J. S66039/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MONTRAY CHERRY, : No. 2293 EDA 2018

:

 Appellant :

Appeal from the Judgment of Sentence Entered July 19, 2018,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. MC-51-CR-0002492-2018

BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 05, 2020

Montray Cherry appeals from the July 19, 2018 judgment of sentence 

entered in the Court of Common Pleas of Philadelphia County after appellant 

was found guilty in a bench trial of indirect criminal contempt1for violating a 

temporary protection from abuse (“PFA”) order. The trial court sentenced 

appellant to a six-month probationary term. We affirm.

The trial court set forth the following:

Appellant’s conviction stems from violations of a

temporary PFA order entered against [a]ppellant by 

the Honorable Daniel Sulman on December 19, 2017. 

The victim initially filed a PFA petition against 

[a]ppellant on August 29, 2017 and Judge Sulman 

issued a temporary PFA order after an ex parte

hearing on that date. The victim’s PFA petition was 

dismissed two days later when she did not appear for 

the trial on that petition. She refiled her PFA petition 

 

1 23 Pa.C.S.A. § 6114(a).
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on December 19, 2017 and was again granted a 

temporary PFA order against [a]ppellant after an 

ex parte hearing. Only the December 19, 2017 

Temporary PFA Order (“Temporary PFA Order”)

against [a]ppellant is relevant to this appeal.

The Temporary PFA Order provided that [a]ppellant

“shall not contact [the victim], or any other person 

protected under this Order, by telephone or by any 

other means, including through third persons.” The 

Order also evicted and excluded [a]ppellant from [the 

victim’s] property and specifically ordered [a]ppellant

to stay away from her place of employment, a daycare 

center. Further, the Temporary PFA Order stated 

[a]ppellant “shall not abuse, harass, stalk or threaten 

any of the above persons in any place where they 

might be found.”

The Temporary PFA Order against [a]ppellant also 

granted [the victim] temporary physical custody of 

the parties’ child. Though the written Temporary PFA 

Order did not specify how and when the child should 

be turned over to the victim, Judge Sulman orally 

instructed [a]ppellant to direct the child’s godfather to 

take the child to the 18th Police District by 6:00 P.M. 

for the custody exchange.

The Temporary PFA Order expressly notified 

[a]ppellant of the consequences should he violate the 

Temporary PFA Order:

[[a]ppellant] is hereby notified that the 

violation of this order may result in arrest 

for indirect criminal contempt, which is 

punishable by a fine of up to $1,000 

and/or up to six months in jail.

23 P[a].C.S.A. § 6114. Consent of the 

[victim] to [appellant’s] return to the 

residence shall not invalidate this Order, 

which can only be changed or modified 

through the filing of appropriate court 

papers for that purpose. 23 P[a.]C.S.A. 

§ 6108([g]).
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. . . .

[The victim] returned to her place of employment 

immediately after leaving the courthouse with her 

[T]emporary PFA Order. Shortly thereafter, 

[a]ppellant — who had already been served with the 

[Temporary PFA] Order at issue — appeared at the 

daycare center where [the victim] worked and spoke 

to [the victim’s] boss for approximately thirty 

minutes.

Later that same day, [a]ppellant arrived at the 

18th police district without their child. Upon talking to 

an officer, [a]ppellant eventually left and then 

returned to the police station with the child between 

9:00 and 10:00 P.M. After exchanging some words 

with [a]ppellant, the victim began walking back to her 

residence — about three blocks from the police 

station — with the child. Throughout her walk home, 

[a]ppellant slowly drove his car next to her and 

attempted to talk to her. Appellant eventually got out 

of the car and approached the victim. He then tried 

to grab her, and more words were exchanged. 

Appellant proceeded to get back into his car, drove to 

the victim’s residence, and again exited the vehicle 

and approached her outside her home.

As the victim stood on her porch, [a]ppellant threw 

baby diapers in her direction and said the following:

You got something coming for you. Just 

watch and see. You just made it worse. 

Look, look, you’re not going to keep me 

from seeing my son. This is why we’re 

here today. You better get your good 

lawyer because you’re going to need one. 

My family got money. You just watch. 

You just watch.

[The victim] gave the police a statement which was

substantially consistent with her testimony. On 

January 25, 2018, [a]ppellant was arrested on 

charges of Contempt for Violation of a Court Order and 

Terroristic Threats. On July 19, 2018, the [trial court] 
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presided over a non-jury trial where both parties 

testified as to what occurred on the date in question. 

Th[e trial c]ourt found that [the victim’s] testimony 

was credible and that [a]ppellant’s testimony was not.

Trial court opinion, 3/15/19 at 1-5 (record citations and footnotes omitted).

The record reflects that appellant was represented at trial by 

Attorney Derek Alan Steenson. Nothing in the record indicates that 

Attorney Steenson sought to withdraw after appellant’s conviction. The record 

further reflects that following his conviction, appellant filed a notice of appeal 

on July 19, 2018.2 On August 9, 2018, the notice of appeal was docketed in 

this court.

