Com. v. Peters, J. ( 2022 )

J-A29028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN BRADLEY PETERS, SR. :
:
: No. 661 WDA 2021
Appeal from the Judgment of Sentence Entered April 28, 2021
In the Court of Common Pleas of Clarion County Criminal Division at
No(s): CP-16-MD-0000010-2021
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: APRIL 27, 2022
John Bradley Peters, Sr., appeals from the judgment of sentence
imposed after a trial court convicted him of indirect criminal contempt (“ICC”)
for violating an existing protection from abuse (“PFA”) order.1 We affirm.
We glean the following from the record. Prior to the subject incident,
Appellant and his wife, Stacey Peters, separated. Of relevance to the
underlying incident, Ms. Peters purchased a residence in Sligo, Pennsylvania,
to restore and rent to third parties. Before the parties’ separation, Appellant
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 This order was entered pursuant to the PFA Act, 23 Pa.C.S. §§ 6101-6122.
“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) (cleaned up).
J-A29028-21
was involved in renovating the property. However, due to his unfinished work,
the residence was not habitable.2 As a result of an incident involving
Appellant, Ms. Peters, and their adult son, John Bradley Peters, Jr. (“Junior”),
Appellant was arrested on assault charges and proceeded to trial. After he
was acquitted, Ms. Peters sought a PFA order. On October 30, 2020, a three-
year final PFA order was issued in Jefferson County, which prohibited Appellant
from having any contact with Ms. Peters. Thereafter, Appellant initiated
divorce proceedings. Ms. Peters retained ownership of the Sligo residence.
On February 9, 2021, Ms. Peters and Junior drove in separate vehicles
to the Sligo residence to pick up some items Ms. Peters had stored there.
When they arrived, two cars they did not recognize were parked at the
property, so Junior stopped his vehicle in the street and Ms. Peters stopped
behind him. Ms. Peters rolled her window down and Junior came over to talk
to her. At the same time, Appellant walked out of the residence and directly
towards Ms. Peters’ vehicle. Appellant told Junior that he was not to come in
the residence and then continued to proceed towards Ms. Peters. When
Appellant was about four feet from her vehicle, she asked him what he was
doing there. Appellant stopped in the road and said that he owned the house
____________________________________________
2 Specifically, walls had been removed, a water pipe had burst, the gas and
water utilities had been shut off, and the electric service did not extend to the
second floor.
-2-
J-A29028-21
and lived there.3 Ms. Peters and Junior both called the police and Appellant
walked away. Junior returned to his vehicle, and he and Ms. Peters drove to
a nearby gas station to wait for the police to arrive.
According to Appellant, he was staying at the Sligo residence
temporarily to check the condition of the house and to repair his vehicle.
However, when Ms. Peters subsequently entered the Sligo residence, she
discovered a heater, television, bed, small refrigerator, toaster oven, various
kitchen utensils, and food. Additionally, Appellant had purchased a modem
and/or router five days before the incident and connected the residential
network to the Internet. Since the electricity did not reach the second floor,
Appellant had run approximately four extension cords from the first floor to
the second floor.
As a result of the foregoing interaction, Appellant was arrested for
violating the PFA order. Following a hearing, the trial court found Appellant
guilty of ICC and sentenced him to pay a fine. The trial court did not impose
a period of incarceration or probation. Appellant filed a post-sentence motion,
which the trial court denied in part and granted in part.
____________________________________________
3 At the subsequent trial, Appellant testified that he did not speak with Ms.
Peters that day. However, Trooper Joshua McGinnis, one of the responding
officers, testified that Appellant answered affirmatively when asked if the
conversation between him and Ms. Peters occurred as described herein.
-3-
J-A29028-21
This timely filed appeal followed. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.4 Appellant raises the following issues:
1. That the trial court erred in convicting [Appellant] of [ICC], and
subsequently not finding that said verdict was against the weight
of the evidence presented during the trial.
2. That the trial court erred in concluding that sufficient evidence
was presented during [Appellant’s] trial to establish each of the
elements necessary to sustain a conviction for [ICC].
3. That the trial court erred in convicting [Appellant] of [ICC],
namely in that any potential violations were only de minimis in
nature, and thus should have been dismissed as a matter of law.
