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HomeMy WebLinkAbout2005-2091 Civil VALERIE LYNN BEASTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V.: : GREGORY A. EBERSOLE, : NO. 2005 – 2091 CIVIL TERM Defendant : IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., October , 2007 On November 20, 2006 we found the defendant guilty of violating a protection from abuse order which had been entered on May 5, 2005. He was scheduled to be sentenced on January 2, 2007. However, because of the defendant’s unavailability, the 1 date was postponed several times. On February 28, 2007 we sentenced him to undergo a period of supervised probation for 6 months consecutive to any sentence he is currently serving. The defendant filed timely post sentence motions. This appeal followed our denial of those motions. Defendant contends that 1) we erred in finding that his conduct amounted to contact with the plaintiff; 2) there was insufficient evidence to show that he violated the order; 3) we erred in denying his post sentence motion for a new trial; and 4) the protection from abuse order is not clear and definite as to what constitutes third party contact. We will address each of those issues in the opinion that follows. 1 The instant charge served as the basis for his parole being revoked on prior federal charges. He was incarcerated in an out of state federal institution and it was difficult to arrange his appearance in this Court. NO. 2005 – 2091 CIVIL TERM FACTUAL BACKGROUND The origins of this case date back to a short lived relationship between the parties that ended more than four years ago. Plaintiff is a registered nurse who is now enrolled in law school. The defendant is a retired Navy Seal who wants to attend law school. At the time of their breakup the plaintiff made certain allegations of criminal wrongdoing against the defendant. Based upon those allegations he was arrested and charged by the local police. Those charges were eventually dismissed by the county prosecutor. However, as a result of his arrest, evidence was obtained which served as the basis for a conviction in federal court for a firearms violation. The defendant has consistently maintained that the allegations which led to his arrest (and ultimately the entry of the first protection from abuse order) were fabrications 2 concocted by the plaintiff. He has since been obsessed with holding the plaintiff 3 accountable for her “lies”. His obsession led to at least one contempt conviction for 4 violating that first order. After the first order expired the defendant continued his crusade for “justice”. As part of his crusade he created and wore a sweatshirt with plaintiff’s picture and the words 5 “Lying Skank” appearing on the front. His unwillingness to let the matter die eventually led to the entry of the instant order on May 5, 2005. We have great respect for the defendant’s service to our country. However, we consider his quixotic search for justice to be a fool’s errand which will likely end in 2 The original protection from abuse order was entered at 4215 Civil 2003. See the “Petition for Protection from Abuse” filed in the instant case at paragraph 16(a). 3 The fact that the local prosecutor declined to pursue the state charges reinforced the defendant’s opinion that he is the victim in this case. 4 See “Petition for Protection from Abuse” filed in the instant case at paragraph 16 (a). 5 Id. at paragraph 15. 2 NO. 2005 – 2091 CIVIL TERM tragedy. At the time we entered the instant protection from abuse order the following exchange took place: THE COURT: Okay. Now, Mr. Ebersole, . . . when I sign this order, you may not have contact with her. You can – and that includes you can’t e- You can’t make threats about her to other people. mail her. . . . I’ve been doing this a lot of years, and this obsession can only lead to no good if the two of you are in contact. . . . MR. EBERSOLE: I need to clarify one thing, Your Honor. This is not an obsession. This is not. Look at that woman. She’s about 200 pounds. I don’t want anything to do with that woman. She’s hideous. This is not an obsession. I have no attraction to her. . . . . . . THE COURT: Let me be clear with what I meant by obsession, Mr. Ebersole. . . . The obsession I was talking about is not with this woman. The . . .. . . obsession I was talking about is an obsession with justice. This system, sir, is not perfect. It is the best in the world, but it’s not perfect because it’s manned by human beings. You served your country, and you served it honorably. Please don’t throw that . . . away in a quest for justice that may not be there. I had a client and friend of mine who served his country and served it honorably. And he went through the same kind of quest that you’re going through now. And it ended up tragically and horribly; and I don’t want to see that happen to you, sir. . . . The last thing I want to do, sir, the last thing I want to do is to put you in jail for violating this order that I just entered. . . . MR. EBERSOLE: I just need to clarify one thing. Valerie Beaston is part of that quest because she needs to be held accountable for the lies she told. If she is not held accountable - - you said the system isn’t perfect. It’s not perfect. But somewhere along the line the only way the systems get better is when people make a stand and sometimes that takes self sacrifice. . . . My service to my country, I learned a lot of things. One of the . . . things I learned is self sacrifice for a cause. I had a golden opportunity coming out of the SEALS after 20 years. I could have done anything. She changed that for me. My service to my country did not count one bit when it came from one local lying . . . prostitute drug dealing woman and my service to my country was used against me. And that - - that’s my issue. And the thing is that there has to be - - there has to be justice. 