Com. v. Lambert, J. , 147 A.3d 1221 ( 2016 )

J-A18035-16
2016 PA Super 200COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JACK T. LAMBERT,
Appellant No. 2209 MDA 2015
Appeal from the Judgment of Sentence October 30, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-MD-0001849-2015
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 07, 2016
Jack T. Lambert (“Appellant”) appeals from the judgment of sentence
entered by the Court of Common Pleas of Centre County, which found him in
indirect criminal contempt of a prior Protection From Abuse (“PFA”) order1
and sentenced him to 30 days’ incarceration and a consecutive period of 5
months’ probation. Appellant contends that the Commonwealth failed to
prove he intended to violate the PFA order and asserts that the PFA order’s
restriction against posting any remarks or images involving the victim on
social media violated his constitutional right to free speech. We affirm.
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1
23 Pa.C.S. § 6114.
*Former Justice specially assigned to the Superior Court.
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In early October of 2015, the plaintiff (“Plaintiff”) ended her one and
one-half year intimate relationship with Appellant because of what she
termed “his mental abuse and everything he has absolutely put me through,
especially in the last six months.” N.T. 10/30/15 at 4. She filed an
emergency PFA petition on October 13, 2015, and, on October 26, 2015,
obtained a final PFA order against Appellant. N.T. at 5. The order directed
that, for the ensuing three years, Appellant was prohibited from having any
contact with Plaintiff, either directly or indirectly, at any location. Final
Order, filed 10/26/15, at 2.; C.R. #3. Moreover, the order directed that
“[Appellant] may not post any remark(s) and/or images regarding
Plaintiff, on any social network(s), including, but [not] limited to,
Facebook, Myspace, Twitter, or any other electronic networks.” Id.
(emphasis in original).
The day following entry of the final PFA order, Appellant authored a
series of posts on Facebook alluding to a nameless, former paramour, his
disapproval of how she ended their relationship, and the emotions he was
experiencing because of the unfair treatment he believed he received from
both her and the justice system. The following posts represent a sample of
the Facebook comments at issue:
• I’ve lost my love and trust in people. I don’t think I’ll ever
trust again. I gave her my full trust just for her to use it
against me and then has somebody else within days. She
never loved me but I loved her and still do. But things are
different now. So, it is time to let go of her and let her be
happy and hopefully she someday realizes that she needs
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help and turn back into the wonderful woman I love. She has
three years now without me taking care of her and doing
everything for her. So, maybe she will finally see things
differently and see I’m willing to wait for her. I have to.
She’s my soulmate.
• I’m just so fucking depressed. I am so sorry, Facebook, but I
lost my best friend, my love, my soul. My heart is crushed.
God only knows what I will do next. I am so lost right now.
God, help me through this. Please give me my love back. I
have been trying to do everything right but I screw up
sometimes. I can’t deal with the pain.
• Wondering how you can go from lovin [sic] someone who
takes excellent care of you to absolutely hating them people
have arguments but that doesn’t mean you stop loving them
unless you never really loved them at all and was just using
them.
• How can someone say they love someone and within a few
days be with someone else is that a slut or what[?]
• [Appellant updated his profile picture, which depicts his
nautical star tattoo, one of a set of matching tattoos that both
he and Plaintiff got on their lower legs while they were a
couple.]
• Justice system sucks and too many women abuse it.
Commonwealth’s Exhibit 1, N.T. at 7-13.
Plaintiff contacted authorities and asserted that Appellant’s Facebook
activity represented a violation of the PFA order filed one day earlier.
Bellefonte Police investigated her claim and forwarded Appellant’s posts to
the Centre County District Attorney’s Office, which took the view that
Appellant had violated the PFA order’s prohibition against referencing the
Plaintiff on social media. Accordingly, the DA’s office filed a criminal
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complaint charging Appellant with indirect criminal contempt of the court’s
PFA order.
At the hearing of October 30, 2015, Plaintiff described her fearful
reaction to Appellant’s posts, which were entered into evidence during her
testimony. Though the posts never identify her by name, Plaintiff was
certain she was the subject of Appellant’s commentary. The use of personal
pet names such as “soulmate,” “love of his life,” and “Sunshine,” 2 displaying
the image of their shared tattoo, discussing relationship troubles, criticizing
the justice system and how women abuse it, and referencing the “three
years” she would have “without [him] taking care of her” all pertained to her
and the three-year duration of the PFA order, Plaintiff testified. N.T. at 7, 9-
10, 11-13, 16.
As to Appellant’s comment “God only knows what I will do next,”
Plaintiff testified as follows:
Q: When you read things like this saying, [“]God only knows
what I will do next,[”] how do you feel?
A: What he says is true. God only knows what he will do
next.
Q: Does that concern you at all?
