Com. v. Baker

• Citation: 722 A.2d 718
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gregory A. BAKER, Appellant.
• Decision Date: 23 December 1998
• Court: Pennsylvania Superior Court

722 A.2d 718

COMMONWEALTH of Pennsylvania, Appellee, v. Gregory A. BAKER, Appellant.

Superior Court of Pennsylvania.

Argued September 9, 1998.

Filed December 23, 1998.

Andrew J. Goncharoff, York, for appellant.

Susan R. Emmons, Asst. District Atty., York, for Com., appellee.

Before CAVANAUGH, DEL SOLE, JOHNSON, HUDOCK, EAKIN, STEVENS, MUSMANNO, ORIE MELVIN, and LALLY-GREEN, JJ.

DEL SOLE, J.:

This is a direct appeal from a judgment of sentence directing Appellant to serve a period of six months incarceration for his conviction of indirect criminal contempt. Appellant contends that there is insufficient evidence, under the particular facts of this case, to support his conviction. We vacate the judgment of sentence and reverse the conviction.

The charge against Appellant stemmed from the issuance of an order in response to a petition for protection from abuse filed by Appellant's ex-girlfriend. In accordance with the provisions of the Protection From Abuse Act, (PFA) 23 Pa.C.S.A. §§ 6101-6118, the court issued an ex parte temporary order and set a hearing date within ten days, at which time the plaintiff was to prove the allegations of abuse by a preponderance of the evidence. 23 Pa.C.S.A. § 6107(a). The petition was later dismissed when the plaintiff failed to appear at the permanent hearing. However, Appellant was charged with contempt of court for conduct he exhibited when he was advised of the temporary order.

Two deputy sheriffs served a copy of the temporary order on Appellant, who was incarcerated in the York County Prison. The deputies testified they read and explained the order to Appellant and he complied with their request to sign the document. However, as Appellant was departing he remarked in the presence of the deputies, "I'm going to kill this bitch." The deputies did not convey this statement to the plaintiff, but did file indirect criminal contempt charges against Appellant for violating the temporary PFA order. A hearing was held and Appellant was found guilty of indirect criminal contempt and sentenced to six months imprisonment.

The sole question raised on appeal is whether Appellant's statement made in the presence of the officers while in custody, but not conveyed to the plaintiff, constituted conduct in violation of the temporary order for which he could be found guilty of contempt.

We begin by recognizing the importance of the purposes of the Protection From Abuse Act. Hailed as a vanguard measure to deal with problems of abuse, the act was designed to advance the prevention of physical and sexual abuse. Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 490 A.2d 918 (Pa.Super.1985); Cipolla v. Cipolla 264 Pa.Super. 53, 398 A.2d 1053 (Pa.Super.1985). In an effort to prevent domestic violence it concomitantly promotes the security of the home. Commonwealth v. Majeed, 548 Pa. 48, 694 A.2d 336 (Pa.1997). Because every individual has a right to feel secure in their home and to be free of violence, our Commonwealth has seen fit to provide these measures for the protection of its citizens.

In view of these concerns, the court in this matter issued a temporary protection from abuse order against Appellant. Appellant was charged with contempt for violating the terms of that 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. Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (Pa.1968). Where a PFA order is involved, an indirect criminal contempt charge is designed to seek punishment for a violation of the protective order. Commonwealth v. Nelson, 456 Pa.Super. 349, 690 A.2d 728 (Pa.Super.1997). The "role of criminal contempt and that of many ordinary criminal laws seem identical—protection of the institutions of our government and enforcement of their mandates." Diamond v. Diamond, 715 A.2d 1190, 1195 (Pa.Super.1998). Thus, as with those accused with other crimes, one charged with indirect criminal contempt is to be provided the safeguards which statute and criminal procedures afford. Crozer-Chester Medical Center v. Moran, 522 Pa. 124, 560 A.2d 133, 137 (Pa.1989).

In considering the sufficiency of the evidence to support a finding of criminal contempt for failure to comply with a court order, four elements must be present:

(1) the order must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited; (2) the contemnor must have had notice of the specific order or decree, (3) the act constituting the violation must have been volitional, and (4) the contemnor must have acted with wrongful intent.

