Loading...
HomeMy WebLinkAboutCP-21-MD-0000081-2018 COMMONWEALTH v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT DEVIN T. COOPER CP-21-MD-0081-2018 IN RE: OPINION PURSUANT Pa.R.A.P. 1925(a) PLACEY, C.P.J. 14 MAY 2018 HISTORY Defendant was a subject of a Protection from Abuse Order issued on June 10, 2015, at Cumberland County civil docket 2015-02994. The Protection from Abuse Order prohibited Defendant from having any contact with the victim in this contempt case, direct or indirect, by telephone or other means. The charge of Indirect Criminal Contempt was brought by the Pennsylvania State Police on January 23, 2018, alleging that at approximately 9:22 that morning a call was received by the victim, whom she believed to have come from Defendant. A bench trial on the charge of Indirect Criminal Contempt was held on February 20, 2018. Upon the conclusion of the testimony, Defendant was found to be in violation of the Protection from Abuse Order and Defendant was ordered to pay the cost of criminal prosecution and the civil Protection from Abuse Order extended through February 2021. MD-0081-2018 Defendant filed an appeal to the Superior Court of Pennsylvania and was directed to file a Statement of Errors complained of on appeal, which Defendant did on March 28, 2018. Specifically, Defendant complains on appeal that: 1. The trial court erred when it denied the Defendant’s Motion for Acquittal based on the sufficiency of the evidence. 2. The trial court erred when it denied the Defendant’s Motion for Dismissal based on a de minimis infraction. This opinion is in support of the decision and sentence. FACTS The facts from trial and the civil docket are as follows: 1. On June 10, 2015, the Defendant and victim entered by mutual agreement, without any admission on Defendant’s part of the allegations, into a final Protection from Abuse Order. 2. Paragraph 3 of that Order provided in part that “except as provided in paragraph 5 … Defendant is prohibited from having ANY CONTACT with \[victim\].” (emphasis added). 3. Paragraph 5 of the agreed upon Protection from Abuse Order was stricken by pen strikethrough of the entire custody paragraph. 4. The Protection from Abuse Order was to expire on June 10, 2018. 5. Victim testified that on January 23, 2018, she was waiting for a doctor to call her when an unknown number appeared on her phone and she answered it. 6. Victim indicated upon answering, a voice was heard indicating “you have a collect call from” then a person on the other end of the phone said 2 MD-0081-2018 “Cooper” really low and fast, after which the first voice came back on indicating payment options to accept this call to victim and then the call dropped. 7. Victim identified the voice of the person who said Cooper as being the Defendant, whom she has known since 2011 or 2012, and with whom she has a daughter. 8. As parents they have no custody agreement or order regarding their daughter, and as previously noted, the custody provisions in the Protection from Abuse Order had been stricken by their agreement. 9. At the time of the call, Defendant was incarcerated in Cumberland County Prison. 10. A Lieutenant from the Cumberland County Prison testified as to the prison’s inmate phone records, how they are created, and how each inmate is given a unique PIN number that is identified from a printout of the phone logs. 11. The phone log for that date was introduced as Commonwealth’s Exhibit 1, and it indicated that a call from Defendant’s account, as identified by the PIN, was placed to the victim’s number. 12. Victim was recalled and identified her phone number which matched that which the Lieutenant had previously identified as being called by the PIN associated with Defendant. 13. Defendant took the stand on his own behalf and indicated he did make that call that had previously been identified by victim. 3 MD-0081-2018 14. Further, Defendant indicated that the purpose of the call was to contact his daughter, whom he had last seen in May 2015, which was prior to the agreed upon entry of the Protection from Abuse. 15. Further, Defendant acknowledged that there was no custody agreement. 16. The Petition for Protection from Abuse indicates, at the time of its filing, the child was a year old, which would make her approximately four years old at the time Defendant placed this call. 17. Defendant had previously filed a Motion to Dismiss the Protection from Abuse Order, which he filed on his own on July 10, 2017, which did not include any request for custody. 18. After a review of the Petition, notation that the return address of Defendant was from a State Correctional Institute, and review of his criminal dockets in this county that indicated his convictions \[sexual assault, criminal trespass, false imprisonment and simple assault of the victim herein\], the Motion to Dismiss was denied on July 20, 2017. DISCUSSION Statement of Law. The standard for review in a sufficiency of the evidence claim is “rather 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 a crime beyond a reasonable doubt. Commonwealth v. Quel, 27 A.3d 1033, 1037 (Pa. Super. 2011). In the Crimes Code, Section 312 provides that a court must dismiss a prosecution, if having regard to the nature of the conduct charged and the nature of the attending circumstances, the court finds the conduct of the Defendant was: 4 MD-0081-2018 (1) was within a customary license or tolerance … ; (2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or (3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly … in forbidding the offense. 18 Pa.C.S. § 312(a). The purpose of Section 312 is to remove petty infractions from the reach of the criminal law. Commonwealth v. Moll, 543 A.2d, 1221, 1226 (Pa. Super. 1988). Application of Law to Facts. The Protection from Abuse Order, as agreed, prohibited Defendant from any contact with victim, direct or indirect. It has been proven by the Commonwealth and admitted that Defendant made this contact in violation of a known standing protection order. By agreement, as noted by the striking of paragraph 5, in the protection order there was no exception drawn out for contact with the minor child. Defendant had previously shown that he is quite capable of filing motions on his own behalf, which could have been made in the custodial side of the court if the true intention was for contact with their child; however, he did not. The raising of an error as de minimis infraction, like acceptance of a Presidential pardon, is an admission of wrongdoing. The requirements of Section 312 provide that the court, not the trier of fact, must file a written statement of reasons for the finding of a de minimis except where the Commonwealth is the moving party. 18 Pa.C.S. § 312(b). Essentially, this opinion must state the reason for not finding a de minimis infraction when none appears of record. The conduct of Defendant by his intentional contact with the victim was specifically prohibited and absent the relief Defendant had previously requested in the 5 MD-0081-2018 2017 Motion to Dismiss, there was no custom license or tolerance for his actions. No contact means no contact, it cannot get any simpler. Defendant’s contact with victim is the evil that was to be protected and prevented by the law establishing protection from abuse orders. Indeed, Defendant’s contact actions were specifically envisioned by the General Assembly when they wrote the protection from abuse statute; otherwise, the Act would have no practical effect or enforceability. It was clear from the testimony that Defendant actions met the threshold that warrants his activity being prohibited by the protection from abuse order and then enforced when violated. Defendant was aware of the protective order; he even sought to have it dismissed; and he cannot be heard to complain when it is enforced. By the Court, ________________________ Thomas A. Placey C.P.J. Distribution: Charles J. Volkert, Jr., Esq. Christopher R. Sherwood, Esq. 6