3 NO. 2005 – 2091 CIVIL TERM At some point, she needs to be held accountable. THE COURT: Okay. I’m sorry to hear that you feel that way. Court is adjourned. 6 (emphasis added). In September 2005 the defendant was convicted of indirect criminal contempt for violating the order. On October 25, 2005 he was sentenced to serve 3 to 6 months because he would not give us his word that he would drop his obsession and move on with his life. At the time of sentence we had the following exchange with the defendant: THE COURT: I will parole you when you have given me your word that you will put this matter behind you and move on with your life. I will not parole you until then. You are a man of your word. When I get your word, I will cut the order paroling you with no contact with Miss Beaston and you move on. Until I get that, I do not feel safe; and I’ll have to keep you behind bars. Okay. So we understand each other? THE DEFENDANT: Yes, sir, we do. 7 THE COURT: Good luck, Mr. Ebersole. He elected to serve his maximum sentence rather than promise to drop his elusive “quest for justice”. Things were quiet for several months after the defendant was released from prison in April of 2006. However on November 1, 2006 plaintiff filed a petition to extend the protection from abuse order which was scheduled to expire on November 5. We extended the order pending a hearing on the matter which we scheduled for November 16, 2006. 6 Transcript of Proceedings, May 5, 2005, pages 48 to 52. 7 Transcript of October 25, 2005, Sentencing Proceedings, p. 4. 4 NO. 2005 – 2091 CIVIL TERM Shortly after he was served with the petition for extension, defendant engaged in the conduct giving rise to the instant charge of indirect criminal contempt. He sent a disturbing e-mail to plaintiff’s sister which provided in relevant part as follows: Sometimes in life, people wish they would have said something to another in hind site after there is no longer an opportunity to do so. Sometimes what keeps people from opening up to each other or perhaps in keeping a conflict going is that they do not allow themselves to realize that those other people will not always be around and that the time we all have is very short. It is only after the others are gone when the old “I wish I would have told them”. . . . kicks in. I have always spoken my mind to you and Steve and was very sad to see that the both of you let the skank keep you from continuing our friendship. The skank has just struck again to escalate the conflict with me. At there was plenty of time for the justice to which I have first given my most solemn vow , but her continued efforts to keep this war going have sabotaged any opportunities she might have been awarded to settle this. It is clear that she will never decide to do the right thing even if given a hundred years to consider it. Her Therefore, if actions have drastically shortened the time line. there is anything you would ever wish to say to either of us, I suggest you do it soon. 8 (emphasis added). The e-mail was made even more disturbing by the fact that the defendant’s e-mail address is “vlbrnkiller”. When asked if the e-mail address is of any significance to her, the plaintiff responded: “My initials, plus I’m an R.N., plus killer, 9 meaning he’s going to kill me.” In addition the defendant contacted several of the plaintiff’s My Space friends to be added as friends on his My Space site. The defendant’s site identified him as the 8 Commonwealth’s Exhibit # 1. 9 Transcript of November 20, 2006, Proceedings, p. 12. 5 NO. 2005 – 2091 CIVIL TERM 10 “Skankn8er”. The “Skank” refers to the plaintiff and the “n8er” is like 11 “terminator”, making him the “Skankinator.” His site also contained the headline “Justice is Coming” and played the Guns ‘N Roses song “I Used to Love Her But I Had 12 to Kill Her.” Finally, posted on his site, inter alia, was the following message: Above all I vowed justice against my false accuser, and I have never broken my word of honor. I am just hoping to live a meaningful life in the interim and perhaps to do good along the way. Because of those desires, I was hoping that there would be lots of time left and that perhaps that my ex-lover/new enemy would develop a conscience and decide to come clean and end the war she started. Unfortunately, it seems she has chosen not only to not admit her first wrongs, but also, is continuing to escalate the Therefore, I honestly don’t know how much time is conflict. left before she forces my hand. 13 (emphasis added). Plaintiff received several calls from her friends directing her to those disturbing postings. Sufficiency of the Evidence Defendant’s first challenge is to the sufficiency of the evidence. In order to support a finding of indirect criminal contempt for violating a Protection from Abuse order, the following four elements must be proven beyond a reasonable doubt: (1)the order must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed or the conduct prohibited; (2) the contemnor must have had notice of the specific order or decree, (3) the act constituting the violation must have been volitional, and (4) the contemnor must have acted with wrongful intent. 