A: Most definitely.
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2
Plaintiff provided unrebutted testimony that the post containing Appellant’s
use of the pet name “Sunshine” is not among the October 27, 2015, series
of posts appearing in the Commonwealth’s Exhibit 1, but appears, instead, in
a subsequent post made by Appellant. N.T. at 16.
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Q: Why? Why does that worry you?
A: That worries me because what he – what has not been
directed to the Court.
Q: What do you mean by that?
A: There are things that Jack has wanted to do that I have
stopped him to do [sic].
Q: Can you tell us what you are talking about? The Court
doesn’t have that information. So, you’re referencing why
you’re scared. You can tell the Court why you’re scared when
you read posts like this. Because you know what he’s referring
to?
A: Yes, I do.
Q: Tell us.
A: But if I do that and he gets out, I’m afraid of what he will
do next.
Q: Do you have concerns for your own physical safety?
A: Absolutely.
Q: Do you have concerns for the safety of others?
A: Absolutely.
***
Q: [After establishing that plaintiff saved all Appellant’s posts
to her clipboard before he decided to remove them] So, at some
point last night, the posts that we just talked about were
removed?
A: Correct, except for the one that’s there today that says
this war is not over.
Q: When was that posted?
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A: I believe last night or Wednesday. I’m sorry. I believe
Wednesday. I could be wrong on the date.
Q: Was it at some point after these posts?
A: Yes.
Q: That’s something that you actually viewed?
A: Yes.
Q: Were you concerned about that?
A: Yes.
Q: Why?
A: I don’t know what Jack is capable of. Jack has been in and
out of many mental hospitals throughout our relationship. I
have personally had to 302 Jack. He has involuntary (sic) [in
original] put himself in mental institutions many times for
homicidal thoughts – is one of the main things that really
scare[s] me.
N.T. 12-14.
On cross-examination, Plaintiff testified that she accessed Appellant’s
comments, all of which were contained in “public posts,” through her own
Facebook account. N.T. at 15. She said she often checked his Facebook
page for her own safety because he “is known to post all of his feelings on
his Facebook, and it would give me enough time to react.” N.T. at 15-16.
Arresting officer, Sergeant Jason Brower of the Bellefonte Borough
Police Department, testified that Appellant admitted “some of the posts were
about her [Plaintiff] and some were about somebody else….” N.T. at 19.
Appellant, himself, testified similarly, although he insisted that most of his
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posts were about somebody else—a former love, with only the post
referencing “three years” pertaining to Plaintiff. N.T. at 22.
On cross-examination, Appellant admitted posting something
regarding Plaintiff despite knowing that the court’s order specifically
prohibited him from doing so. N.T. at 25-26. On re-direct, Appellant said he
did not intend to violate the PFA order, testifying “I didn’t think it was
exactly about her because I didn’t say her name or nothing.” N.T. at 23.
Appellant also claimed he thought he had blocked Plaintiff’s access to his
Facebook postings, and he does “not know how it became unblocked.” N.T.
at 24-25.
At the conclusion of the hearing, the court convicted Appellant of
Indirect Criminal Contempt for violation of the PFA order and sentenced him
as noted, supra. This timely appeal followed.
Appellant presents two questions for our review:
1. Did the Trial Court abuse its discretion by finding [Appellant]
in Indirect Criminal Contempt of his Protection From Abuse
Order where there was no wrongful intent and [Appellant’s]
social media posts did not threaten, stalk, harass, or contact
[Plaintiff]?
2. Is the restriction in [the] Trial Court’s Protection From Abuse
Order from posting any remarks and/or images “regarding”
[Plaintiff] on any social media networks an unconstitutional
violation of free speech as protected by the Constitution of
the Commonwealth and the Constitution of the United States?
Appellant’s brief at 6.
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“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.” Buchhalter v. Buchhalter, 959
A.2d 1260, 1262 (Pa.Super. 2008).3 Where a PFA order is involved, “an
[indirect criminal contempt] charge is designed to seek punishment for
violation of the protective order.” Commonwealth v. Jackson, 10 A.3d
341, 346 (Pa.Super. 2010) (citation omitted). 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. Commonwealth v. Baker, 722
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3
The Act defines abuse, in pertinent part, as:
“Abuse.” The occurrence of one or more of the following acts
between family or household members, sexual or intimate
partners or person who share biological parenthood.
***
(2) Placing another in reasonable fear of imminent serious bodily
injury.
***
(5) Knowingly engaging in a course of conduct or repeatedly
committing acts toward another person, including following the
person, without proper authority, under circumstances which
place the person in reasonable fear of bodily injury. The
definition of this paragraph applies only to proceedings
commenced under this title and is inapplicable to any criminal
prosecution commenced under Title 18 (relating to crimes and
offenses).
