Commonwealth v. Wilson

227 A.3d 928

COMMONWEALTH of Pennsylvania, Appellant

v.Edward D. WILSON, Appellee

No. 1458 WDA 2018

Superior Court of Pennsylvania.

Submitted February 11, 2019

Filed January 31, 2020

Jared M. Trent, Assistant District Attorney, Kittanning, for Commonwealth, appellant.

Preston T. Younkins, Kittanning, for appellee.

BEFORE: PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.^*

OPINION BY STRASSBURGER, J.:

The Commonwealth appeals from the order dated September 20, 2018. In that order, the trial court sua sponte vacated its July 23, 2018 judgment, which found Edward D. Wilson (Wilson) guilty of indirect criminal contempt (ICC) for violating an emergency order entered pursuant to the Protection from Abuse (PFA) Act, 23 Pa.C.S. §§ 6101 - 6122. We vacate the September 20, 2018 order vacating the July 23, 2018 judgment, and remand for reinstatement of the July 23, 2018 judgment finding Wilson guilty of ICC and for sentencing.

Wilson declined counsel at both the ICC hearing and the sentencing hearing, and represented himself pro se. In a prior memorandum, we held that the trial court erred by not conducting an on-the-record colloquy of Wilson's waiver of his statutory right to counsel¹ that comported with Pa.R.Crim.P. 121, and we remanded for the trial court to conduct a hearing to determine whether Wilson desired to proceed pro se or with counsel in this appeal, after advising Wilson of his right to counsel in accordance with Rule 121. Commonwealth v. Wilson , 217 A.3d 439 (Pa. Super. 2019) (unreported memorandum).

Such a hearing occurred on June 7, 2019, and Wilson invoked his right to counsel. However, the trial court neither determined whether Wilson was indigent nor appointed counsel before returning the record to this Court. On August 13, 2019, this Court directed the trial court to appoint counsel for Wilson if it determined that Wilson was indigent. The trial court determined Wilson was indeed indigent based upon his incarceration in a state correctional institution and appointed counsel. Preston T. Younkins, Esquire, from the Armstrong County Office of the Public Defender, entered his appearance in this Court on August 15, 2019. This Court issued a briefing schedule to provide Wilson with the opportunity to file an appellee's brief by September 30, 2019. Even though this Court provided notice to Wilson via Attorney Younkins, Wilson did not avail himself of the opportunity to file a brief or request an extension of time in which to file a brief. Since the deadline to file an appellee's brief has long since passed, this matter is now ripe for our resolution.

In our prior memorandum, we set forth the facts of this case as follows.

In June 2018, C.J., who lived with Wilson and shares four minor children (Children) with him, filed an emergency PFA petition seeking protection from Wilson. In the petition, she averred that Wilson kept calling her and she would not answer. He showed up at the house demanding that she tell him what he did, and then struck her in the face. According to C.J., when she called out for Children to call 911, Wilson put his hand on her mouth to stop her from yelling. When C.J. and Wilson's five-year-old son tried to protect her, Wilson threw a pogo stick. Emergency PFA Petition, 6/11/2018, at 1.

On June 8, 2018, a magisterial district judge signed an order granting emergency PFA relief [ ]. Emergency PFA Order, 6/11/2018, at 1. In accordance with section 6110 of the PFA Act, following an ex parte hearing, the magisterial district judge found upon good cause that it was necessary to protect C.J. and Children from Wilson. Id. ; 23 Pa.C.S. § 6110. The magisterial district judge ordered Wilson to: (1) refrain from abusing C.J. and Children; (2) refrain from contacting C.J. and Children; and (3) be evicted from the residence on Orr Avenue in Kittanning, Pennsylvania. Emergency PFA Order, 6/11/2018, at 1. Thereafter, Appellant was served with the emergency PFA order.

On June 11, 2018, the next business day, C.J. filed pro se a PFA petition with a verified statement of abuse. PFA Petition, 6/11/2018. In the PFA petition, she provided more details about the June 8, 2018 incident to which she referred in her emergency PFA petition. Id. at 1-2. She also recounted prior abuse by Wilson. Id. at 2. In response to C.J.'s petition, the trial court entered a temporary PFA order and scheduled a hearing. Temporary PFA Order, 6/11/2018, at 1-2. However, after two attempts, the sheriff of Armstrong County was unable to serve Wilson with the PFA petition and temporary PFA order. Sheriff's Return, 6/25/2018. Furthermore, on June 20, 2018, C.J. failed to appear for the PFA hearing, prompting the trial court to dismiss the temporary PFA order and to dismiss the entire PFA matter without prejudice. Order to Dismiss, 6/20/2018, at 1.

