Opinion
J-S09016-17 No. 1243 EDA 2016 No. 1535 EDA 2016
06-22-2017
GRACE FORCIER Appellee v. DAWN MARIE BALL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered March 23, 2016
In the Court of Common Pleas of Northampton County
Domestic Relations at No: C-0048-PF-2016-00091 Appeal from the Judgment of Sentence April 15, 2016
In the Court of Common Pleas of Northampton County
Domestic Relations at Nos: C-0048-PF-2016-00091 and CP-48-MD-0000670-2016 BEFORE: SHOGAN, STABILE, and PLATT, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Dawn Marie Ball, appeals pro se from the order entered March 23, 2016, and the judgment of sentence entered April 15, 2016, in the Court of Common Pleas of Northhampton County ("trial court") denying Appellant's claim for a return of property in the protection from abuse ("PFA") docket, and holding her in contempt for violating a PFA order. Upon review, we affirm in part, vacate in part, and remand for resentencing.
Briefly, the matter stems from cross PFA orders that the trial court granted on February 17, 2016. On the same date, the trial court issued a rule to show cause upon Appellant's request for her personal possessions. The trial court held a hearing on the request for return of property on March 23, 2016; following which, the trial court denied the request. Appellant filed a notice of appeal on April 15, 2016, and on May 5, 2016, the trial court directed Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b). Appellant filed her Rule 1925(b) statement on May 16, 2016, and the trial court issued a Pa.R.A.P. 1925(a) opinion on June 8, 2016.
The parties consented to the trial court entering cross PFA orders. --------
On March 29, 2016, Appellee filed a complaint for indirect criminal contempt against Appellant. Following a hearing on April 15, 2016, the trial court found Appellant in indirect criminal contempt and sentenced her to a suspended sentence of six months incarceration. Appellant filed a notice of appeal on May 12, 2016, and on June 9, 2016, the trial court directed Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b). On June 27, 2016, Appellant complied and filed a Rule 1925(b) statement and the trial court issued a Rule 1925(a) opinion on August 1, 2016.
On appeal, Appellant raises six issues for appeal, which we quote verbatim.
1. whether the Lower Court Committed a Miscarriage of Justice by Refusing to attain the ends of Justice by: A) debasing the defendant/Appellant in case No. 1243 EDA 2016 (and) B) by convicting An innocent person in case no. 1535 EDA 2016.Appellant's Brief at 2 (sic).
2. whether the trial Judge Committed Misconduct against the defendant/Appellant in case no. 1243 EDA 2016.
3. Should Any Alleged evidence by the Plaintiff in No. 1535 EDA 2016 been allowed.
4. whether the court Abused its discretion in both cases causing unfair judgment towards the defendant/Appellant.
5. Whether Court erred in accepted alleged evidence at the trial and failing to give Appellant proper time to Review it.
6. Was evidence in case no. 1535 EDA 2016 sufficient to convict Appellant.
This Court is to construe liberally, materials filed by a pro se litigant; therefore, this Court will address discernible arguments in the defective brief in the interest of justice. See Commonwealth v. Lyons , 833 A.2d 245, 252 (Pa. Super. 2003). It appears that Appellant's issues 1, 2, and 4 are challenges to the merits of the March 23, 2016 order dismissing Appellant's return of property. Appellant's arguments are unclear, and unsupported by citation to legal authority, thus Appellant's arguments are waived. Insofar as Appellant's arguments are not waived, they are meritless as the PFA action was not the correct method to request a return of property. Thus we adopt the reasoning of the trial court's June 8, 2016 opinion.
Appellant next challenges the May 15, 2016 judgment of sentence finding Appellant in indirect criminal contempt for violating the February 17, 2016 PFA order. Appellant's issues are woefully short of preserving or stating issues that would allow this Court to perform meaningful appellate review. Thus, even though Appellant is pro se, and this Court construes filings from pro se litigants liberally, Appellant fails to inform this Court of the issues to review. Accordingly, we conclude Appellant's issues are without merit. Regarding Appellant's sufficiency of the evidence claim, Appellant failed to preserve the issue for appeal. See Commonwealth v. Tyack , 128 A.3d 254, 260 (Pa. Super. 2015).
If [a]ppellant wants to preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the elements or elements on appeal. [Where a] 1925(b) statement [] does not specify the allegedly unproven elements[,] . . . the sufficiency issue is waived [on appeal].Id. (quoting Commonwealth v. Williams , 959 A.2d 1252, 1257 (Pa. Super. 2008) (quoting Commonwealth v. Flores , 921 A.2d 517, 522-523 (Pa. Super. 2007))).
"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. Lambert , 147 A.3d 1221 (Pa. Super. 2016) (citing Commonwealth v. Baker , 722 A.2d 718, 720 (Pa. Super. 1998) (en banc)). Our standard of review for an indirect criminal contempt is "confined to a determination of whether the facts support the trial court decision. We will reverse a trial court's determination only when there has been a plain abuse of discretion." Id. (citations omitted). The elements of indirect criminal contempt include: "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." Id. (citing Commonwealth v. Walsh , 36 A.3d 613, 619 (Pa. Super. 2012). Appellant's brief fails to identify which element or elements of indirect criminal contempt she is challenging; therefore, she has failed to preserve this issue on appeal. Even if Appellant preserved the issue, Appellant's claim is meritless, and we adopt the reasoning of the trial court's opinion of August 1, 2016. We direct that a copy of the trial court's June 8, 2016 opinion and August 1, 2016 opinion be attached to any future filings in this case.
While Appellant's claims fail, the sentence imposed by the trial court constitutes an illegal sentence. "It is well settled that this Court may address the legality of a sentence sua sponte." Commonwealth v . McCamey , 154 A.3d 352, 357 (Pa. Super. 2017) (citing Commonwealth v. Infante , 63 A.3d 358, 363 (Pa. Super. 2013)). Thus, this Court can raise the issue. In the matter sub judice the trial court sentenced Appellant to a suspended sentence of six months incarceration for indirect criminal contempt. The only sentencing options the trial court could have imposed were
(A) a fine of not less than $300 nor more than $1,000 and imprisonment up to six months; or23 Pa.C.S.A. § 6114(b)(1)(i). Notably, "[a]n indefinitely suspended sentence is not a sanctioned sentencing alternative. Moreover, it is as true now as it was when [ Commonwealth v. Duff , 200 A.2d 773 (Pa. 1964)] was decided, that an indefinitely suspended sentence violates 'true principles of probation' and causes confusion where none should exist." Commonwealth v. Joseph , 848 A.2d 934, 942 (Pa. Super. 2004) (quoting Commonwealth v. Ferrier , 473 A.2d 1375, 1378 (Pa. Super. 1984)). The sentence imposed by the trial court is an indefinitely suspended sentence, thus, it is an illegal sentence. Therefore, we vacate and remand for resentencing in compliance with § 6114(b)(1).
(B) a fine of not less than $300 nor more than $1,000 and supervised probation not to exceed six months[.]
Order affirmed. Judgment of sentence vacated and remanded for further proceedings. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/22/2017
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