Appellant’s brief at 5 (unnecessary capitalization omitted).
We consider these issues in reverse order. Appellant argues that the
ICC charge should have been dismissed as a de minimis violation pursuant to
18 Pa.C.S. § 312. Appellant’s brief at 16.
“We review a trial court’s failure to characterize an appellant’s conduct
as de minimis for an abuse of discretion.” Commonwealth v. Sandoval,
266 A.3d 1098, 1104 (Pa.Super. 2021) (cleaned up). Section 312 provides
as follows:
(a) General rule.--The court shall dismiss a prosecution if,
having regard to the nature of the conduct charged to constitute
an offense and the nature of the attendant circumstances, it finds
that the conduct of the defendant:
____________________________________________
4 At the direction of this Court, the trial court filed a supplemental opinion.
See Commonwealth v. Peters, ___ A.3d ___, 2022 WL 704263 (Pa.Super.
filed March 9, 2022) (non-precedential decision).
-4-
J-A29028-21
(1) was within a customary license or tolerance, neither
expressly negatived by the person whose interest was
infringed nor inconsistent with the purpose of the law
defining the offense;
(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 or other authority in forbidding the offense.
(b) Written statement.--The court shall not dismiss a
prosecution under this section without filing a written statement
of its reasons, except that if the attorney for the Commonwealth
is the moving party for such dismissal no such written statement
need be filed.
18 Pa.C.S. § 312. “The purpose of Section 312 is to remove petty infractions
from the reach of the criminal law. An offense alleged to be de minimis in
nature should not be dismissed where either harm to the victim or society in
fact occurs.” Sandoval, supra at 1104 (cleaned up).
In Appellant’s post-sentence motion, he argued that the ICC charge
should have been dismissed as de minimis. On appeal, Appellant elaborates
that the violation should be classified as a petty infraction and de minimis
because the encounter “did not cause harm to the victim or society[,]” and
thus “was not the type intended to carry the stigma of a criminal conviction.”
Appellant’s brief at 17.
In rejecting Appellant’s claim that the violation was de minimis, the trial
court concluded that none of the circumstances in § 312 apply. Regarding
Appellant’s argument that the encounter did not harm the victim or society,
-5-
J-A29028-21
the court found the conduct was not trivial and, in fact, threatened the harm
sought to be prevented by the PFA order:
The subject Order is intended to prevent future contact which may
place a victim in reasonable fear of abuse, even when a defendant
does not speak words which threaten harm. Here, [Ms.] Peters
testified that she was scared when [Appellant] approached and
got within four feet of her, apparently due to a history of abuse.
It is irrelevant that [Appellant] did not say he was going to harm
her. The [PFA order] and the [PFA] Act do not include an
exception when a defendant speaks words which are non-
threatening.
Trial Court Supplemental Opinion, 3/15/22, at unnumbered 4. Moreover, the
court considered that despite the PFA order requiring Appellant to avoid
situations where he could reasonably encounter Ms. Peters, Appellant
occupied the Sligo residence with the knowledge that she “owned the house
and had not given him permission to stay there and that she may come to the
house.” Id.
Appellant’s “interpretation would eviscerate th[e PFA order’s] purpose,
as all violations of the order that did not result in physical . . . harm to the
victim would be de minimis.” Commonwealth v. Cooper, 217 A.3d 401(Pa.Super. 2019) (non-precedential decision at 8); cf. E.K., supra at 522
(“Because the goal of the PFA Act is to prevent physical and sexual abuse, a
victim does not have to wait for physical or sexual abuse to occur for the PFA
Act to apply[.]”). We agree with the trial court’s analysis and hold that it did
not abuse its discretion in concluding Appellant’s conduct was not de minimis.
