J-A02042-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NICHOLAS BENJAMIN ORTIZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 574 MDA 2023

Appeal from the Judgment of Sentence Entered March 15, 2023

In the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-MD-0002911-2022

BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: MARCH 11, 2024

Nicholas Ortiz (“Ortiz”) appeals from the judgment of sentence following 

his conviction of indirect criminal contempt.1 Ortiz’s counsel (“Counsel”) has 

filed a petition to withdraw and an accompanying brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009). We affirm and grant Counsel’s petition to withdraw.

At trial, the Commonwealth introduced the following evidence. In 

September 2022, C.M. sought a protection from abuse order (“PFA”) against 

Ortiz, her former boyfriend. See N.T., 3/15/23, at 9-10. After a hearing, at 

which Ortiz appeared pro se, the court issued a three-year PFA barring Ortiz 

from any contact with C.M. See N.T., 3/15/23, at 10. 

____________________________________________

1 See 23 Pa.C.S.A. § 6114.
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Less than two months later, on November 7, 2022, C.M. received a 

series of calls and text messages from an unfamiliar phone number. See id.

at 15-16. C.M. testified she did not answer the calls for fear Ortiz was trying 

to contact her. See id at 14. She testified Ortiz previously contacted her via 

WhatsApp, an anonymous texting app.2 See id. Between 9:45 a.m. and 

10:00 a.m. that day, C.M. received a series of texts from a phone number she 

did not recognize but believed was a WhatsApp number. See N.T., 3/15/23, 

at 11. C.M. testified she received a text message that said, “I miss you.” She 

then testified:

I said, “who is this?” He said, “you know who this is.” And then I 

responded, “I actually don’t. Can you enlighten me?” Then he 

said, :I heard you have a new boyfriend,” and I responded, “I do.” 

Then [Ortiz] said, “After how long we were together it’s crazy how 

you found someone new. He doesn’t compare to what we had.” 

And I responded, “Nick, do not ever contact me again.”

See id. at 12 (quotation marks added, punctuation corrected, emphasis 

added). C.M. testified the conversation concluded as follows:

I added on to, “Nick, do not contact me. . . . [H]e doesn’t compare

because he’s better in every way. . . .” And then he responded, 

“Yeah. Right.” And with that I responded, “You made your bed, 

lay in it.” Then he responded, “You’ll come back one day.”

See id. at 12-13. C.M. testified she believed Ortiz sent the text messages 

because she had a two-year relationship with Ortiz, her longest, and the 

sender did not deny that he was “Nick” when she addressed the sender using 

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2 The record does not specify whether that previous communication was via 

phone call or text message.
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his name. See id. at 13, 16-17. C.M. reported her receipt of the texts to 

Officer Andy Mallette. See id. at 5-6. Officer Mallette ran a registration check 

on the phone number used to text C.M. and determined it was unregistered. 

See id. at 5-7. 

At trial, Ortiz presented his current girlfriend’s testimony that she, he, 

and her two children were together on the morning of the text conversation, 

and one of her children was using Ortiz’s phone continuously from 9:20 a.m. 

to 10:00 a.m. See id. at 19-22, 24-25. 

The trial court convicted Ortiz of indirect criminal contempt. It

concluded Ortiz texted C.M. and concealed his identity by using an anonymous 

texting app he had used before. See id. at 30-33.3 The court imposed a 

sentence of six months of probation. See id. at 34. Ortiz timely appealed, 

and counsel filed a Pa.R.A.P. 1925(c)(4) statement of intent to withdraw, in 

lieu of a Pa.R.A.P. 1925(b) statement, and an Anders brief. 

When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw. See Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 

2010). Counsel who believes an appeal is frivolous and seeks to withdraw 

from representation must:

1) petition the court for leave to withdraw stating that, after

making a conscientious examination of the record, counsel has

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3 The trial court declined to credit Ortiz’s girlfriend’s testimony. See id. at 

33-34. 
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determined that the appeal would be frivolous; 2) furnish a copy

of the brief to the defendant; and 3) advise the defendant that he

or she has the right to retain private counsel or raise additional

arguments that the defendant deems worthy of the court's

attention.

Commonwealth v. Tejada, 176 A.3d 355, 359 (Pa. Super. 2017). See also

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). 

In Santiago, our Supreme Court addressed the second requirement of 

Anders, i.e., the contents of an Anders brief, and required that the brief:

(1) provide a summary of the procedural history and facts, with 

citations to the record;

(2) refer to anything in the record that counsel believes arguably 

supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous; and

(4) state counsel’s reasons for concluding that the appeal is 

frivolous. Counsel should articulate the relevant facts of record, 

controlling case law, and/or statutes on point that have led to the 

conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders

requirements, this Court then has a duty to conduct its own review of the trial

court’s proceedings and make an independent determination whether the

appeal is wholly frivolous. See Commonwealth v. Edwards, 906 A.2d 1225, 

1228 (Pa. Super. 2006).

Here, Counsel avers in his petition to withdraw he reviewed the entire 

record and concluded the appeal is frivolous. See Ortiz’s Brief at 8. Counsel 

further avers he sent a copy of the petition to withdraw and the Anders brief 

to Ortiz, as well as information explaining Ortiz’s right to retain private counsel 
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or proceed pro se and raise any other argument Ortiz sees as meritorious. 

See Ortiz’s Brief at 8. 

