Com. v. Risoldi, C. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLAIRE A. RISOLDI
Appellant No. 1864 EDA 2016
Appeal from the Judgment of Sentence June 10, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-MD-0001604-2016
CP-09-MD-0001605-2016
BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 17, 2017
Claire Risoldi appeals from the judgment of sentence, entered in the
Court of Common Pleas of Bucks County, following her conviction for indirect
criminal contempt. 42 Pa.C.S. § 4132. After review, we affirm.
The trial court summarized the factual history of this case as follows:
On October 22, 2013, a fire destroyed the residence known as
[]Clairemont[] which was the home of [Risoldi], her since[-
]deceased husband, her son and daughter-in-law. As this was
the third fire in less than five years, an investigation was begun.
Due to the alleged prominence of defendant and her family in
Bucks County politics, the District Attorney of Bucks County
requested that the Attorney General’s office [(“AG”)], handle the
case. While the AG was presenting its case to the 35th Statewide
Investigating Grand Jury, defendant and other defendants not
listed in this caption were pursuing civil claims against the
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*
Former Justice specially assigned to the Superior Court.
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insurer of []Clairemont[], AIG, for refusing to pay damages
pursuant to the coverage policies in place at the time of the fire.
The AG presented to the grand jury evidence that [Risoldi] had,
among other things, engaged in conduct that constituted witness
intimidation. The AG asserted that she intimidated AIG’s
representative, Mr. O’Keefe, on August 14, 2014[,] when there
was a meeting at a bank to look at jewelry. The AG also
presented evidence to the grand jury that [Risoldi] had engaged
in conduct that would constitute witness intimidation of [another
witness] Tina Mazaheri, Esquire.
The grand jury returned a presentment that recommended
[Risoldi] be charged with witness intimidation of [O’Keefe] and
[Mazaheri]. Following a preliminary hearing, [Risoldi] was held
for court on those charges.
The AG believed that [Risoldi] was aware that it was presenting
its case against her to the grand jury[,] and that she was trying
to influence the testimony of [O’Keefe] and [Mazaheri] before
the grand jury. [Risoldi] has attended all court proceedings and
I speak loud enough that only the hearing impaired would miss
what I say. At my first meeting with the parties and their
counsel I stated:
[I]ntimidation, from this moment forward – I’m old
school. Old school to me means that we conduct
ourselves professionally. It means that counsel
control their clients. It means that counsel for the
Attorney General control police officers, etcetera.
Cases in my view are tried in courtrooms. They are
not tried in the press. And if there is anything that
smacks of witness intimidation from this point
forward, I assure you, it will be dealt with very
swiftly and, if established, very severely.
* * *
When one of the AG’s investigators went to interview a witness,
Mr. Foris, it was learned that [Risoldi] and her investigator had
both contacted [Foris]. The AG charged them with witness
intimidation. I conducted the preliminary hearing and held her
for court on that charge. I did not grant the AG’s request to
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revoke and/or increase her bail despite the admonition I had
stated on March 2, 2015.
* * *
In January of 2016, the AG became aware that [Risoldi] had
contacted a witness, Ms. Greenberg. The AG filed another
motion to revoke [Risoldi’s] bail and a hearing was held on
February 8, 2016. During the hearing it became evident that
[Risoldi] was the beneficiary of the AG being unable to establish
that she was aware that [Greenberg] was a potential witness at
the time of contact. . . . I did not want her to again be the
beneficiary of any misunderstanding as to who was covered by
the term “witness” or what would constituted “contact.” In the
following comments, I set forth what I believed would clarify
improper contact:
THE COURT: While we are mulling over what we did
or did not get, Mr. Connolly, I have the statute in
front of me. Tell me what section of the statute
[Risoldi’s] contact violated. Clearly, she violated
the spirit of what the Court intended, and that
might be more properly viewed under a
contempt analysis than it is under a statutory
analysis.
Believe me, I’m looking to help you, but when I look
at [Section 4952], I’m very hard pressed to find
where the conduct crosses the line based on the
averments of the petition.
and
THE COURT: But what about the contempt? Mr.
McMahon, I, to some extent, feel sorry for you,
trying to control someone who apparently is
uncontrollable. What’s your answer? The clear
intent of the court was no contact.
Mr. McMahon: I agree with that, and the clear
intent of her attorney was no contact also, so
it’s not – it was a multi-layered communication.
and
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THE COURT: So that going forward, any contact
by any means known or that might become
known to Ms. Risoldi’s fertile mind will result in
a contempt proceeding and, of course, you will
remind her that contempt is punishable by jail and
that she just might find herself awaiting trial sitting
in the Bucks County Prison.
Mr. McMahon: Judge, I think that that is an
agreeable situation, and to say that what you
have just said, obviously in her earshot, is not
something I have not said within her earshot,
would also be agreeable.
It is of no help to anybody, myself included, to
have anybody going out and talking to any witnesses
at all. I have explained that to her, and I think we
now know that when we say anybody that is even
mentioned in the discovery, whether they be the
friend of a person mentioned in discovery, whether
they be anybody related to somebody mentioned in
the discovery would all be included in that
prohibited-to-speak-to list going forward.
I would totally agree that, and, in fact, it would
be fair that if, in fact, she does speak to one of those
people from this day forward, I don’t think I would
even file a response.
In April[] 2016, the AG learned that [Risoldi] was having
subpoenas served on witnesses for her upcoming trial. Her
action prompted the AG to file this motion to hold her in
contempt. A hearing was held on June 10, 2016 and I found her
to be in contempt and imposed a jail sentence prompting this
appeal.