23 Pa.C.S. § 6102(a).
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A.2d 718, 720 (Pa.Super. 1998) (en banc). To establish indirect criminal
contempt, the Commonwealth 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. Walsh, 36 A.3d
613, 619 (Pa.Super. 2012).
[W]hen reviewing a contempt conviction, much reliance is
given to the discretion of the trial judge. Accordingly, [the
appellate court is] confined to a determination of whether the
facts support the trial court decision. Williams v. Williams, [ ]
681 A.2d 181, 183 (Pa.Super. 1996)[.] We will reverse a trial
court's determination only when there has been a plain abuse of
discretion.
Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa.Super. 2002) (some
citations omitted).
In his first issue, Appellant contends the Commonwealth failed to
prove he acted with the intent to contact Plaintiff or violate the PFA order in
any way. Specifically, Appellant posits:
The posts at issue “did not mention [Plaintiff’s] name, were on
[Appellant’s] personal profile page, and in no way alerted
[Plaintiff] to their presence. . . .There is no indication that any
other person besides [Plaintiff] would even know who [sic]
[Appellant] was speaking about, nor that [Plaintiff] would have
ever known about the posts had she not purposefully sought
them out.
Appellant’s brief at 16.
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Appellant admitted, however, that he posted comments and an image
“regarding Plaintiff” on an electronic network despite knowing the PFA order
prohibited him from doing so. Though Appellant refrained from using
Appellant’s proper name, the insinuation that Plaintiff and the recent PFA
order at issue were the subjects of Appellant’s Facebook activity was obvious
and unmistakable. The temporal proximity between the hearing and posts,
along with the various negative references to both a recently estranged
paramour who would realize her mistake over the next three years and a
judicial system which she allegedly abused to his detriment, 4 lead to the
inescapable conclusion that Appellant was referring to Plaintiff.
Under such circumstances, and guided by the overarching purpose of
the PFA to prevent abuse, we find ample evidentiary support for the trial
court's determination that Appellant possessed the wrongful intent to violate
the PFA. Kolansky, supra. See Commonwealth v. Brumbaugh, 932
A.2d 108, 111 (Pa.Super. 2007) (“[W]rongful intent can be imputed by
virtue of the substantial certainty that [one's actions will be]. . .in violation
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4
Our conclusion in this respect, moreover, leads us to reject as unfounded
Appellant’s related argument that the PFA order was not definite, clear, or
specific where it proscribed electronic postings “regarding” Plaintiff. On this
point, Appellant argues “[t]he imprecise wording of the Order’s social media
restriction was not clear or specific enough to indicate Appellant would be in
violation for posting about himself, his feelings, or his tattoos.” Appellant’s
brief at 20. As seen in the excerpts and testimony, supra, the record belies
his claim of being the sole subject of his public postings.
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of the PFA Order.”); Commonwealth v. Haigh, 874 A.2d 1174 (Pa.Super.
2005) (holding judges should use common sense and consider context and
surrounding factors in making determination as to whether violation of a PFA
is truly intentional). Accordingly, we reject Appellant’s argument that no
wrongful intent attended his Facebook activity on the day following entry of
the PFA order against him.
In his remaining issue, Appellant contends that the PFA order in
question violates his free speech rights contained in the First Amendment of
the United States Constitution and Article 1, Section 7 of the Pennsylvania
Constitution. He advances a four-pronged attack on the court’s order in
making this claim, asserting it: (1) represents an unlawful content-based
restriction on protected speech; (2) imposes an impermissible blanket
prohibition on any remark regarding Plaintiff without demonstrating how it
advances a compelling governmental interest; (3) represents an
impermissible prior restraint on protected speech; and (4) imposes an
unconstitutionally vague and overbroad restriction on social media usage.
The Commonwealth responds that the PFA Order is not content-based
but is, instead, contact-based, requiring Appellant to refrain from referring
to Plaintiff with words or images appearing in publicly accessible electronic
networks. As long as the restriction is “justified without reference to the
content of the regulated speech,” “is narrowly tailored to serve a significant
or substantial governmental interest,” and leaves “open ample alternative
channels of communication[,]” the Commonwealth maintains, the restriction
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is reasonable. Appellee’s brief at 24 (citing Golden Triangle News, Inc. v.
Corbett, 689 A.2d 974 (Cmwlth. Ct. 1997)).