By correspondence dated August 9, 2018, this court notified 

Attorney Steenson that appellant’s docketing statement was due by 

August 23, 2018. By order entered on the trial court docket on August 14, 

 

2 We note that the notice of appeal is a form notice of appeal from municipal 

court to the Court of Common Pleas, but bears a handwritten notation that it 

is an appeal from the judgment of sentence entered on July 19, 2018. We 

further note that the notice of appeal is not executed. The trial court 

concluded that appellant filed the notice of appeal pro se. (Trial court opinion, 

3/15/19 at 3.) Our review of the record, however, indicates that 

Attorney Steenson filed the notice of appeal because the handwriting on the 

notice of appeal matches the handwriting on Attorney Steenson’s executed 

entry of appearance in the underlying criminal matter, which, we note, was 

erroneously docketed as a “defense request for continuance newly retained or 

appointed.” (See “defense request for continuance newly retained or 

appointed,” 4/26/18.)

We further note that in its opinion, the trial court states that appellant 

filed his notice of appeal on August 9, 2018. August 9, 2018, however, was 

the date on which the notice of appeal was docketed in this court.
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2018,

3

the trial court directed “[a]ppellant Montray Cherry” to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) 

within 21 days. The record is silent as to whether the Rule 1925(b) order was 

served on Attorney Steenson, appellant, or both. Having received no 

response to this court’s request that Attorney Steenson complete a docketing 

statement, this court entered an order on September 11, 2018, directing

Attorney Steenson to file a docketing statement by September 21, 2018. As 

Attorney Steenson failed to do so, this court entered an order remanding the 

case to the trial court to conduct a hearing to determine, among other things, 

whether Attorney Steenson abandoned appellant.4 (Order of court, 

10/16/19.) The trial court held the hearing on November 8, 2018, at which 

appellant, Attorney Steenson, and the Commonwealth appeared. (Trial court 

“notice,” 11/15/18.) The trial court determined that appellant was eligible for 

court-appointed counsel and appointed Attorney Steenson as appellate 

counsel. The trial court then issued a second Rule 1925(b) order. Appellant

filed a timely response. The trial court thereafter filed its Rule 1925(a) 

opinion. This appeal is now ripe for our review.

Appellant raises the following issues:

1. Did the [trial court] err regarding the required 

establishment of both volition and wrongful 

 

3 We note that the trial court docket sheet reflects that the order was entered 

on August 14, 2018, but that the order itself bears a time-stamp of 

“August 20, 2018.”

4 We note that this court retained jurisdiction. (Order of court, 10/16/18.)
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intent as said elements relate to [appellant’s] 

interaction with [the victim’s] boss?

2. Did the [trial court] err regarding the required 

establishment of both volition and wrongful 

intent as said elements relate to [appellant’s] 

interaction with [the victim] at the 18th Police 

District?

Appellant’s brief at 6.

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 weigh the evidence and substitute 

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. 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, 109-110 (Pa.Super. 2007) 

(citation omitted).

A charge of indirect criminal contempt consists of a 

claim that a violation of an Order or Decree of court 

occurred outside the presence of the court. Where a 

PFA order is involved, an indirect criminal contempt 
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charge is designed to seek punishment for violation of 

the protective order. As with those accused of any 

crime, one charged with indirect criminal contempt is 

to be provided the safeguards which statute and 

criminal procedures afford. 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 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.

Id. at 110 (internal citations and quotation marks omitted).

In his first issue, appellant claims that the evidence was insufficient to 

support his conviction as it failed to demonstrate that he acted with volition 

and wrongful intent to violate the Temporary PFA Order when he went to the 

victim’s place of employment because when he went there, he spoke to the 

victim’s boss and not to the victim. (Appellant’s brief at 7.) The Temporary 

PFA Order, however, “specifically ordered [appellant] to stay away from” the 

victim’s place of employment. (Temporary PFA Order, 12/19/17 at 2, ¶ 3.) 

There is no dispute that appellant had notice that he was specifically ordered 

to stay away from the victim’s place of employment and that he nevertheless 

chose to go there. Therefore, appellant’s act of going to the victim’s place of 

employment when ordered to stay away from that place was clearly volitional, 

or knowingly made, and wrongful intent can be imputed. Consequently, this 

claim fails.

In his second issue, appellant claims that the evidence was insufficient 

to support his conviction as it failed to demonstrate that he acted with volition 
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and wrongful intent to violate the Temporary PFA Order when he went to the 

18th Police District because he went there to “give the baby’s food and other 

items to [the victim].” (Appellant’s brief at 8.) The trial court, however, found 

that appellant “violated the harassment portion of paragraph one when he 

followed [the victim] from the police station, went up to the [victim], and 

threw diapers at her.” (Trial court opinion, 3/15/19 at 13.) There is no 

dispute that appellant had notice that he was prohibited from harassing the 

victim. Nevertheless, appellant chose to follow the victim, approach her, and 

throw diapers at her. Appellant’s acts were clearly volitional, or knowingly 

made, and wrongful intent can be imputed. Therefore, this claim fails.

Viewing the evidence in the light most favorable to the Commonwealth 

as verdict winner, it was sufficient to enable the trial court, sitting as 

fact-finder, to find appellant guilty of indirect criminal contempt beyond a 

reasonable doubt because it demonstrated that appellant acted with volition 

and wrongful intent.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/5/20