The URL can be used to link to this page

Home My WebLink AboutCP-21-MD-0000393-2013 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JASON WYMEN SEAUX : CP-21-MD-0393-2013 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., September 27, 2013:-- I. Procedural Background Following a hearing onMay 21, 2013, the Defendant was found guilty of indirect criminal contempt of a protection from abuse order dated May 1, 2013. Following receipt of a pre-sentence report, the Defendant was sentenced on May 28, 2013, to pay the costs of prosecution, a fine of $300.00, and undergo a period of incarceration of five months. The Defendant was given credit for time served from May 9, 2013 to the date of sentencing and work release was authorized. The Defendant promptly sought modification of sentence and following consideration of that Motion on July 2, 2013, his sentence was modified to render him eligible for re-entry pursuant to the prison’s earned time requirements. In essence, the Defendant was given the incentive to behave appropriately and work off approximately 20 additional days on his sentence. On August 2, 2013, the Defendant filed a Notice of Appeal. In his Concise Statement, the Defendant challenges both the sufficiency and the weight of the evidence. CP-21-MD-0393-2013 II. Discussion We are constantly reminding ourselves of the need for judicial patience. Posted on the entrance door to the bench is an excerpt of Sir Francis Bacon’s essay Of Judicature, wherein he stresses the need for judges to possess “patience and gravity of hearing” so that no party will say “his counsel or proofs were not heard.” Being slow to learn, we have an additional laminated reminder on the bench, courtesy of Justice Curtis Bok, who stated in his essay, I Too Nicodemus, “the first signs of judicial taxidermy are impatience with [supposedly] trivial matters …” Indirect criminal contempt is no trivial matter, and we listened patiently to Defendant’s counsel and proofs. In addition to a full hearing on the merits, we afforded him two bites at the sentencing apple. Although we do not question the right to appeal because we do not always get it right, this boilerplate appeal tests our patience. Therefore, in the interest of judicial economy, we omit a boilerplate recitation of the legal standards for sufficiency/weight challenges, with which this court is familiar, and proceed to the heart of the matter. We suggest that our findings at the hearing as well as our statements at sentencing suffice to demonstrate that we did not abuse our discretion as fact- 1 finder. Nevertheless, to the extent we failed to make it clear to the Defendant, and so as not to leave the appellate court wondering, we expound on those findings herein. 1 See In Re: Indirect Criminal Contempt, Notes of Testimony, May 21, 2013 at 33 and 34 and In Re: Indirect Criminal Contempt Sentence, Notes of Testimony, May 28, 2013 at 5 and 6. -2- CP-21-MD-0393-2013 First, with respect to the sufficiency of the evidence, the charge of indirect criminal contempt of a PFA order requires the Commonwealth to prove the following: 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 was volitional; and 4) The contemnor acted with wrongful intent. Commonwealth v. Ashton, 824 A.2d 1198 (Pa. Super. 2003). As to clarity, paragraph 3 of the temporary order, dated May 1, 2013, prohibits “ANY CONTACT” with the Plaintiff and paragraph 4 states “Defendant shall not contact Plaintiff … by telephone or by any means, including through 2 third persons.” Defendant was served with a copy of the order at the Cumberland County Prison on May 1, 2013 at 2:37 p.m. by a deputy sheriff. Knowing he was not to contact the victim, the Defendant used his mother’s 3 cellphone to call the victim in the evening of May 1, 2013. On May 4, 2013, he 4 used his own phone to leave a voicemail with the victim. Finally, the Defendant made repeated attempts between May 2 and 4, 2013 to contact the victim by 5 calling her sister. We found these acts were not only volitional and knowing, but also that they were made with wrongful intent. In fact, if we had any doubts about the Defendant’s intent, his testimony dispelled them, as we relate below. Second, regarding the credibility of the testimony, our appellate courts have espoused that such an assessment properly falls under a weight of the 2 Commonwealth Exhibit 1. 3 N.T. May 21, 2013 at 5-6 and 30 4 N.T. May 21, 2013 at 6. 5 N.T. May 21, 2013 at 14-16. -3- CP-21-MD-0393-2013 evidence challenge, wherein the fact-finder determines what evidence is to be believed. Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006). Perhaps, we could have been more clear to the Defendant, but to put it mildly, his explanation and denials were not credible. First of all, Defendant’s denial that st6 he even placed a call to the victim on May 1 lacked all credibility. Had he admitted that he called to commiserate over the death of his twin brother, we might have given him a pass a la Commonwealth v. Haigh, 874 A2d. 1174 (Pa. Super. 2005), wherein the Defendant’s inquiry of the victim’s health in open court was found to not possess wrongful intent. Instead, Defendant baldly lied on the stand, asserting that he never called the victim, thinking he would be safe behind 7 the defense of the phone being “locked in the warden’s office.” However, the victim’s rebuttal testimony clarified that the call she received from the Defendant st8 on May 1 was from his mother’s cell phone. In short, Defendant’s half-truth (not on my phone) served only to confirm our assurance that the Defendant was deceitful with the court. Similarly, the Defendant’s “I’m-too-smart-to-violate-a-PFA” defense was unconvincing. In court, the Defendant stated calmly and with self-control, “I know the severity of a PFA, you know. I’m not going to go to – I’m not trying to do six months in jail to tell somebody I love them or to do six months in jail to try to get 9 clothes that I already have, you know.” Unfortunately, for the Defendant, the court does know. We know all too well that outside of the courtroom passion 6 N.T. May 21, 2013 at 20 7 Id. 8 N.T. May 21, 2013 at 30 9 N.T. May 21, 2013 at 25. -4- CP-21-MD-0393-2013 runs rough shot over common sense. Applying our experience to this case, we concluded: The defendant may indeed know all about PFA’s, and I would say that there are probably thousands of defendants in PFA actions that know all about PFA’s, that know all about the six months, that know all about the direction not to contact directly or indirectly the victims involved, but simply because they know all about them doesn’t mean they abide by them. Knowing about what is in a PFA and abiding by it are two separate things, and unfortunately, Mr. 10 Seaux, for you, you have failed to abide by the PFA. Thus, it almost goes without saying that we found the victim and her sister to be credible. Their testimony demonstrated beyond a reasonable doubt that Defendant violated the terms of the PFA between May 1 and 4, 2013. III. Conclusion In light of the foregoing discussion, it is clear that we are satisfied not only that the evidence was more than sufficient to convict the Defendant, but also that our finding of guilt was fully supported by the weight of the evidence. By the Court, Albert H. Masland, J. Matthew P. Smith, Esquire Assistant District Attorney F. Clay Merris, IV, Esquire For Defendant :sal 10 N.T. May 21, 2013 at 34. -5-