Forcier, G. v. Ball, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GRACE FORCIER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAWN BALL :
:
Appellant : No. 9 EDA 2021
Appeal from the Order Entered November 4, 2020
In the Court of Common Pleas of Northampton County
Civil Division at No(s): No. C-48-PF-2020-00249
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: FILED APRIL 20, 2022
Appellant, Dawn Ball (“Daughter”), appeals from the order entered in
the Northampton County Court of Common Pleas, under the Protection from
Abuse (“PFA”) Act,1 in favor of Appellee, Grace Forcier (“Mother”). We affirm
and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this appeal are as follows.
On April 7, 2020, Mother filed a PFA petition against Daughter. Specifically,
Mother alleged that Daughter broke into her residence, destroyed Mother’s
personal property, and threatened Mother with a knife. Based upon these
allegations, the court issued a temporary PFA order and scheduled a hearing
on the matter. The temporary PFA order advised Daughter not to contact
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1 23 Pa.C.S.A. §§ 6101-6122.
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Mother by any means.
Prior to the hearing, Mother filed three (3) indirect criminal contempt
private complaints. In the complaint filed on May 12, 2020, Mother asserted
that Daughter repeatedly made threatening phone calls to her. In the
complaint filed on June 1, 2020, Mother claimed that Daughter went to the
post office and forwarded Mother’s mail without permission. In the complaint
filed on August 25, 2020, Mother stated that Daughter posted unflattering lies
about her on a website.
Following several continuances, the court conducted a hearing on
November 4, 2020. At that time, the court received testimony from Mother,
who appeared pro se. Daughter appeared with counsel, but counsel advised
her not to testify due to pending criminal charges. (See N.T. Hearing,
11/4/20, at 9). After receiving Mother’s testimony, the court issued a final
PFA order. The order, which remains in effect for three (3) years, directed
Daughter not to abuse, harass, stalk, or threaten Mother. Additionally, the
court found Daughter guilty of indirect criminal contempt based upon Mother’s
May 2020 complaint only. The court sentenced Daughter to thirty (30) days’
imprisonment, and it dismissed the remaining contempt complaints.
Daughter timely filed a pro se notice of appeal on November 23, 2020.
On December 2, 2020, the court ordered Daughter to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. On December 21, 2020,
Daughter timely filed a pro se Rule 1925(b) statement.
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On February 26, 2021, Daughter filed a pro se application for the
appointment of counsel in this Court. In response, we directed the trial court
to determine Daughter’s eligibility for appointed counsel. By order entered
March 31, 2021, the court appointed current counsel to represent Daughter
on appeal.2 Counsel subsequently filed a petition to withdraw and an Anders3
brief with this Court. Counsel filed an amended withdrawal petition on
September 27, 2021.
As a preliminary matter, counsel seeks to withdraw representation
pursuant to Anders and Commonwealth v. Santiago, 602 Pa. 159, 978
A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition the
Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise her of
her right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
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2 Daughter previously filed a pro se petition for leave to proceed in forma
pauperis, which the court granted on December 2, 2020.
3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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to withdraw, this Court makes an independent review of the record to confirm
that the appeal is wholly frivolous.4 Commonwealth v. Palm, 903 A.2d
1244, 1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187
A.3d 266 (Pa.Super. 2018) (en banc).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s reference to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
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4 We note that Daughter’s pro se notice of appeal does not specify whether
she intended to appeal from the final PFA order or the order finding her in
indirect criminal contempt, both of which were filed at the same trial court
docket number. Based upon our review of Daughter’s pro se Rule 1925(b)
statement, it appears that she wanted to challenge both orders. Likewise,
counsel’s Anders brief includes argument surrounding both orders. In light
of the applicable case law governing this Court’s review in an Anders scenario,
we will examine the propriety of both orders as part of our independent review
of the record.
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summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4)
state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel has filed a petition to withdraw and Anders
brief. The brief states counsel’s conclusion that the appeal is wholly frivolous.
Counsel supplied Daughter with a copy of the Anders brief. Counsel also
provided Daughter with a letter explaining her right to retain new counsel to
pursue the appeal or to proceed pro se.
In the Anders brief, counsel provided a statement of facts and
procedural history of the case. Counsel’s argument refers to relevant law and
portions of the record that might arguably support Daughter’s issues. Counsel
further states the reasons for his conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the technical requirements
of Anders and Santiago.
Daughter has not responded to the Anders brief pro se or with newly
retained private counsel. Counsel raises the following issues on Daughter’s
behalf:
Whether [Mother’s] testimony was credible?
Whether there was sufficient evidence to grant a [PFA] final
order?
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(Anders Brief at 3).
On appeal, Daughter argues that the trial court should not have found
Mother’s testimony credible. Daughter emphasizes Mother’s responses to the
questions posed during cross-examination, where Mother admitted to a prior
conviction for crimen falsi. Additionally, Daughter contends that the evidence
was insufficient to support both the final PFA order and the finding of indirect
criminal contempt. We disagree.
When examining a challenge to the sufficiency of the evidence
supporting a PFA order, our standard of review is as follows:
When a claim is presented on appeal that the evidence was
not sufficient to support an order of protection from abuse,
we review the evidence in the light most favorable to the
petitioner and granting her the benefit of all reasonable
inferences, determine whether the evidence was sufficient
to sustain the trial court’s conclusion by a preponderance of
the evidence. This [C]ourt defers to the credibility
determinations of the trial court as to witnesses who
appeared before it.
Fonner v. Fonner, 731 A.2d 160, 161 (Pa.Super. 1999) (internal citations
and quotation marks omitted).
