J-S43033-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

RANDI KOPP

v.

SHAWN MCCARTHY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 502 MDA 2023

Appeal from the Order Entered March 2, 2023

In the Court of Common Pleas of Lebanon County 

Domestic Relations at No(s): 2010-5-0505

BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED: JULY 19, 2024

Shawn McCarthy appeals from the March 2, 2023 order finding him in 

both civil and criminal contempt. Said order stems from both McCarthy’s 

noncompliance with his existing child support obligations as well as his failure 

to appear at prior civil contempt hearings.1 On appeal, McCarthy argues that 

he was denied the right to counsel when, following a hearing in which he 

appeared pro se, the lower court found him in civil contempt and sentenced 

him to a corresponding term of imprisonment. Moreover, McCarthy contends 

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 Retired Senior Judge assigned to the Superior Court.

1 After finding McCarthy in civil contempt due to him missing child support 

payments, the lower court sentenced him to five months of incarceration. As

to its finding of criminal contempt, predicated on McCarthy failing to appear 

in court on four separate occasions and a bench warrant being issued, the 

lower court sentenced McCarthy to a consecutive seventy-five days of 

incarceration. McCarthy does not challenge the court’s finding of criminal 

contempt on appeal. 
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that the court abused its discretion when it set a $2,000 “purge of contempt”

condition without first making inquiry into, and determining beyond a 

reasonable doubt, his ability to pay such a condition. We vacate and remand. 

Briefly, McCarthy is the biological father of two children, a child support 

petition was filed in 2010 by the children’s biological mother, and a support 

order was established in 2012. Numerous contempt petitions were filed 

against McCarthy in the ensuing years. McCarthy was also incarcerated at 

various points during that same time period, leading to several suspensions 

in his child support obligations. 

In February 2022, the Domestic Relations Office of Lebanon County 

(“DRO”) filed the currently at-issue contempt petition. McCarthy failed to 

appear, leading to a bench warrant being issued. Ultimately, McCarthy was 

brought before the lower court in February 2023 for a contempt hearing. At 

that hearing, which featured no discussion as to his right to counsel or any 

indication that he waived such a right, McCarthy appeared pro se. 

Although McCarthy, in his defense as to nonpayment of child support,

claimed to have kidney cancer, be on short-term disability through his work 

insurance, and had additionally spent some of the preceding time in jail, see 

N.T., 2/28/23, at 3, the court found that McCarthy “completely ignored his 

child support obligations[.]” Id., at 8 (basing its decision, at least in part, on 

McCarthy’s lack of “documentation to corroborate [his] claim of disability[]”). 

Resultantly, McCarthy was sentenced to the abovementioned consecutive 

terms of incarcerations, but pursuant to the court’s order, was allowed to 
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purge himself of the civil contempt finding through a payment of $2,000.2

The Lebanon County Public Defender’s Office entered its appearance on 

behalf of McCarthy following the court’s decision and timely appealed the lower 

court’s order. McCarthy thereafter timely filed a statement of matters 

complained of on appeal and now presents two questions for our review, which 

we have reordered for ease of disposition:

1. Did the lower court err when it incarcerated McCarthy for civil 

contempt without either providing him with counsel or 

obtaining a knowing, intelligent, and voluntary waiver of that 

right?

2. Did the lower court err when it gave McCarthy a purge condition 

of $2,000 where the record did not support beyond a 

reasonable doubt that McCarthy had the present ability to 

comply?

See Appellant’s Brief, at 4.

McCarthy avers that his due process “rights were violated when he was 

incarcerated without the opportunity to demonstrate his need for appointed 

counsel nor given the opportunity to waive his right to counsel.” Appellant’s 

Brief, at 8. In support, McCarthy cites Commonwealth v. Diaz for the 

proposition that “an indigent defendant’s right to court-appointed counsel is 

triggered in any proceeding in which the court finds there is a likelihood of 

imprisonment.” 191 A.3d 851, 861 (Pa. Super. 2018) (emphasis added). Here, 

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2 As of the time of the hearing, McCarthy owed $9,981 in child support. See 

N.T., 2/28/23, at 5. Although its rationale is unclear, the court set McCarthy’s 

purge amount at approximately 20% of that outstanding balance. 
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McCarthy 

was not represented by counsel at his contempt hearing. No one 

provided him with a form designed to elicit information about his 

financial circumstances. ... McCarthy was not provided notice that 

the critical issue at the contempt hearing was the ability to pay. 