10 Commonwealth Exhibit # 2. 11 Transcript of November 20, 2006, proceedings, p. 11. 12 Transcript of November 20, 2006, proceedings, p. 9 and Commonwealth Exhibit 2. 13 Commonwealth Exhibit # 2. 6 NO. 2005 – 2091 CIVIL TERM Diamond v. Diamond, 715 A.2d 1190, 1196 (Pa.Super 1998). We were satisfied that each had been proven in the instant case. On May 5, 2005, we entered a final Order of Court which provided, inter alia, that “(d)efendant is prohibited form having ANY CONTACT with plaintiff . . . at any location by telephone or by any other means, including through third persons.” (emphasis in original). It went on to put defendant on notice that “VIOLATION OF THIS ORDER MAY RESULT IN YOUR ARREST ON THE CHARGE OF INDIRECT CRIMINAL CONTEMPT WHICH IS PUNISHABLE BY A FINE OF UP TO $1000 AND/OR A JAIL SENTENCE OF UP TO SIX MONTHS.” (emphasis in original). There is no dispute as to the second and third elements of the offense. The defendant was properly served with a copy of the original order as well as the subsequent order extending it. Furthermore, he voluntarily 1) sent the e-mail to plaintiff’s sister; 2) created the My-Space web site; and 3) contacted her friends to draw their attention to his My-Space postings. Defendant challenges the sufficiency of the evidence with regard to the first and fourth elements. Specifically he argues that 1) his conduct cannot be considered contact with the plaintiff; 2) he did not intend to contact the plaintiff; and 3) the order was not clear as to what constitutes third party contact. After hearing the evidence and reviewing the exhibits we were satisfied beyond a reasonable doubt that the defendant’s conduct amounted to contact with the plaintiff through third parties. We were also satisfied that he was aware (and intended) that his messages to the third parties would be relayed by them to the plaintiff. It would be 7 NO. 2005 – 2091 CIVIL TERM irrational to conclude otherwise. No family member or friend could reasonably be expected to read those disturbing messages and not warn the plaintiff. Finally, defendant argues that the order was not clear and definite as to what constitutes third party contact. We disagree. Third party contact clearly means contact with another party which the defendant intends to be passed on to the plaintiff. If the wrongful intent is not there, the case law is clear that the conduct cannot be punished. See Diamond, supra. As noted above we were satisfied that the defendant knew and intended that his threats would be passed on to the plaintiff. New Trial The defendant filed a Motion for New Trial based upon after discovered evidence. The evidence was an exchange of e-mails between the defendant and the plaintiff’s sister which occurred in June of 2006. Plaintiff’s sister begins her e-mail by stating “we are not 14 communicating with the skank”. Defendant contends that this e-mail would prove his “expectation and belief that any correspondence with (her) would not be forwarded or 15 communicated to” the plaintiff. The law with regard to after discovered evidence is clear. A new trial will be awarded only if: 1)the evidence has been discovered after trial and could not have been obtained prior to the conclusion of trial by the exercise of due diligence; 2)the evidence is not merely corroborative or cumulative; 3)the evidence will not be used solely for impeachment purposes; and 4)the evidence is of such a nature and character that a different verdict will likely result if a new trial is granted. 14 See attachment to “Defendant’s Post-Sentence Motion for New Trial Based on After-Discovered Evidence.” 15 “Defendant’s Post-Sentence Motion for a New Trial Based on After-Discovered Evidence”, paragraph 7(b). 8 NO. 2005 – 2091 CIVIL TERM Commonwealth v. Dargan, 897 A.2d 496 at 502. (Pa.Super.2006) quoting from, Commonwealth v. Figueroa, 859 A.2d 793, 799 (Pa.Super. 2004). We were satisfied that the first and third prongs had been met. However, we denied the request because the newly discovered evidence did not meet the second or 16 fourth prongs. At trial we were aware that the plaintiff and her sister were estranged. However, that made no difference. As we noted above, no reasonable person could expect that the threat would not be conveyed. Furthermore, despite the estrangement, we were convinced that the defendant actually intended his threat to be conveyed by her sister to the plaintiff. He specifically told her to do so, telling her that “if there is 17 anything you would wish to say to either of us, I suggest you do it soon.” ___________________ ___________________________ DATE Edward E. Guido, J. CHRISTYLEE PECK, ESQUIRE Office of the District Attorney MICHAEL HALKIAS, ESQUIRE Office of the Public Defender 16 During the course of her testimony we had the following exchange with the plaintiff: THE COURT: I recall from prior hearings in this matter that there was a time when Mr. Ebersole maintained a friendship with your sister and brother-in-law and you didn’t, you were estranged? THE WITNESS: About a year ago, my sister and brother-in-law told Greg never to contact them again, and it was around last Christmas that Wendie and I started speaking again. THE COURT: Do you know if Mr. Ebersole knew that you were back in touch with your sister? THE WITNESS: I don’t know that. Transcript of Proceedings, November 20, 2006, pages 17 – 18. 17 See Commonwealth Exhibit # 1. 9 NO. 2005 – 2091 CIVIL TERM :sld 10