Common Pleas ,” should have put Leach on notice that the Emergency PFA would be extended into a Temporary PFA and would be in eff ect past its stated expiration. Trial Cou rt Opinion, 11/28/2017, at 3

- 4. The trial court also found that Leach’s interaction with the police, during which he lied and stated that he ha d no knowledge of any PFA, establishes he knew a
PFA could be i n effect on September 12, 2017. See i d. at 4. Moreover, the court noted Leach’s calls to the PFA Office and Sheriff provided additional support for its conclusion Leach was aware of the possibility that hi s conduct could be a violation. See id. at 3

- 4. However, our review of the Order in question and relevant statutory sections at issue reveals it was not definite that a Temporary PFA would be grante d to extend the existing Emergency Order. Indeed, t o extend an Emergency PFA, the Court of Common Pleas must hold an ex parte he aring to determine if an extended Temporary PFA is “necessary to protect th e plaintiff or minor children.” 23 Pa.C.S.A. § 6107(b). Petitions for Temporary Orders are not required to be granted

. See 23 Pa.C.S.A. § 6110(b) (stating that only “necessa ry” o rders will be continued ). Leach could not have known whether Dupuis’ petition for an extende d o rder would be granted or denied, and it was therefore unclear whether his entrance onto the property on September 12, 2017 , was prohibited

. Furthermore, t here is no evidence in the certified recordJ

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that the Order was extended

. Because of the language in the Emergency Order indicating that it would expire at the end of the “next business day,” and the lack of evidence concerning a replacement Order , we are constrained to conclude it was not certain Leach’s conduct was prohibited by the PFA

. Accordingly, w e agree with Leach that the Order was not “ sufficiently definite, clear , and specific ” as to its expiration date, and hence he was not on notice that his c onduct would be pr ohibited on September 12, 2017. Brumbaugh , supra , 932 A.2d at 110. Additionally, Leach argues he did not possess the requisite “wrongful
intent ” to violate the PFA. Leach ’s Brief at 9. “[W]rongful intent can be imputed by virtue of the substantial certainty ” that the defendant’s conduct would be “in violation of the PFA Order

. ” Brumbaugh , supra , 932 A.2d at
111. Trial courts must “ 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) (emphasis in original), appeal denied , 887 A.2d 1240 (Pa. 2005)

. Leach maintains that because he did not intend to threaten Dupuis or cause her harm, he did not possess wrongful intent. He contends he “only retrieved his belongings” and “Dup uis was 70 miles away and was not threatened in any way.” Leach’s Brief at 9. He relies on Haigh , supra , to show that his lack of intent to do harm was material

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In Haigh , a panel of this C ourt reversed a defendant’s conviction for indirect criminal contempt because the interaction between the defendant and his estranged wife, who had obtained a PFA against him, took place in a courtroom and was not threate ning. Haigh , supra , 874 A.2d at 1178. The defendant, who was shackled and escorted by a deputy, inquired ab out his wife’s health in court. See i d. at 1176. The wife testified that she did not f eel threatened by the exchange. See i d. This C ourt reasoned that the defendant did not possess wrongful intent because he did not “[ intend] to violate the final PFA order and because the infraction was both de minimis and

non - threatening .” Id. at 1178 (emphasis in original). Moreover, the panel noted, in a footnote, that the act did not fit the definition of indirect criminal contempt because it occurred in a courtroom. See id. at 1177 n.4. The Commonwealth insists the ruling in Haigh is limited to “the peculiar
circumstances of [that] case,” and is not appli c able outside of the courtroom. Commonwealth’s Brief at 9, quoting Haigh , 874 A.2d at 1178 . We agree. Furthermore, we note that in Brumbaugh , supra , a panel of this Court upheld a defendant’s conviction of indirect criminal contempt even though the purported victim did not object to the contact, and, in fact, invited the defendant to the party he attended, which led to the violation. See Brumbaugh , supra , 932 A.2d at 110

- 111. The panel concluded the defendant’s “ac t was clearly volitional, or knowingly made,” because he knewJ

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with “substantial certainty” that by attending the party he would be violating the PFA. Id. at 111. Alt hough Leach’s reliance on Haigh is misplaced, we agree that the evidence did not support a finding that he acted with wrongful intent. If the Emergency PFA had still been in effect, Leach’s entry onto the property would have been enough to establish wrongful intent, as in Brumbaugh

. H e does not dispute that his conduct was volitional or that his entrance on the property was prohibited under the terms of the PFA. Moreover , it is immaterial that he was merely there to retrieve his belongings or that he did not mean to harm or threaten D upuis

. However, as discussed above , the Emergency PFA had expired by the time Leach entered Dupuis’ residence , and there was no evidence presented that he knew the PFA had been extended. Because Leach did not know with “substantial certainty” tha t he was in violation of the PFA , we conclude he did not possess the requisite wrongful intent. Brumbaugh , supra , 932 A.2d at 111. Accordingly, because we conclude the evidence was insufficient to sustain Leach’s only conviction, we vacate the judgment of sentenc e. Judgment of sentence vacated. President Judge Gantman joins the memorandum. Judge Panella concurs in the result.

Judgment Entered.J

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Joseph D. Seletyn, Esq. Prothonotary

Date: 6/27/2018