J-A19026- 14

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.
ROBERT WAYNE TAYLOR, II,
Appellant No. 1723 WDA 2013

Appeal from the Judgment of Sentence Entered Septemb er 24 , 2013

In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP

- 03

- MD -0000212-2013

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.
ROBERT W. TAYLOR, II,
Appellant No. 1724 WDA 2013

Appeal from the Judgment of Sentence Entered Septemb er 24 , 2013

In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP

- 03

- MD -0000197-2013
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J. *
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 26, 2014
Appellant, Robert Wayne Taylor, II, appeals from th e September 24,
2013 judgment of sentence of 90 days’ incarceration and $300 in fines,

* Former Justice specially assigned to the Superior Court

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imposed after he was convicted following a non-jury tri al of two counts of
indirect criminal contempt (ICC). After careful revie w, we reverse. The trial court summarized the facts and procedural h istory of this

case as follows:

Joy N. Taylor, now Joy N. Kochman [(“Ms. Kochman”)], initiated a protection from abuse action against [Appel lant] on or about September 26, 2011. A final protection from abuse order was entered on May 18, 2012 (the “PFA Order”). The PFA Order provides that [Appellant] “sha ll not contact [Ms. Kochman], or any other person protected under this order, by telephone or by any other means, including through third persons.” The only exception to the communication restriction in the PFA Order is found in paragraph 5, which provides that “the parties may have text message contact for the purposes of custody scheduling only, without said contact constituting violation of thi s order. All other terms of this order remain in effect during such contact.” On May 22, 2013, the parties entered int o a separate custody consent order, paragraph 6 of which provides that “the parties may have text communication with one another for legitimate issues involving the children.”
On June 21, 2013, [Ms. Kochman] and [Appellant] met a t the Sheetz convenience store in Kittanning, Pennsylvan ia for a custody exchange of the parties’ two children. The children exited Ms. Ko chman’s car and walked to [Appellant’s] vehicle. The parties were parked approximately four vehicle[] widths apart. [Appellan t] then asked one of the children to ask Ms. Kochman whether sh e had spoken with her lawyer about matters concerning the sale of the parties’ former marital residence. The child went back to Ms. Kochman’s car, spoke with her about the matter, then returned to [Appellant’s] vehicle. Ms. Kochman then exited her vehicle and began speaking to [Appellant] about the house. After the pa rties’ exchange, [Appellant] went into the store with the children. B ased on his indirect communication with Ms. Kochman, through theJ-A19026- 14

3 child, [Appellant] was charged with [ICC] on or about July 2, 2013 (No. MD-0000197-2013).
On or about July 13, 2013, [Appellant] sent Ms. Kochma n a text message, again with regard to the marital residen ce. It read[] as follows:
I also sent an email to your lawyer today about the house on 4 th Avenue. The bank said if you get paperwork done I told Cynthia about they will take your name off. So if you could please talk to her about it, me and the girls can start moving into it. Thanks. I will tell them. They said they love you.
Based on the contents of the text message, [Appellant] again was charged with [ICC] on or about July 16, 20 13 (No. MD- 000212 -2013).
The [trial court] conducted a bench trial on both counts of indirect criminal contempt on July 29, 2013. At the t rial, the parties generally did not dispute what occurred at the Sheetz store on June 21, 2013 or the contents of the t ext message sent by [Appellant] on July 13, 2013. The [tr ial court] ultimately found that the Commonwealth had pr oven beyond a reasonable doubt that [Appellant] had viola ted the PFA Order on both counts. The [trial court] concluded t hat the subject of both communications was not a legitimate concern regarding the children but a legal matter rega rding the disposition of real estate involved in the partie s’ divorce proceeding.
[On September 24, 2013, t]he [trial court] sentenced [Appellant] to 90 days’ incarceration in the Armstrong County Jail, together with a $300.00 fine on both co unts, the sentences to run concurrently. [Appellant] filed no tices of appeal and concise statements of [errors] complained o f on appeal at both case numbers on October 24, 2013 and November 18, 2013. Trial Court Opinion, 12/13/13, at 1-4 (unnecessary capi talization and
footnote omitted).
On appeal, Appellant presents the following two issues for our review:J-A19026- 14

4 I. Did the trial court err and/or abuse its discretion in failing to consider the custody modification entered May 22, 2013 prior to the filing of the subject indi rect criminal contempt charge[s] which allowed for text communication for any legitimate issue involving the children?

