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[U] Commonwealth v. Breon

Superior Court of Pennsylvania

February 28, 2014



Appeal from the Judgment of Sentence April 8, 2013 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-MD-0000604-2013




Appellant, Daniel Breon, appeals nunc pro tunc from the April 8, 2013 judgment of sentence of 180 days' incarceration, entered following his conviction for indirect criminal contempt of a Protection from Abuse (PFA) order.[1] After careful review, we affirm.

The factual and procedural history of this case, as ascertained from the certified record, follows. Appellant was subject to a January 28, 2013 PFA order prohibiting, inter alia, any contact with his son, C.D.B. On April 2, 4, and 6, 2013, Appellant appeared at a ball field where C.D.B. was participating in Little League Baseball games. Appellant photographed C.D.B. and made his presence known, which upset C.D.B.

Based on these contacts, Appellant was charged with indirect criminal contempt by criminal complaint issued on April 6, 2013. The trial court conducted an indirect criminal contempt hearing on April 8, 2013, at which Appellant appeared pro se. At the conclusion of the hearing, the trial court found Appellant guilty of indirect criminal contempt and sentenced Appellant to a term of incarceration of 180 days.

On June 3, 2013, Appellant, now represented by David Crowley, Esquire (Attorney Crowley), of the Centre County Public Defender's Office, filed a motion for reinstatement of Appellant's direct appeal rights.[2] On June 25, 2013, the trial court presided over a hearing on Appellant's motion. Concluding it had not properly advised Appellant of his appeal rights at the time of Appellant's sentencing, the trial court granted Appellant's motion and reinstated his direct appeal rights nunc pro tunc on July 2, 2013. Appellant timely filed a notice of appeal on July 3, 2013. On July 26, 2013, the PCRA court directed Appellant to file within 21 days a concise statement of errors complained of on appeal, in accordance with Pennsylvania Rule of Appellate Procedure 1925(b). Attorney Crowley filed a timely Rule 1925(b) statement on Appellant's behalf that same day. The trial court filed a Rule 1925(a) opinion on August 15, 2013.

On appeal, Appellant raises the following issue for our review.

I. Did the [trial] court lack sufficient evidence from which to conclude that defendant violated the underlying protection from abuse order?

Appellant's Brief at 5.

As an initial matter, we must determine if Appellant's Rule 1925(b) concise statement was adequate to preserve this issue on appeal. Appellant's Rule 1925(b) concise statement declared in pertinent part as follows. "The verdict of guilty was not supported by sufficient evidence[.]" Appellant's Concise Statement of Matters Complained of on Appeal, 7/26/13, at 1, ¶1. Rule 1925(b) provides in pertinent part as follows.

(4) Requirements; waiver.
(i) The Statement shall set forth only those rulings or errors that the appellant intends to challenge.
(ii) The Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge. The judge shall not require the citation to authorities; however, appellant may choose to include pertinent authorities in the Statement.
(vii) Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived

Pa.R.A.P. 1925(b)(4)(i)-(ii), (vii) (emphasis added).

"[A] Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent to no Concise Statement at all." Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002) (citation omitted), appeal denied, 841 A.2d 430 (Pa. 2003). "An overly vague or broad Rule 1925 statement may result in waiver. See Commonwealth v. Reeves, 907 A.2d 1, 3 (Pa. Super. 2006) ('The Rule 1925(b) statement must be detailed enough so that the judge can write a Rule 1925(a) opinion….')[, appeal denied, 919 A.2d 956 (Pa. 2007)]." Majorski v. Douglas, 58 A.2d 1250, 1258 (Pa. Super. 2012), appeal denied, 70 A.2d 811 (Pa. 2013), cert. denied, 2014 WL 102443 (U.S. 2014). "Even if the trial court correctly guesses the issues Appellant raises on appeal and writes an opinion pursuant to that supposition, the issue is still waived." Heggins, supra (citation omitted). "[T]he courts lack the authority to countenance deviations from the Rule's terms; the Rule's provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule's requirements; Rule 1925 violations may be raised by the appellate court sua sponte." Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

