Commonwealth v. Lambert

147 A.3d 1221

2016 PA Super 200

Commonwealth of Pennsylvania, Appellee

v.Jack T. Lambert, Appellant

No. 2209 MDA 2015

Superior Court of Pennsylvania.

Argued June 29, 2016

Filed September 7, 2016

David R. Crowley, Public Defender, Bellefonte, for appellant.

Crystal L. Hundt, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J. E.^*

OPINION BY STEVENS, P.J.E.:

Jack T. Lambert (“Appellant”) appeals from the judgment of sentence entered by the Court of Common Pleas of Centre County, which found him in indirect criminal contempt of a prior Protection From Abuse (“PFA”) order¹ and sentenced him to 30 days' incarceration and a consecutive period of 5 months' probation. Appellant contends that the Commonwealth failed to prove he intended to violate the PFA order and asserts that the PFA order's restriction against posting any remarks or images involving the victim on social media violated his constitutional right to free speech. We affirm.

In early October of 2015, the plaintiff (“Plaintiff”) ended her one and one-half year intimate relationship with Appellant because of what she termed “his mental abuse and everything he has absolutely put me through, especially in the last six months.” N.T. 10/30/15 at 4. She filed an emergency PFA petition on October 13, 2015, and, on October 26, 2015, obtained a final PFA order against Appellant. N.T. at 5. The order directed that, for the ensuing three years, Appellant was prohibited from having any contact with Plaintiff, either directly or indirectly, at any location. Final Order, filed 10/26/15, at 2; C.R. #3. Moreover, the order directed that “[Appellant] may not post any remark(s) and/or images regarding Plaintiff, on any social network(s), including, but [not] limited to, Facebook, Myspace, Twitter, or any other electronic networks. ” Id. (emphasis in original).

The day following entry of the final PFA order, Appellant authored a series of posts on Facebook alluding to a nameless, former paramour, his disapproval of how she ended their relationship, and the emotions he was experiencing because of the unfair treatment he believed he received from both her and the justice system. The following posts represent a sample of the Facebook comments at issue:

• I've lost my love and trust in people. I don't think I'll ever trust again. I gave her my full trust just for her to use it against me and then has somebody else within days. She never loved me but I loved her and still do. But things are different now. So, it is time to let go of her and let her be happy and hopefully she someday realizes that she needs help and turn back into the wonderful woman I love. She has three years now without me taking care of her and doing everything for her. So, maybe she will finally see things differently and see I'm willing to wait for her. I have to. She's my soulmate.

• I'm just so fucking depressed. I am so sorry, Facebook, but I lost my best friend, my love, my soul. My heart is crushed. God only knows what I will do next. I am so lost right now. God, help me through this. Please give me my love back. I have been trying to do everything right but I screw up sometimes. I can't deal with the pain.

• Wondering how you can go from lovin [sic] someone who takes excellent care of you to absolutely hating them people have arguments but that doesn't mean you stop loving them unless you never really loved them at all and was just using them.

• How can someone say they love someone and within a few days be with someone else is that a slut or what[?]

• [Appellant updated his profile picture, which depicts his nautical star tattoo, one of a set of matching tattoos that both he and Plaintiff got on their lower legs while they were a couple.]

• Justice system sucks and too many women abuse it.

Commonwealth's Exhibit 1, N.T. at 7-13.

Plaintiff contacted authorities and asserted that Appellant's Facebook activity represented a violation of the PFA order filed one day earlier. Bellefonte Police investigated her claim and forwarded Appellant's posts to the Centre County District Attorney's Office, which took the view that Appellant had violated the PFA order's prohibition against referencing the Plaintiff on social media. Accordingly, the DA's office filed a criminal complaint charging Appellant with indirect criminal contempt of the court's PFA order.

At the hearing of October 30, 2015, Plaintiff described her fearful reaction to Appellant's posts, which were entered into evidence during her testimony. Though the posts never identify her by name, Plaintiff was certain she was the subject of Appellant's commentary. The use of personal pet names such as “soulmate,” “love of his life,” and “Sunshine,”² displaying the image of their shared tattoo, discussing relationship troubles, criticizing the justice system and how women abuse it, and referencing the “three years” she would have “without [him] taking care of her” all pertained to her and the three-year duration of the PFA order, Plaintiff testified. N.T. at 7, 9-10, 11-13, 16.