The plaintiff’s attorney did not make an appearance at the 

contempt hearing. However, the [DRO], which is the entity 

opposing [McCarthy] in that [it is] the entity that filed the 

contempt petitions, was represented by Attorney John Gragson, 

Esq. ... McCarthy was not advised that he could have an attorney 

present, he was not advised of the central legal issues that [the] 

court would be determining at the contempt hearing, and he was 

not colloquied for a waiver of counsel.

Appellant’s Brief, at 19. 

In response, the DRO claims that pursuant to Turner v. Rogers, 564 

U.S. 431, 449 (2011) (holding that the 14th Amendment entitles an indigent 

contemnor to either counsel in a civil contempt proceeding or “the benefit of 

alternative procedures”), McCarthy, through the language contained in forms 

that were sent to him prior to the contempt hearing, was “provided the 

opportunity to seek counsel and an explanation of the importance of financial 

status as a possible defense to his contempt.” Appellee’s Brief, at 15. In 

essence, notwithstanding his lack of counsel or waiver thereof, McCarthy 

received substitute procedural safeguards that comported with the thrust of 

Turner. See 564 U.S. at 447-49.

In Diaz, this Court “declined to impose an automatic right to courtappointed counsel in all civil contempt proceedings.” 191 A.3d at 862. 

However, as stated supra, we unambiguously held that “an indigent 

defendant’s right to court-appointed counsel is triggered in any proceeding in 
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which the court finds there is a likelihood of imprisonment.” Id., at 862; see 

also Pa.R.Crim.P. 122(A)(1). Consequently, if, at a civil contempt hearing,

the court determines there is a likelihood of incarceration, “the court must

appoint counsel and permit counsel to confer with and advocate on behalf of 

the defendant at a subsequent hearing.” Diaz, 191 A.3d at 862 (emphasis 

added).

3

Here, as evidenced, at least in part, by the sentence that he received, 

McCarthy faced a likelihood of incarceration for civil contempt. As such, he 

had a right to counsel under Diaz, and there is no indicia of him waiving that 

right. Accordingly, the court erred in failing to appoint counsel. 

Notwithstanding the Diaz case arising from a failure to pay court fines rather 

than from a child support matter, the legal underpinning was the same: both 

this case and Diaz involved civil contempt proceedings where incarceration 

was likely. Therefore, we must vacate the finding of contempt and

corresponding sentencing order and remand for the appointment of counsel 

and a new hearing.4

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3 As further background, Diaz involved a determination that an indigent 

defendant had a right to counsel in a civil contempt proceeding where that 

defendant was found in contempt for a failure to pay court-ordered fines and 

costs. See 191 A.3d at 852.

4 As to McCarthy’s second issue involving the court’s abuse of discretion in 

having not made an inquiry into his ability to pay the set purge amount, we 

note the unsettled nature of authority in this domain. Most recently, this Court, 

in an unreported decision, concluded that “before a trial court may impose a 

(Footnote Continued Next Page)
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Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 7/19/2024

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purge condition in a civil contempt case, it must determine, beyond a 

reasonable doubt, that the contemnor has the ability to comply.” Bredbenner 

v. Hall, 2023 WL 5237495 at *3 (Pa. Super., Aug. 15, 2023) (unreported

memorandum) (citations omitted). The implication of Bredbenner is that the 

onus is on the trial court to ascertain, beyond a reasonable doubt, a 

contemnor’s ability to pay a purge condition. However, other unreported 

decisions have yielded converse outcomes regarding the interplay between a

contemnor’s burden of proof in demonstrating a present inability to pay and 

court’s consideration thereof. See R.S. v. R.E.W., 2017 WL 657743 (Pa. 

Super., Feb. 17, 2017) (unreported memorandum). Should another purge 

amount be set following a subsequent contempt proceeding, McCarthy is free 

to reraise this issue at that juncture.