Trial Court Opinion, 11/15/2016, at 1-4 (internal citations omitted)
(emphasis in the original).
On June 10, 2016, the lower court found Risoldi guilty of indirect
criminal contempt and sentenced her to thirty days’ incarceration
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pursuant to 42 Pa.C.S. § 4136(b). On June 14, 2016, Risoldi filed a
timely notice of appeal. On August 9, Risoldi filed a court ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. On appeal, Risoldi raises the following issue for our review:
Whether [Risoldi] did not violate the order of court and record of
order and the record of contempt proceedings shows no such
violation no contempt as a matter of law. The evidence is
insufficient as a matter of law to sustain the charge of criminal
contempt. The evidence clearly shows that the defendant never
had any contact with any witnesses that were prohibited in [the
Honorable Thomas G. Gavin’s] Order?
Brief of Appellant, at 5.
The following standard of review guides this Court when
presented with a challenge to the sufficiency of the evidence:
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, the fact that the evidence
establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most
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favorable to the Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a reasonable doubt,
the appellant's convictions will be upheld.
Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa. Super.
2013) (internal citations omitted).
Section 4132 provides, in relevant part:
§ 4132. Attachment and summary punishment for
contempts.
The power of the several courts of this Commonwealth to
issue attachments and to impose summary punishment for
contempts of this court shall be restricted to the following cases:
* * *
(2) Disobedience or neglect by officers, parties, jurors or
witnesses of or to the lawful process of the court.
41 Pa.C.S.A. § 4132(2). The charge of indirect criminal contempt
consists of a claim that a violation of an order or decree of the Court
occurred outside the presence of the court. See Commonwealth v.
Ashton, 824 A.2d 1198 (Pa. Super. 2003). To prove indirect criminal
contempt, evidence must be sufficient to establish the following: (1)
the order in question must be definite, clear, specific, and leave no
doubt or uncertainty in mind of person to whom it was addressed of
conduct prohibited; (2) the contemnor must have had notice of specific
order or decree; (3) the act constituting violation must have been
volitional; and (4) the contemnor must have acted with wrongful
intent. See id. The minimum intent required to prove criminal
contempt is a volitional act done by one who knows or should
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reasonably be aware that her conduct is wrongful. Commonwealth
v. Debose, 833 A.2d 147, 149 (Pa. Super. 2003). However, this
Court has established that direct intent is not necessary where a
reckless disregard for the directions of the court can be proven. Id.The record indicates Judge Gavin’s order was definite, clear and
specific and left no doubt or uncertainty in the mind of either Risoldi or
her counsel. On February 8, 2016, during a hearing related to the
Commonwealth’s motion to revoke bail based on witness intimidation,
Judge Gavin stated the following: “Any contact by any means known
or that might become known to [Risoldi’s] fertile mind will result in a
contempt proceeding, and you will remind her that contempt is
punishable by jail and she just might find herself awaiting trial sitting
in the Buck County Prison.” N.T. Hearing, 2/8/16, at 59. The lower
court’s directive was unambiguous; Risoldi was present in the
courtroom during the hearing and her counsel acknowledged on the
record an understanding of the order. Commonwealth v. Brown,
622 A.2d 946 (Pa. Super. 1993) (in order to be guilty of criminal
contempt contemnor must have notice of specific order).
Despite the lower court’s directive, Risoldi, personally and
without the assistance of Attorney McMahon, proceeded to have a
series of subpoenas served on the following parties: (1) Buckingham
Township Police Department, (2) the Bucks County District Attorney’s
Office, (3) AIG/Chartis Insurance Company, (4) AIG/Chartis’ insurance
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defense counsel, (5) the Buckingham Township Fire Marshall’s office,
(6) the Midway Volunteer Fire Company, (7) the Lingohocken
Volunteer Fire Company, (8) the lead Office of the Attorney General
(“OAG”) prosecutor David Augenbraun, and (9) the records custodian
for the OAG.1 N.T. Trial, 6/10/16, at 12. Risoldi does not contest that
she personally participated in the preparation and serving of the
subpoenas.2 Moreover, Risoldi’ counsel, Attorney McMahon, informed
the OAG that the subpoenas were illegitimate. N.T. Trial, 6/10/16, at
17.
Upon review, we can discern no abuse of the lower court’s
discretion in finding Risoldi to have been in indirect criminal contempt
of the court. Commonwealth v. Padilla, 885 A.2d 994 (Pa. Super.
2005) (once trial court has made finding of indirect criminal contempt,
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1
The Commonwealth avers that the subpoenas were intimidating in nature,
including one that included the following language:
Personnel file of J.R. Landis (who, after years of seeking a
promotion but not getting it, was promoted between his two
times testifying at the Grand Jury in our case, remember that he
was promoted by Steve Daniels, the police chief and 60+ year
veteran of the Midway Fire Department).
N.T. Trial, 6/10/16, at 14-15.
2
Risoldi avers that there is insufficient evidence that she served the
subpoenas in bad faith. See Holt v. Virginia, 381 U.S. 131 (1965); In re
Zalkind, 872 F.2d 1 (1989). This argument is unavailing. Risoldi acted with
reckless disregard of the directions of the court when she subpoenaed the
aforementioned parties. Dubose, supra.
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Superior Court will not disturb its decision absent abuse of discretion).
Ashton, supra.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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