-6-
J-A29028-21
We next examine Appellant’s sufficiency challenge. In doing so, we
must determine “whether, viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is sufficient evidence to
enable a fact-finder to find every element of the crime beyond a reasonable
doubt.” Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015)
(citations omitted). “In applying the above test, we may not weigh the
evidence and substitute our judgment for that of the fact-finder. Id. In
addition, the evidence “need not preclude every possibility of innocence.” Id.The Commonwealth may meet its burden by wholly circumstantial evidence
and “any doubt 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.” Id.Moreover, “in applying the above test, the entire record must be evaluated
and all evidence actually received must be considered.” Id. 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.” Id.The PFA Act permits a court to punish and hold in contempt a defendant
charged with ICC for violating a PFA order. See 23 Pa.C.S. § 6114(a). To
establish ICC, the Commonwealth must prove the following four elements:
“(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
-7-
J-A29028-21
(4) the contemnor must have acted with wrongful intent.” Commonwealth
v. Walsh, 36 A.3d 613, 618 (Pa.Super. 2012) (citation omitted).
Appellant concedes that the first two elements were proven beyond a
reasonable doubt. Appellant’s brief at 12. However, he argues the
Commonwealth failed to prove the contact was volitional or that his actions
on “that day were committed with wrongful intent.” Id. at 12-13. In support,
Appellant relies on this Court’s decision in Commonwealth v. Haigh, 874
A.2d 1174 (Pa.Super. 2005). Appellant’s brief at 13. In Haigh, the defendant
was prohibited from having contact with his wife. However, at a PFA violation
hearing, he engaged in conversation with his wife under the belief that the
PFA order was relaxed in the courtroom context and where he only spoke out
of concern for his wife’s health.
On appeal to this Court, we observed that “[i]t is imperative that trial
judges use common sense and consider the context and surrounding factors
in making their determinations of whether a violation of a court order is
truly intentional before imposing sanctions of criminal contempt.” Haigh,
supra at 1177 (emphasis in original). Given the presence of a judge, deputy
sheriff, prosecutor, and other persons in the courtroom, we concluded that
acting intentionally in violation of the PFA order would have been irrational.
Critically, however, the trial judge had specifically found the defendant rational
enough on that day to enter guilty pleas. Thus, “[u]nder the peculiar
circumstances” of that case, and “because we conclude[d] that the record
d[id] not support the determination that [the defendant] intended to violate
-8-
J-A29028-21
the final PFA order and because the infraction was both de minimis and non-
threatening, we [we]re constrained to hold that the trial court did abuse its
discretion in convicting [defendant] of [ICC].” Id. at 1178 (emphasis in
original).
In the instant case, the trial court “imputed wrongful intent by virtue of
the substantial certainty that [Appellant’s] actions would place him in contact
with the victim in violation of the PFA [o]rder.” Trial Court Opinion, 7/9/21,
at unnumbered 3. In concluding there was sufficient evidence to find
Appellant guilty, the court observed that the PFA order was clear, that “[n]o
contact means no contact[,]” and it essentially came down to “a credibility
question[.]” N.T., 3/24/21, at 87. By staying at the Sligo residence for five
days, the trial court found Appellant “set himself up to have contact with [Ms.
Peters]” as follows:
[Appellant] said he had no idea she was going to be there, but he
knew things were stored there. He knew his belongings were
stored there. So certainly there was the risk that she was going
to be there, which he knew. He exposed himself to that risk.
He put himself in the position where there was the possibility
of having contact with her, and I think the PFA Order is clear
enough that he was to avoid any realistic possibility that he would
be in contact with her.
And he knew that he was to avoid being in a situation where
he may have contact with her. So it wasn’t entirely inadvertent.
It wasn’t entirely unexpected.
With regard to whether he approached and talked with her,
I find that he did, based on the testimony of [Ms. Peters and
Junior], and especially Trooper McGinnis who said this is what
[Appellant] told him, that he did talk with her.
-9-
J-A29028-21
Id. at 89.
“[W]rongful intent can be imputed by virtue of the substantial certainty
that by [engaging in the conduct], he would be in contact with her in violation
of the PFA [o]rder.” Commonwealth v. Brumbaugh, 932 A2d 108, 111
(Pa.Super. 2007). Here, the terms of the PFA order clearly delineated the
conduct prohibited and Appellant does not contest his knowledge of this order.