Meanwhile, on June 13, 2018, the Commonwealth had filed an ICC complaint against Wilson. ICC Complaint, 6/13/2018, at 1. In the complaint, the Commonwealth accused Wilson of violating the emergency PFA order, stating that after he was served with the emergency PFA order, he called C.J.'s cell phone, used profanity, and yelled at her for obtaining a PFA against him. Id.

On July 23, 2018, the trial court conducted a non-jury trial regarding the ICC complaint. Wilson appeared pro se. The Commonwealth called two witnesses: Officer Donald Blose of the Kittanning Borough Police Department and C.J. Wilson testified on his own behalf. At the conclusion of trial, the trial court entered an order adjudging Wilson to be in contempt, and ordered him to appear for sentencing. Order, 7/24/2018, at 1.

At the September 20, 2018 sentencing hearing, Wilson again appeared pro se. During the hearing, the trial court sua sponte vacated the July 24, 2018 order finding Wilson guilty and dismissed the ICC complaint, stating that Wilson had "represented[ed] that the underlying PFA order[,] which gave rise to the [ICC] Complaint[,] ha[d] been dismissed." N.T., 9/20/2018, at 8; Order, 9/20/2018, at 1.

The Commonwealth timely filed a notice of appeal. Both the Commonwealth and the trial court complied with Pa.R.A.P. 1925. The Commonwealth presents one issue on appeal: "Did the trial court err and/or abuse its discretion when it sua sponte vacated [Wilson's ICC] conviction and dismissed the complaint at the time of sentencing?" Commonwealth's Brief at 1 [ ].

Wilson , supra (unreported memorandum at 1-2) (footnotes omitted; some capitalization altered).

The PFA Act permits a court to hold an individual subject to a protection order in contempt of such order and to punish the defendant in accordance with the law. 23 Pa.C.S. § 6114(a). This Court has described the elements required for a finding of ICC as follows.

Where a PFA order is involved, an [ICC] charge is designed to seek punishment for violation of the protective order.... To establish [ICC], 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.

Commonwealth v. Brumbaugh , 932 A.2d 108, 110 (Pa. Super. 2007) (some capitalization altered). "When reviewing a contempt conviction ... we are confined to a determination of whether the facts support the trial court decision. We will reverse a trial court's determination only when there has been a plain abuse of discretion." Id. at 111 (citation omitted).

At the ICC hearing, the Commonwealth introduced the following evidence, beginning with Officer Blose's testimony. Officer Blose served Wilson with the emergency PFA order at 2:00 p.m. on June 10, 2018. N.T., 7/23/2018, at 5. Officer Blose hand delivered the order to Wilson in a side alley outside the residence shared by Wilson and C.J. Id. at 6. During service, Officer Blose told Wilson that Wilson could have no contact, direct or indirect, with C.J. Id. at 5. Specifically, he told Wilson, "don't call her, don't stop by the house, [and] don't have anybody else call her for you, or it would be a violation of the PFA." Id. After serving Wilson, Officer Blose went to the front porch of the house. Id. He told C.J. that he had served the emergency PFA order and to call 911 if there were any violations. Id. According to Officer Blose, C.J.

held up her phone and said, is this a violation? And I said, who is it? And she said, it's [Wilson]. He called me, yelling at me, calling me a bitch. It's him right now. So she put the phone up and let me listen, and I could hear him yelling at her. I could hear his voice. I am familiar with [ ] Wilson. I've known him for quite a few years. I told her, yeah, that's a violation. I will try to locate him and I will file [an ICC] complaint.

Id. The call from Wilson occurred at approximately 2:25 p.m. – just twenty-five minutes after Officer Blose had served Wilson with the emergency PFA order and informed him not to contact C.J. Id. at 7. C.J. told Officer Blose that she answered the phone because the call came from a blocked number. Id. at 10.

C.J. testified next. After obtaining the emergency order, C.J. initially stayed in her camper in another town. Id. at 12. On June 10, 2018, C.J. returned to the shared residence to gather Wilson's clothes,² and was present when Officer Blose served Wilson with the PFA outside of the residence. Id. at 12-13. After Wilson was served, Wilson left. Id. Shortly thereafter, Wilson called C.J. from a number that was different from his usual number. Id. at 13. Her phone identified the number as "[u]nknown or blocked[.]" Id. at 14. She answered the call and recognized Wilson's voice. Id. She said she did not remember the conversation, but she was sure he called her something derogative and he was upset with her because she had moved their jointly-owned boat to a different location. Id. She agreed with Officer Blose that the call came after Wilson had been served with...