We first set forth our scope and standard of review, noting that the
United States Supreme Court has stated that in reviewing First Amendment
cases, appellate court must conduct a review of the entire record. See
Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115
L.Ed.2d 888 (1991); In re Condemnation by Urban Redevelopment
Auth. of Pittsburgh, 913 A.2d 178, 183 (Pa. 2006). The First Amendment
provides that “Congress shall make no law ... abridging the freedom of
speech.” U.S. Const. amend. I. The First Amendment's protection of
freedom of expression is made applicable to the states through the
Fourteenth Amendment. Id.When the government restricts expression due to the
content of the message being conveyed, such restrictions are
allowable only if they pass the strict scrutiny test. That test is
an onerous one, and demands that the government show that
the restrictions are “(1) narrowly tailored to serve (2) a
compelling state interest.” Republican Party of Minnesota v.
White, 536 U.S. 765, 775, 122 S.Ct. 2528, 153 L.Ed.2d 694(2002).
Yet, strict scrutiny is not applied simply because a plaintiff
raises a claim that its freedom of expression has been curtailed.
The High Court has recognized that where the governmental
regulation applies a content-neutral regulation to expressive
conduct, strict scrutiny is an inappropriate test to apply. Texas
v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342(1989). The test which is applied to such content-neutral
regulations was first enunciated in the seminal case of United
States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672(1968). In O'Brien, the defendant was convicted of violating a
statute which criminalized the act of destroying or mutilating a
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draft card. The defendant had burned his Selective Service
registration certificate in order to convince people to adopt his
anti-war beliefs. The defendant argued that the conviction could
not stand as the statute criminalizing the destruction of draft
cards ran afoul of the First Amendment.
In analyzing this claim, the O'Brien Court stated that
where expressive and nonexpressive conduct are combined in
the same activity, “a sufficiently important governmental interest
in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms.” Id. at 376, 88 S.Ct.
1673. The O'Brien Court decreed that such “government
regulation is sufficiently justified” if:
1) Promulgation of the regulation is within the
constitutional power of the government;
2) The regulation furthers an important or
substantial governmental interest;
3) The governmental interest is unrelated to the
suppression of free expression; and
4) The incidental restriction on First Amendment
freedoms is no greater than essential to the
furtherance of that interest.
Id. at 377, 88 S.Ct. 1673. The O'Brien Court found that all four
prongs were met and thus denied the defendant relief.
In re Condemnation by Urban Redevelopment Auth. of Pittsburgh,
913 A.2d at 183–84. See also Clark v. Community for Creative Non-
Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (observing
that content-neutral restrictions on speech are only valid if they are justified
without reference to the content of the regulated speech, are narrowly
tailored to serve a significant governmental interest unrelated to speech,
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and leave open ample alternative channels for communication of the
information).5
A review of the PFA Order at bar reveals that its proscription suffers
from none of the infirmities Appellant alleges in his argument, for the
proscription in question is not content-based, clearly advances an important
governmental interest unrelated to speech, and is narrowly-tailored to
advance this interest. It is undisputed that the proscription, itself, is limited
to social and electronic network remarks “regarding Plaintiff.” As written,
therefore, the proscription is not concerned with the content of Appellant’s
speech but with, instead, the target of his speech, namely, Plaintiff, whom
the court has already deemed the victim of his abusive conduct.
An abuser’s mere posting of any reference to his or her victim on
social media, regardless of content, is, thus, automatically considered
targeting tantamount to making impermissible contact with the victim. For
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5
The Pennsylvania Supreme Court has recognized that Article I, Section 7 of
the Pennsylvania Constitution provides broader protections of expression
than the related First Amendment guarantee in a number of different
contexts. DePaul v. Com., 969 A.2d 536, 546 (Pa. 2009) (citing, e.g., Ins.
Adjustment Bureau v. Ins. Comm'r, 542 A.2d 1317, 1324 (Pa. 1988)
(Article I, Section 7 does not allow prior restraint or other restriction of
commercial speech by governmental agency where legitimate, important
interests of government may be accomplished in less intrusive manner)).
However, we conclude, infra, that the PFA Order’s proscription could not
advance the important governmental interest of preventing victim abuse in
social media by a less intrusive manner than simply prohibiting remarks
regarding the victim. Accordingly, Appellant’s state constitution-based
claims are equally unavailing.
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an adjudged abuser to refer to a victim in publicly trafficked electronic
forums, for whatever reason, is to exercise control over the victim in public,
thus perpetuating the abuse of the victim. Whether a remark is patently
innocuous or offensive, informational or nonsensical is of no moment under
the order as written; it is the mere reference to the victim, alone, that
triggers the proscription.
Viewing the PFA Order in light the above-referenced intermediate test
applicable to content-neutral, governmental restrictions on speech, we
discern no infirmity with its proscription as stated. The provision is
narrowly-tailored to advance the important governmental interest at stake,
i.e., the cessation of abuse in intimate or formerly intimate relationships,
supra, while remaining silent as to other channels of communication
available to Appellant. Accordingly, we discern no merit to Appellant’s
constitutional challenge to the PFA order as it applied the PFA in his case.
Judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2016
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