By staying for several days at a residence owned by Ms. Peters and used
actively by her for storage, it was reasonably certain that Appellant would
encounter her. Moreover, when she did arrive and stop her vehicle in the
street outside the residence, Appellant approached her vehicle, stopped four
feet away in the street, and stated that he was living there and he owned the
residence. Thus, unlike the defendant in Haigh, Appellant did not approach
Ms. Peters out of concern for her health in the presence of various officers of
the court. Clearly, this contact was in violation of the PFA order and Appellant,
who testified that he avoided responding to text messages from Ms. Peters in
order to remain compliant with the PFA order,5 was fully aware that direct
contact with Ms. Peters would violate the PFA order. Accordingly, when viewed
in the light most favorable to the Commonwealth, the evidence adduced at
trial established beyond a reasonable doubt that Appellant intentionally
____________________________________________
5 We discuss the context for these messages as part of Appellant’s weight
challenge, infra.
- 10 -
J-A29028-21
engaged in conduct that violated the terms of the PFA order. Thus, the
evidence was sufficient to sustain his ICC conviction.
Finally, we address Appellant’s weight challenge. Our standard of
review when presented with a weight of the evidence claim is distinct from
that applied by the trial court:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of
the evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (cleaned up).6 “An
abuse of discretion is not a mere error in judgment but, rather, involves bias,
ill will, partiality, prejudice, manifest unreasonableness, or misapplication of
law.” Commonwealth v. Kane, 10 A.3d 327, 333 (Pa.Super. 2010).
According to Appellant, there was no evidence presented to establish
that he had “any intention of having contact with Ms. Peters on February 9,
2021.” Appellant’s brief at 10. Appellant argues that “[c]onflicting testimony
____________________________________________
6 We recognize the inherent incongruity in asking a trial judge to conclude that
his non-jury decision shocked his own conscience. Nonetheless, this Court
applies the same standard of review to weight claims regardless of whether
the trial judge presided over a jury or non-jury trial.
- 11 -
J-A29028-21
was presented regarding the interaction” between Appellant and Ms. Peters,
and that “at most, [Appellant] simply responded to [her] question . . . before
walking back inside the home.”7 Id. at 11. Further, he avers that “Ms. Peters’
engaging with [him] that day fit a pattern of similar behavior” in that she had
previously texted Appellant in response to him filing divorce proceedings,
purportedly requested to be his friend on Facebook accidentally, and contacted
Appellant’s sister about returning property he had requested. Id. at 11-12.
Appellant claims that his non-responsiveness to these earlier entreaties by Ms.
Peters “supports the contention that he had no willful contact in violation of
the PFA [order] on February 9.” Id. at 12.
The trial court, upon evaluating the evidence presented, found that Ms.
Peters and Trooper McGinnis offered credible testimony, while Appellant did
not. See Trial Court Supplemental Opinion, 3/15/22, at unnumbered 2. In
rejecting Appellant’s version of events, the court concluded that Appellant’s
stay at the Sligo residence was not temporary and that he had “voluntarily
put himself in a position where he realistically could have contact with Ms.
Peters and he did have contact with her, in violation of the PFA Order.” Id.
____________________________________________
7 Appellant is referencing the inconsistencies between Appellant’s testimony
and that of Ms. Peters, Junior, and Trooper McGinnis, discussed supra.
Specifically, Appellant testified that he did not approach Ms. Peters’ vehicle or
speak with her that day. See N.T., 3/24/21, at 62-63, 69-70. Ms. Peters and
Junior testified consistent with the recitation supra that Appellant did approach
and speak with Ms. Peters. Finally, Trooper McGinnis testified that Appellant
told him that Appellant had a conversation with Ms. Peters consistent with the
one recounted by Ms. Peters and detailed supra. Id. at 74-75.
- 12 -
J-A29028-21
at 5. The court denied Appellant’s weight claim, holding that “to ignore
[Appellant’s] testimony or to give it equal weight with all the facts is not to
deny justice[ and t]here are no facts which are so contrary to the other
evidence as to shock one’s sense of justice.” Id.
As observed supra, “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.” Gonzalez, supra at 716. Upon review of the
certified record, we conclude the trial court did not abuse its discretion in
concluding that Appellant’s verdict was not against the weight of the evidence.
Accordingly, Appellant is not entitled to relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2022
- 13 -