As to Appellant's comment “God only knows what I will do next,” Plaintiff testified as follows:

Q: When you read things like this saying, [“]God only knows what I will do next,[”] how do you feel?

A: What he says is true. God only knows what he will do next.

Q: Does that concern you at all?

A: Most definitely.

Q: Why? Why does that worry you?

A: That worries me because what he—what has not been directed to the Court.

Q: What do you mean by that?

A: There are things that Jack has wanted to do that I have stopped him to do [sic].

Q: Can you tell us what you are talking about? The Court doesn't have that information. So, you're referencing why you're scared. You can tell the Court why you're scared when you read posts like this. Because you know what he's referring to?

A: Yes, I do.

Q: Tell us.

A: But if I do that and he gets out, I'm afraid of what he will do next.

Q: Do you have concerns for your own physical safety?

A: Absolutely.

Q: Do you have concerns for the safety of others?

A: Absolutely.

***

Q: [After establishing that plaintiff saved all Appellant's posts to her clipboard before he decided to remove them] So, at some point last night, the posts that we just talked about were removed?

A: Correct, except for the one that's there today that says this war is not over.

Q: When was that posted?

A: I believe last night or Wednesday. I'm sorry. I believe Wednesday. I could be wrong on the date.

Q: Was it at some point after these posts?

A: Yes.

Q: That's something that you actually viewed?

A: Yes.

Q: Were you concerned about that?

A: Yes.

Q: Why?

A: I don't know what Jack is capable of. Jack has been in and out of many mental hospitals throughout our relationship. I have personally had to 302 Jack. He has involuntary (sic) [in original] put himself in mental institutions many times for homicidal thoughts—is one of the main things that really scare [s] me.

N.T. 12-14.

On cross-examination, Plaintiff testified that she accessed Appellant's comments, all of which were contained in “public posts,” through her own Facebook account. N.T. at 15. She said she often checked his Facebook page for her own safety because he “is known to post all of his feelings on his Facebook, and it would give me enough time to react.” N.T. at 15-16.

Arresting officer, Sergeant Jason Brower of the Bellefonte Borough Police Department, testified that Appellant admitted “some of the posts were about her [Plaintiff] and some were about somebody else....” N.T. at 19. Appellant, himself, testified similarly, although he insisted that most of his posts were about somebody else—a former love, with only the post referencing “three years” pertaining to Plaintiff. N.T. at 22.

On cross-examination, Appellant admitted posting something regarding Plaintiff despite knowing that the court's order specifically prohibited him from doing so. N.T. at 25-26. On re-direct, Appellant said he did not intend to violate the PFA order, testifying “I didn't think it was exactly about her because I didn't say her name or nothing.” N.T. at 23. Appellant also claimed he thought he had blocked Plaintiff's access to his Facebook postings, and he does “not know how it became unblocked.” N.T. at 24-25.

At the conclusion of the hearing, the court convicted Appellant of Indirect Criminal Contempt for violation of the PFA order and sentenced him as noted, supra . This timely appeal followed.

Appellant presents two questions for our review:

1. Did the Trial Court abuse its discretion by finding [Appellant] in Indirect Criminal Contempt of his Protection From Abuse Order where there was no wrongful intent and [Appellant's] social media posts did not threaten, stalk, harass, or contact [Plaintiff]?

2. Is the restriction in [the] Trial Court's Protection From Abuse Order from posting any remarks and/or images “regarding” [Plaintiff] on any social media networks an unconstitutional violation of free speech as protected by the Constitution of the Commonwealth and the Constitution of the United States?

Appellant's brief at 6.

“The purpose of the PFA Act is to protect victims of domestic violence from those who perpetrate such abuse, with the primary goal of advance prevention of physical and sexual abuse.” Buchhalter v. Buchhalter , 959 A.2d 1260, 1262 (Pa.Super.2008).³ Where a PFA order is involved, “an [indirect criminal contempt] charge is designed to seek punishment for violation of the protective order.” Commonwealth v. Jackson , 10 A.3d 341, 346 (Pa.Super.2010) (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. Commonwealth v. Baker , 722 A.2d 718, 720 (Pa.Super.1998) (en banc ). 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...