“The purpose of the [PFA] Act is to protect victims of domestic violence
from those who perpetrate such abuse, with the primary goal of advance
prevention of physical and sexual abuse.” E.K. v. J.R.A., 237 A.3d 509, 519
(Pa.Super. 2020) (quoting Buchhalter v. Buchhalter, 959 A.2d 1260, 1262
(Pa.Super. 2008)). The PFA Act defines abuse as follows:
§ 6102. Definitions
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(a) General rule.—The following words and phrases
when used in this chapter shall have the meanings given to
them in this section unless the context clearly indicates
otherwise:
“Abuse.” The occurrence of one or more of the following
acts between family or household members, sexual or
intimate partners or persons who share biological
parenthood:
* * *
(2) Placing another in reasonable fear of
imminent serious bodily injury.
23 Pa.C.S.A. § 6102(a)(2).
“In the context of a PFA case, the court’s objective is to determine
whether the victim is in reasonable fear of imminent serious bodily injury….”
Buchhalter, supra at 1263 (quoting Raker v. Raker, 847 A.2d 720, 725
(Pa.Super. 2004)). “The intent of the alleged abuser is of no moment.” Id.“While physical contact may occur, it is not a prerequisite for a finding of abuse
under [Section] 6102(a)(2) of the [PFA] Act.” Fonner, supra at 163. “[T]he
victim of abuse need not suffer actual injury, but rather be in reasonable fear
of imminent serious bodily injury.” Burke ex rel. Burke v. Bauman, 814
A.2d 206, 208 (Pa.Super. 2002) (quoting DeHaas v. DeHaas, 708 A.2d 100,
102 (Pa.Super. 1998), appeal denied, 557 Pa. 629, 732 A.2d 615 (1998)).
Additionally, “[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 decision.”
Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa.Super. 2002) (quoting
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Williams v. Williams, 681 A.2d 181, 183 (Pa.Super. 1996), aff’d, 554 Pa.
465, 721 A.2d 1072 (1998)). “We will reverse a trial court’s determination
only when there has been a plain abuse of discretion.” Id. “An abuse of
discretion is not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record.” Commonwealth v. Griffiths, 15 A.3d 73, 76
(Pa.Super. 2010) (quoting Commonwealth v. Dent, 837 A.2d 571, 577
(Pa.Super. 2003), appeal denied, 581 Pa. 671, 863 A.2d 1143 (2004)).
Where a PFA order is involved, an [indirect criminal
contempt] charge is designed to seek punishment for
violation of the protective order. A charge of indirect
criminal contempt consists of a claim that a violation of an
order or decree of court occurred outside the presence of
the court. To establish indirect criminal contempt, the
[petitioner] 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. Lambert, 147 A.3d 1221, 1226 (Pa.Super. 2016)
(internal citations and quotation marks omitted).
Instantly, Mother provided the following testimony about the incident
that prompted her to file the PFA petition:
This is exactly what happened. I was in bed. The dog starts
barking. I get out of bed to see what’s the matter. I go
over to the window. She’s breaking in downstairs. And
when she got in downstairs, because we have a staircase, I
said, “[Daughter], get out of this house right now.” She
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said—she started running after me with a knife.
* * *
She ran after me with a knife and something else in her
hand. And I started running because I know she is not all
there. And I ran into my bedroom. I locked the door. I
hear, crash, banging, screaming. … I was nervous as
anything dialing the 911. And I hear all scratches, her trying
to get in. But I held the door closed and I locked it and she
was trying to break in the door. And I heard her smashing
everything in the hall upstairs….
Then she apparently—the police came. She must have
already left because I didn’t know, I was still in my room
crying hysterically and on the phone with 911.
(N.T. Hearing at 2-3).
Here, Mother recounted a violent episode where Daughter broke into
Mother’s home and chased Mother while brandishing a knife. This behavior
prompted Mother to lock herself in a bedroom and desperately call 911.
Mother’s testimony alone established her reasonable fear of imminent serious
bodily injury. See Burke, supra. To the extent Daughter insists that the
court should not have credited Mother’s testimony, the court was aware of
Mother’s crimen falsi conviction. (See N.T. Hearing at 11-12). Likewise, the
court was aware of Daughter’s theory of the case, which is that she went to
Mother’s home to reclaim certain possessions that Mother had wrongfully
taken from her. (Id. at 6). Nevertheless, the court found Mother credible,
and we see no reason to negate the court’s determination. See Fonner,
supra.Regarding the finding of indirect criminal contempt, the court initially
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confirmed that Daughter was properly served with the temporary PFA order
in April 2020. (See N.T. Hearing at 13). Mother subsequently testified about
Daughter’s behavior in May 2020, indicating that Daughter “constantly” called
from an unknown telephone number. (Id. at 14). During these calls,
Daughter threatened to “get even” with Mother if Mother did not provide
favorable testimony for Daughter in an unrelated legal proceeding. (Id.)
Daughter also threatened to kill Mother and her loved ones. (Id.)
The court evaluated this testimony and concluded that Daughter
committed a volitional act with the requisite wrongful intent. (See Trial Court
Opinion, filed December 30, 2020, at 5). “Given the significance of
[Daughter’s] threats to cause serious bodily harm to [Mother] and her family,”
the court again found Mother to be credible. (Id. at 3). Our review of the
record confirms the court’s conclusions. Because the record supports the
court’s decision, we cannot say it abused its discretion in finding that Daughter
had committed indirect criminal contempt. See Lambert, supra; Kolansky,
supra. Accordingly, we affirm and grant counsel’s petition to withdraw.
Order affirmed. Petition to withdraw is granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
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