Counsel’s Anders brief includes a summary of the facts and procedural 

history of the case, identifies the issues that could arguably support Ortiz’s 

appeal, and Counsel’s analysis of why the issues lack merit, with citations to 

the record and legal authority. See id. We conclude Counsel has complied 

with the requirements of the Anders procedure. Accordingly, we will conduct 

an independent review of the record to determine whether this appeal is 

wholly frivolous.

Counsel raises the following issues for our review:

I. Whether there was sufficient evidence to establish [] Ortiz 

committed indirect criminal contempt?

II. Whether the text messages that formed the basis of the

[indirect criminal contempt] charge were properly 

authenticated?

See Ortiz’s Brief at 4.

Ortiz’s first issue implicates the sufficiency of the evidence of indirect 

criminal contempt.

In considering a sufficiency of the evidence challenge, the Superior 

Court reviews evidence and all reasonable inferences from the evidence as 

follows:

The standard we apply in reviewing the sufficiency of the evidence

is whether viewing all the evidence admitted 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
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weigh the evidence and substitute our judgment for the factfinder. In addition, we note that the facts and circumstances

established by the Commonwealth need not preclude every

possibility of innocence. Any doubts regarding a defendant's guilt

may be resolved by the fact-finder unless the 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 evidence produced,

is free to believe all, part or none of the evidence.

Commonwealth v. Brumbaugh, 932 A.2d 108, 109-10 (Pa. Super. 2007)

(citations and quotation marks omitted).

“[M]uch reliance is given to the discretion of the trial judge[]” when

reviewing a conviction for contempt. Commonwealth v. Boyer, 282 A.3d

1161, 1167 (Pa. Super. 2022) (citations omitted). Because of this, our review

is limited to whether the facts support the trial court’s decision. See Boyer,

282 A.3d at 1167. A reversal is only appropriate “where there has been a

plain abuse of discretion.” Id.

Indirect criminal contempt occurs when a person violates an order or 

decree given by a court outside of the presence of the court. See Boyer, 282

A.3d at 1163. To establish indirect criminal contempt, the Commonwealth

must prove four elements: (1) that the court’s order was sufficiently definite,

clear, and specific, and left no doubt in the contemnor’s mind as to the

prohibited conduct; (2) the contemnor had notice of the order; (3) the act
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constituting the violation was volitional, not accidental; and (4) the contemnor

acted with wrongful intent. See Brumbaugh, 932 A.2d at 110. 

Here, Counsel states he “considered raising a claim there was 

insufficient evidence to convict [] Ortiz of indirect criminal contempt[,]” but 

concluded, “upon review of the record, any argument to that effect would lack 

arguable merit.” Anders’ Brief at 9. Counsel explained:

the [PFA o]rder unambiguously prohibited [] Ortiz from having any 

contact whatsoever with [C.M.]. The order was clear and left no 

doubt that all communications were prohibited. . . . The element 

of volition was met where the [trial] court found that the 

messages were indeed sent by [] Ortiz. . . . Regarding the element 

of wrongful intent, [the Superior C]ourt has determined that a 

clear and intentional violation of an unambiguous PFA order can 

allow the inference of wrongful intent.

Id. at 10-11 (record citation omitted)

The trial court agreed; it specifically credited the testimony of C.M.,

while finding the testimony of Ortiz’s girlfriend “too convenient and selfserving.” Trial Court Opinion, 5/19/23, at 3 (unnumbered). The court 

concluded, “the only reasonable explanation” for the events was Ortiz sent the 

messages. Id.

We find no error in the trial court’s ruling. The evidence showed Ortiz

knew about the PFA and intentionally violated it by texting C.M. See N.T.,

3/15/23, at 31-34. The trial court, sitting as the finder-of-fact, credited the 

Commonwealth’s version of the events, while disbelieving Ortiz’s version. See 

Trial Court Opinion, 5/19/23, at 3. “This Court will defer to the credibility 

determinations of the trial court as to witnesses who appeared before it[, and 
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it] is well-settled that the trier[-]of[-]fact while passing upon the credibility of 

witnesses and the weight of the evidence produced, is free to believe all, part 

or none of the evidence.” Commonwealth v. Juray, 275 A.3d 1037, 1046 

(Pa. Super. 2022) (citation omitted). Therefore, we agree Ortiz’s sufficiency 

claim is wholly frivolous.

In his second issue, Ortiz challenges the authentication of the text 

messages. Before reviewing the merits of Ortiz’s claim, we must consider 

when the claim is preserved for appellate review. Issues not raised in the trial 

court are waived and cannot be raised for the first time on appeal See

Pa.R.A.P. 302(a); see also Commonwealth v. Ramos, 231 A.3d 955, 957

(Pa. Super. 2020) (stating "[i]t is settled that an appellant’s failure to raise a 

contemporaneous objection to evidence at trial waives that claim on appeal”)

(internal quotation marks and citations omitted). Because Ortiz failed to 

object to the admission of this evidence at trial, his second issue is waived. 

See id.

Finally, our independent review of the record reveals no arguably 

meritorious issues Ortiz could raise on appeal. See Commonwealth v. 

Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc). Accordingly, we 

grant Counsel’s application to withdraw and affirm Ortiz’s judgment of 

sentence.

Application to withdraw from representation granted. Judgment of 

sentence affirmed.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 03/11/2024