II. Did the trial court err and/or abuse its discretion in sentencing [Appellant] to a [concurrent] sentence [of] three months [of] incarceration and fines of $300.00? Appellant’s Brief at viii (unnece ssary capitalization omitted).
In his first issue, Appellant essentially challenges th e sufficiency of the

evidence to sustain his convictions of ICC. Our standard o f review of such

claims is well-settled:

In reviewing the sufficiency of the evidence, we view a ll the evidence admitted at trial in the light most favorabl e to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt. This standard is equally applicable to cases where the eviden ce is circumstantial rather than direct so long as the combination of the evidence links the accused to the cri me beyond a reasonable doubt. Although a conviction must b e based on more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathemati cal certainty. Moreover, when reviewing the sufficiency of the evidence, this Court may not substitute its judgment fo r that of the fact-finder; if the record contains support for the convictions they may not be disturbed.
Commonwealth v. Stokes , 78 A.3d 644, 649 (Pa. Super. 2013) (internal
citations, quotations, and brackets omitted).
Pursuant to 23 Pa.C.S. § 6114,

[w]here the police, sheriff or the plaintiff have fil ed charges of indirect criminal contempt against a defendant forJ-A19026- 14

5 violation of a protection order issued under this chapte r, a foreign protection order or a court-approved consent agreement, the court may hold the defendant in indir ect criminal contempt and punish the defendant in accordance with law. 23 Pa.C.S. § 6114(a). “Where a PFA order is involved , an [ICC] charge is
designed to seek punishment for violation of the prot ective order.”

Commonwealth v. Jackson , 10 A.3d 341, 346 (Pa. Super. 2010) (citation
omitted). To establish ICC, the Commonwealth must pro ve:

1) the order was sufficiently definite, clear, and spe cific 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 volition al; and 4) the contemnor must have acted with wrongful inten t.
Id. (citation omitted).
On appeal, Appellant solely challenges the sufficiency of the evidence
to prove the ‘wrongful intent’ element of ICC. Ess entially, Appellant
maintains that his June 21, 2013 communication with Ms. Kochman at the
Sheetz store, and his July 13, 2013 text message to her , were both for the
purpose of discussing legitimate issues involving their ch ildren’s housing.
The trial court, however, found that Appellant’s inte nt “was not to discuss
matters involving the children’s well -being or custody schedule, but instead
was to discuss with Ms. Kochman the outstanding issues regardi ng their
jointly- held real property and to impress upon her [Appellant ’s] desire to
come to a quick resolution.” TCO at 6. Thus, the court found the ‘wrongful

intent’ element satisfied.J-A19026- 14

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Even accepting the court’s interpretation of Appellant ’s intent in
communicating with Ms. Kochman, we disagree with its leg al determination
that his intent was wrongful. In Appellant’s July 13, 2013 t ext message to Ms. Kochman, Appellant stated: “So if you could please ta lk to [your
attorney] about it, me and the girls can start moving into [the house] .”
N.T., 7/29/13, at 6 (emphasis added). In describing A ppellant’s
communication with her at the Sheetz store, Ms. Kochman testified that
Appellant was “asking about what was going on with the other house [the
parties’ jointly owned] and that [Appellant] wanted to move into it.” Id. at 10. It was undisputed at trial that the “jointly -held real property ” about
which Appellant was communicating with Ms. Kochman was a h ome that
Appellant desired to live in with the couple’s childre n. Appellant stated at
trial that he was trying to move into that residence, which was closer to Ms.
Kochman’s home, so the children would be “closer to their school” and “have
easier access” to Appellant. Id. at 17. Appellant testified that the bank was
“going to foreclose on the house” unless Ms. Kochman timel y signed
paperwork permitting Appellant to refinance the mort gage on the home. Id.
at 16. Appellant attempted to communicate with Ms. Ko chman’s attorney to
obtain Ms. Kochman’s signature, but did not receive a r esponse. Id.
Considering the context surrounding Appellant’s communica tions with
Ms. Kochman, we cannot agree with the court that his int ent was wrongful.
Instead, Appellant’s purpose in contacting with Ms. Koch man was to resolve
a legitimate issue involving where the couple’s childr en would be living whenJ-A19026- 14

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in Appellant’s custody. There is also no indication i n the record that
Appellant communicated with Ms. Kochman for the purpose of abusing,
stalking, harassing, or threatening her, as prohibited by the PFA petition. 1
Accordingly, the evidence was insufficient to prove that Appellant possessed
wrongful intent in communicating with Ms. Kochman. Th us, we reverse Appellant’s convictions for two counts of ICC. In ligh t of this disposition, we
need not address Appellant’s second issue challenging hi s sentence.
Judgment of sentence reversed. Jurisdiction relinqui shed.
Justice Fitzgerald joins in the memorandum.
Judge Olson files a dissenting memorandum.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 9/26/2014

1 See Commonwealth v. Walsh , 36 A.3d 613, 619 (Pa. Super. 2012) (indicating that to prove ICC of a PFA order that stated the appellant “shall not abuse, harass, stalk or threaten any of the above p ersons,” and prohibited the appellant from contacting the petition er, the Commonwealth was required to prove “that he knowingly and willfull y made threatening or harassing statements” to the petitioner); Commonwealth v. Haigh , 874 A.2d 1174, 1177 (Pa. Super. 2005) (reversing ICC conv iction based on the defendant’s communicating with his wife in violation of a PFA order where, inter alia , the defendant “did not bel ieve that he was threatening [his wife], and neither she nor any one [ sic ] else in the courtroom heard [the defendant] threaten [his wife] or otherwise make any threatening movements or gestures toward her”).