Commonwealth v. Walsh

2012 PA Super 9

36 A.3d 613

COMMONWEALTH of Pennsylvania,

v.Jerome WALSH, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 26, 2011.Filed Jan. 18, 2012.

Frank Santomauro, Scranton, for appellant.

Lisa A. Swift, Assistant District Attorney, Scranton, for Commonwealth, appellee.

BEFORE: DONOHUE, OLSON and STRASSBURGER^*, JJ.OPINION BY STRASSBURGER, J.:

Jerome Walsh (Appellant) appeals from the order entered by the trial court following his conviction of indirect criminal contempt ¹ for violating an order entered pursuant to the Protection From Abuse Act. ² We affirm.

Victim S.S., born in July 1993, is the daughter of Appellant's paramour. From the time she was five years old until August 2010, S.S. resided in her mother's home with Appellant, her mother, and her two minor step-siblings.³ In August 2010, S.S. moved from Appellant's home after making allegations of sexual abuse against Appellant. S.S. presently resides with her older sister, Ashley.

On January 7, 2011, Ashley filed a Protection from Abuse (PFA) petition against Appellant on S.S.'s behalf, alleging that he had become violent with S.S. while S.S. was visiting her younger step-siblings at Appellant's home. This request was granted and a Temporary PFA order was entered against Appellant on behalf of S.S. On January 24, 2011, the Temporary PFA order was continued for a period of one month.

The order prohibits Appellant from having any contact with S.S. Specifically, the order provides

1. [Appellant] shall not abuse, harass, stalk or threaten [S.S.] in any place where [she] might be found.

2. Except as provided in paragraph 5 of this order [regarding custody of minor children], [Appellant] shall not contact [S.S.], or any other person protected under this order, by telephone or by any other means, including through third persons.

Temporary PFA Order, 1/24/2011, at 1 (unnumbered) (emphasis added).

On February 12, 2011, while the Temporary PFA order was still in effect, Appellant was alleged to have violated its terms by threatening to harm S.S. Specifically, Appellant was alleged to have approached S.S.'s friend Sarah Craft (Craft) while she was at a bus stop across the street from a bar he was patronizing and instructed Craft to tell S.S. that if he (Appellant) saw her “she'd be fucked.” N.T., 2/23/2011, at 10. In response, Craft contacted S.S. via cellular phone and informed S.S. about the encounter. Upon learning of the threats, S.S. contacted her sister Ashley who drove S.S. and Craft to the Scranton Police Station where they filed a report regarding the incident.

On February 12, 2011, a criminal complaint was filed against Appellant charging him with one count of indirect criminal contempt for violating the Temporary PFA order. On February 23, 2011, a hearing was held on Appellant's indirect criminal contempt charge. Following the hearing, Appellant was found guilty and sentenced to a term of six months' probation. Additionally, the trial court entered a Final PFA Order on February 23, 2011. The terms of the final PFA order remain effective for three years.

On March 2, 2011, Appellant filed a “Motion for New Trial/Hearing Pursuant to Pa.R.Crim.P. 720(B)(1)(a), Based Upon Potentially Exculpatory Evidence Requested By Defendant And Not Produced Pursuant to Criminal Subpoena No. 3468.” This motion was denied by court order on March 9, 2011. This timely appeal followed. The trial court did not order Appellant to comply with Pa.R.A.P. 1925(b). Appellant presents six questions for our review. These claims of error have been renumbered for ease of disposition:

1. Whether the trial court erred in determining that [ (S.S.) ] was a protected person under the [Protection] From Abuse Act defined by [23 Pa.C.S. § 6102(a) ], when she shared no biological relationship with [Appellant], he was not her legal guardian or step father, nor did [ (S.S.) ] reside with [Appellant]?

2. Whether the alleged statements made by the Appellant to a 3rd party alone, not within the protected party's presence, can be deemed a violation of the January 24, 2011 temporary protection from abuse order?

3. Whether the trial court abused its discretion and violated [Appellant's] right of confronting and thorough cross-examination of his accusers, when the [Commonwealth's] only accusatory witness, after being served with a criminal subpoena to produce documents (i.e. cellular phone records) was excused by the trial court from producing the requested information, [upon the trial court's] ruling that the subpoena issued was untimely served under the [Pennsylvania] Rules of Civil Procedure?

4. Whether the trial court erred as a matter of law and abused its discretion in denying [Appellant's] motion for a new trial, when the [Commonwealth's] main and only accusatory witness, failed to honor [Appellant's] criminal subpoena to produce relevant and potentially exculpatory evidence, ruling that the subpoena violated the Pennsylvania Rules of Civil Procedure and that the subpoena could have been served on the [witness'] cellular telephone provider?

5. Whether the trial court violated [Appellant's] ability to confront his accusers and due process rights when refusing to allow Appellant the ability to call essential fact witnesses who directly rebut the allegations of [Appellant's] only accuser?

6. [Whether the verdict of the trial court was against the weight of the evidence.]

Appellant's Brief at 8.⁴

We note that “[i]n the context of a [PFA] order, we review the trial court's legal conclusions for an error of law or abuse of discretion.” Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa.Super.2007) (citation omitted).

As a threshold issue, Appellant claims that the trial court erred in determining that S.S. was a protected person under the Protection from Abuse (PFA) Act. Appellant argues the absence of a biological, step-parent, or guardian relationship with S.S., coupled with the fact that S.S. no longer resides in the same home with her mother or Appellant, necessarily requires a reversal of the trial court's order.

The trial court found that Appellant and S.S.'s mother have been in a relationship for 13 years and have resided together during that time. Trial Court Opinion, 4/13/2011, at 2. With regard to the relationship between S.S. and Appellant, the trial court found that Appellant had been involved in S.S.'s life since she was five years old; that S.S. had resided with Appellant for approximately 13 years, during which time Appellant treated S.S. as a step-daughter; and that S.S.'s decision to leave Appellant's residence and move in with her sister was based entirely on allegations of a sexual nature raised by S.S. against Appellant in August of 2010. Id. at 2–3. Based on this history, the trial court determined that S.S. was a protected party as contemplated by the PFA statute. We agree.

“The goal of the Protection from Abuse Act is protection and prevention of further abuse by removing the perpetrator of the abuse from the household and/or from the victim for a period of time.” Viruet v. Cancel, 727 A.2d 591, 595 (Pa.Super.1999). The PFA Act operates to protect victims of domestic violence and permit the courts to respond quickly and flexibly to both early signs and subsequent acts of abuse with the issuance of protection orders. See Commonwealth v. Snell, 737 A.2d 1232 (Pa.Super.1999). The statute specifically provides protection for “family or household members” of the alleged abuser. The term “family or household members” is defined as “spouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood.” 23 Pa.C.S. § 6102 (emphasis added). Here, we must determine whether Appellant and S.S. are persons related by affinity.

The term “affinity” is not defined in the PFA Act. See 23 Pa.C.S. § 6102. The dictionary defines “affinity” as, inter alia, “related by marriage or by ties other than those of blood.” Webster's American Dictionary, 14 (2nd College ed.2000) (emphasis added). Instantly, S.S. has ties other than those of blood to Appellant as S.S.'s two half-siblings are the natural children of Appellant and S.S.'s mother. Given the remedial purpose of the PFA Act it is incumbent upon us to interpret “affinity” so as to include this relationship. Accordingly, we hold that the trial court did not err in determining that S.S. has standing under the PFA Act.

In his second question, Appellant appears to challenge the sufficiency of the evidence produced by the Commonwealth.

Our standard of review in assessing whether sufficient evidence was presented to sustain Appellant's conviction is well-settled. 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 [this] 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.

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