J. S 66 0 39 /1 9

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 E DA 20 18

: 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 con tempt 1 for 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).J. S 6 6 0 39 /1 9

- 2

- on December 19, 2017 and was again granted a temporary PFA order against [a]ppellant after an

ex par te 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 exclu ded [a]ppellant from [the

victim ’ s] property and specifically ordered [a]ppellant to stay away from her place of employment, a daycare

center. F urther, 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 custo dy 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 godfath er to
take the child to the 18 th Police Di strict by 6:00 P.M.
for th e 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 cour t papers for that purpose. 23 P[a

. ] C.S.A. § 6108([g] ).J. S 6 6 0 39 /1 9

- 3

- . . . .

[The victim] returned to her place of employment immediately after l eaving 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 th e daycare center where [the victim] w orked and spoke to [the victim ’ s] boss for approximately thirty

minutes.

Later that same day, [a]ppe llant arrived at the
18 th 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 vi ctim bega n 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 appro ached 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, 20 18, the [trial court]J. S 6 6 0 39 /1 9

- 4

- presided over a non

- jury trial where both parties
testified as to what occurr ed 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

Att orney 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, a ppellant 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

cou rt 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 rev iew 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, ho wever , was the date on which the notice of appeal was docketed in this court.J. S 6 6 0 39 /1 9

- 5

-

2018

, 3 the trial court dir ected “ [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 comp l ete a docketing

statement , this court entered an orde r on September 11, 2018

, directing

Attorney Steenson to file a docketing statement by Septem ber 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 cou rt 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 Att orney 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 fo llowing issue s :

1. Did the [trial cour t] 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.)J. S 6 6 0 39 /1 9

- 6

- 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

int e nt as said elements relate to [appellant ’ s] interaction with [the victim] at the 18 th Police
District?

Appellant ’ s brief at 6.

T he 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 c rime 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 pos sibility 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 Commonweal th 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 recor d must be evaluated and all evidence actually received must be cons idered. 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

- 1 10 (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 contemptJ. S 6 6 0 39 /1 9

- 7

- charge is designed to seek punish ment for violation of the protective order

. As with tho se 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 Common wealth 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 h ave acted with wrongful intent.

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

In his first issue

, appellant c laims that the evidence was in sufficient to

support his conviction as it failed to demonstrate that he acte d 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, a ppellant ’ 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 i ntent can be imputed. Co nsequently , this

claim fails.

In his second issue, appellant c laims that the evidence was in sufficient

to support his conviction as it failed to demonstrate that he acted with volitionJ. S 6 6 0 39 /1 9

- 8

-

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

18 th 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 vi ctim] 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 fo llow the victim, approach her, and

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

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

Viewing the evidence in the light most favorable to the Commonwealth

a s 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