With specific regard to challenges to the sufficiency of evidence we have held "that when challenging the sufficiency of the evidence on appeal, the [a]ppellant's 1925 statement must 'specify the element or elements upon which the evidence was insufficient' in order to preserve the issue for appeal." Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citations omitted), appeal denied, 3 A.3d 670 (Pa. 2010), see also Commonwealth v. Garland, A.3d 339, 344 (Pa. Super. 2013) (finding that "a generic statement stating '[t]he evidence was legally insufficient to support the convictions, '" was inadequate to preserve the issue on appeal, citing Gibbs).

Instantly, Appellant's concise statement is generic and fails to specify the elements upon which his claim of insufficiency is based. In light of the foregoing authority, we are constrained to conclude Appellant has waived his sole issue on appeal.

Even if Appellant had preserved his issue, we conclude it has no merit. "[W]hen reviewing a contempt conviction, much reliance is given to the discretion of the trial judge. Accordingly, we are confined to a determination of whether the facts support the trial court's decision. We will reverse a trial court's determination only when there has been a plain abuse of discretion." Commonwealth v. Haigh, 874 A.2d 1174, 1176-1177 (Pa. Super. 2005) (citation omitted), appeal denied, 877 A.2d 1240 (Pa. 2005).

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 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 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.

Commonwealth v. Caban, 60 A.3d 120, 132-133 (Pa. Super. 2012) (citation omitted), appeal denied, 79 A.3d 1097 (Pa. 2013).

"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 order; 3) the act constituting the violation must have been volitional; and 4) the contemnor must have acted with wrongful intent."

Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa. Super. 2012), citing Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007).

In his brief, Appellant maintains that the Commonwealth did not establish that the order in place at the time of his conduct gave proper notice that his actions were prohibited. Appellant's Brief at 14-15. The final PFA order, which is the subject of the instant contempt, is dated January 25, 2013 and was entered on January 28, 2013.[3] Appellant's son, C.D.B., is named as a protected party under the order. See Final PFA Order, 1/28/2013, at 1. The order provides that Appellant "is prohibited from having ANY CONTACT with Plaintiff either directly or indirectly, or any other person protected under this order, at any location, including but not limited to any contact at Plaintiff's or other protected party's school, business, or place of employment." Id. at 3, ¶3 (emphasis in original). No exceptions to the no-contact provision were included in the order. Id. at 3, ¶5.

Appellant admits to being at his son's Little League field in order to watch his son play. Appellant's Brief at 14. He contends the PFA order did not make it clear that this conduct was prohibited. Id. at 14-15.

[Appellant's] intent, by all accounts and permissible inferences, on April 4th and 6th was to watch his 12 year old son play the great American pastime. He should not be made to suffer the stain of a conviction, much less 6 months of his life behind bars, because the law firm his ex-spouse retained to protect her interest in their custody dispute was unable to be more specific in what he could and could not do.

Id. at 15.

Appellant's impertinent characterization of the PFA order notwithstanding, we conclude the unequivocal language of the January 18, 2013 PFA order leaves no doubt that Appellant's presence at C.D.B.'s Little League games was prohibited. Appellant's physical location across the street on private property during the third encounter is irrelevant where he made his presence known to C.D.B., cheering and taking photographs. The no-contact-in-any-manner-in-any-location proscription in the January 28, 2013 PFA order clearly encompasses Appellant's contacts in this case.

The totality of the circumstances viewed in the light most favorable to the Commonwealth clearly establishes that Appellant was subject to a PFA order that clearly prohibited his conduct, that Appellant had notice of the order, that Appellant's acts were volitional, and that Appellant acted with wrongful intent, knowing his conduct was prohibited. We conclude that the trial court committed no error or abuse of discretion in entering its verdict and sentence in this case. Appellant's sole issue on appeal being waived, and in the alternative being without merit, we affirm the April 8, 2013 judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

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