Diamond v. Diamond, 715 A.2d at 1196.

The temporary order issued in this case provided:

The Defendant shall refrain from abusing, harassing, threatening and stalking the Plaintiff or placing her in fear of abuse in any place where she may be found.

The order also advises the defendant that any violation "of this order shall constitute contempt of court." Thus, the question becomes whether Appellant's statement violated the terms of this order.

Appellant argues that his comment was not a threat, rather he was "doing nothing more than venting his frustration." Appellant's Brief at 10. He notes that the Crimes Code does not define the word "threat," and that the criminal offense which does concern threats, captioned "Terroristic Threats," requires the actor to have an intent to terrorize or cause serious public inconvenience. He remarks that no such intent can be shown in this case where the subject of the alleged threat never learned of its existence, and where he was incarcerated at the time the statement was made.

The Commonwealth argues that 1 Pa.C.S.A. § 1903 requires that words not specifically defined by statute be defined by common and approved usage. It notes that the trial court stated it was applying the definition found in the American Heritage Dictionary, defining the word threat as an expression of an intention to inflict pain, injury or evil. It also refers to the definition of threat found in Black's Law Dictionary 1327 (5th ed.1981), which defines "threat" as "[a] communicated intent to inflict physical or other harm on any person or on property." Because Appellant's comment was communicated to the sheriff deputies, the Commonwealth submits that it fulfills the definition of a threat.

While Appellant's comment may satisfy the dictionary definition of a threat as suggested by the Commonwealth, we conclude that Appellant cannot be convicted of a crime based on conduct which is not clearly defined as prohibited. As we noted, an order underlying a contempt charge must be definite, clear, specific and leave no doubt or uncertainty as to what conduct is prohibited. Diamond v. Diamond, 715 A.2d at 1196. This requirement is critical because Appellant has been charged with a crime for violating that order. The order directs that Appellant not threaten the plaintiff or put her in fear, however, as evidenced by the parties' divergent interpretations, uncertainty remains as to what type of communication is prohibited, to whom it must be communicated, and whether an element of intent must be established.

The necessity that the order clearly and specifically set forth the prohibited conduct is in keeping with the requirement that penal statutes may not be unconstitutionally vague. A penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and that it be done in a manner that does not encourage arbitrary and discriminatory enforcement. Commonwealth v. Hendrickson, 453 Pa.Super. 533, 684 A.2d 171 (Pa.Super.1996). This is particularly true when the conduct to be prohibited may be constitutionally protected speech.

"When engaged in a constitutionally protected activity of the fundamental nature of freedom of speech, we must exercise restraint in prohibiting the activity lest we destroy the right." Commonwealth v. Gowan, 399 Pa.Super. 477, 582 A.2d 879, 882 (Pa.Super.1990). However, the right to free speech is not absolute, and certain well-defined, limited classes of speech may be prevented and punished without raising constitutional problems. Commonwealth v. Duncan, 239 Pa.Super. 539, 363 A.2d 803, 806 (Pa.Super.1975). Lewd, obscene, profane, libelous and insulting or "fighting words those which by their very utterance inflict injury or tend to incite an immediate breach of peace" are not constitutionally protected. Id. (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)). Only "true threats" fall within that group of expressions, such as fighting words, which are not constitutionally protected "pure speech." U.S. v. Maxton, 940 F.2d 103, 105 (4th Cir.1991). A true threat is one which "on its face and in the circumstances in which it is made is so unequivocal, unconditionally immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution." United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir.1976).

While we have no difficulty concluding the statement made by Appellant in the presence of the deputies can be viewed as threatening in nature, we find the trial court order which Appellant was convicted of violating can be interpreted to permit this statement, as long as it did not occur in the plaintiff's presence or place her in fear. The order prohibited Appellant from "threatening ... the Plaintiff or placing her in fear of abuse." Whether the order prohibited a threatening statement which merely referred to the plaintiff or whether such a statement had to be made in the plaintiff's presence or in some manner subject her to fear, is uncertain. Thus, we cannot say that the order clearly and specifically precluded the conduct exhibited by Appellant. Nor can it be argued that since the trial court judge, who entered the order...