Leonard v. Smith

• Decision Date: 21 October 1996
• Citation: 454 Pa.Super. 51,684 A.2d 622
• Parties: Lela Marie LEONARD v. Andre P. SMITH, Appellant.
• Court: Pennsylvania Superior Court

Page 622

684 A.2d 622

454 Pa.Super. 51

Lela Marie LEONARD v. Andre P. SMITH, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 11, 1996.

Filed Oct. 21, 1996.

Jan I. Medoff, Pittsburgh, for appellant.

Lorraine M. Bittner, Pittsburgh, for appellee.

Before CIRILLO, President Judge Emeritus, and TAMILIA and HESTER, JJ.

TAMILIA, Judge:

Andre Smith appeals from the March 9, 1995 judgment of sentence imposing three consecutive six-month terms of imprisonment and one concurrent six-month term. Following a hearing, appellant was adjudged guilty of four counts of indirect criminal contempt on the basis that he had violated the provisions of a protection from abuse (PFA) Order. The charges stemmed from appellant's continued threatening contacts with his former girlfriend, appellee Lela Marie Leonard.

On April 26, 1993, appellee initiated this action by filing a PFA petition against appellant, and a preliminary Order was issued on that date excluding appellant from appellee's residence. On May 4, 1993, a final Order was entered by consent of the parties which directed appellant to refrain from having any contact with appellee for a period of one year. Thereafter, appellant's continued contact with appellee caused several consent Orders to be entered extending the protective provisions of the May 4, 1993 final Order. By consent Order dated April 27, 1994, the provisions of the final Order were continued until May 11, 1994, on which date the provisions were extended until June 29, 1994, when the provisions were again extended, until December 28, 1994. Several additional complaints also were filed prior to December 28, 1994, and a hearing scheduled for that date was ultimately continued until March 9, 1995. At the hearing, six outstanding complaints were consolidated and both parties, via counsel and testimony, participated in the proceedings. Following the hearing, appellant was adjudicated not guilty on two of the violations, but guilty on the remaining four violations. These included a single, continuing violation from April 26, 1993, to May 14, 1993, and violations on October 19, 1993, March 20, 1994 and September 2, 1994, respectively. The aforementioned sentence then was imposed.

At the time the present contempt sentence was imposed, appellant already had received a sentence on separate criminal charges arising out of the March 20, 1994 PFA violation. Specifically, on August 24, 1994, appellant had pled guilty to stalking, ¹ harassment by communication ² and criminal mischief ³ and was sentenced on October 19, 1994 to one and one-half (1 1/2) to five (5) years' imprisonment and one year probation. ⁴ This prior sentence becomes important because of a recent development in our law concerning double jeopardy.

In his brief, appellant makes the apparent concession that "a prosecution for contempt of a violation of a PFA statute is not barred by double jeopardy even though the contempt proceeding involved the same conduct as [a separate] criminal case." (Appellant's brief at 7.) For this proposition, appellant cites Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985).

However, as appellant recognized at oral argument, Allen has been overruled by our Supreme Court in the recent case of Commonwealth v. Yerby, 544 Pa. 578, 679 A.2d 217 (1996). According to Yerby, in determining whether the double jeopardy clause bars a subsequent criminal prosecution for conduct which served as the basis of a criminal contempt citation:

[W]e must look to the specific offenses at issue in the contempt proceeding and compare the elements of those offenses with the elements of the subsequently charged criminal offenses. If they are the same, or if one is a lesser included offense of the other, double jeopardy attaches and the subsequent prosecution is barred. The focus, then, is on the offense(s) for which the defendant was actually held in contempt.

Again, it is the elements of the offenses for which the defendant has been found guilty in the contempt proceedings and the subsequent criminal proceedings to which the Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ] test will be applied. Rather than compare the general elements of contempt of court [as mandated by the holding of Allen ], we compare the elements of the offense actually deemed to have been violated in that contempt proceeding against the elements of the substantive criminal offense(s).

Id. at 588, 679 A.2d at 221-222 (footnote omitted). Thus, according to Yerby, the double jeopardy clause will bar a subsequent criminal prosecution for conduct which served as the basis of a criminal contempt citation unless each of the offenses for which the defendant is tried or punished contains an element not contained in the other.

Initially, we note that unlike Yerby, appellant in the instant case received the criminal sentence prior to the contempt sentence. However, since both are criminal proceedings, this is not a relevant distinction and the double jeopardy clause nonetheless applies. See Wagner v. Wagner, 387 Pa.Super. 246, 248-250, 564 A.2d 162, 163 (1989), appeal denied, 525 Pa. 628, 578 A.2d 415 (1990) (criminal contempt proceeding arising under the PFA "is criminal in nature and has double jeopardy implications.").

In order to apply the "same element" test of Yerby, we must first determine the offenses with which appellant was charged at the prior criminal proceeding and compare them to the offenses underlying the subsequent contempt proceeding. Yerby, supra. In this regard, the record indicates that on August 24, 1994 appellant pled guilty to stalking, harassment by communication and criminal mischief arising out of the March 20, 1994 incident. As noted, on October 19, 1994, he received a sentence of one and one-half (1 1/2) to five (5) years' imprisonment on the stalking charge and one (1) year probation for harassment by communication (N.T., 3/9/95, p. 14). No further penalty was imposed on the criminal mischief charge. Following the contempt proceeding, the court convicted appellant of the March 20, 1994 violation but did not state the specific offenses underlying the conviction. Thus, we must look elsewhere in the record to identify these offenses. ⁵ In this regard, the contempt complaint states that "[t]he acts committed by [appellant] were: actor did enter victim's house and attempted to assault her." (Supp.R. at 14.) Further, testimony at the contempt hearing indicates that appellant "walked up to [appellant's] screen door [and] was reaching like he had a weapon of some sort[.]" (N.T. at 7.) Initially, we note that these statements appear to conflict over whether appellant actually entered appellee's house. While this is a relevant factor in considering the type of trespass committed by appellant, it is clear that appellant committed either criminal or defiant trespass. For purposes of our double jeopardy analysis, we will give appellant the benefit of the doubt and assume he committed only the lesser offense, defiant trespass. ⁶ Thus, we must compare the elements of stalking, harassment by communication and criminal mischief, the charges underlying the criminal conviction, with those of defiant trespass and assault, ⁷ the charges which apparently served as the basis of appellant's contempt conviction. The stalking, harassment and criminal mischiefstatutes of Title 18 of Purdon's provide:

§ 2709. Harassment and stalking

. . . . .

(b) Stalking.--A person commits the crime of stalking when he engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances which demonstrate either of the following:

(1) an intent to place the person in reasonable fear of bodily injury; or

(2) an intent to cause substantial emotional distress to the person.

§ 5504. Harassment by communication or address

(a) Offense defined.--A person commits a misdemeanor of the third degree if, with intent to harass another, he:

(1) makes a telephone call without intent of legitimate communication or addresses to or about such other person any lewd, lascivious or indecent words or language or anonymously telephones another person repeatedly; or

(2) makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language.

§ 3304. Criminal mischief

(a) Offense defined.--A person is guilty of criminal mischief if he:

(1) damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means listed in section 3302(a) of this title (relating to causing or risking catastrophe);

(2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property;

(3) intentionally or recklessly causes another to suffer pecuniary loss by deception or threat; or

(4) intentionally defaces or otherwise damages tangible public property or tangible property of another with an aerosol spray-paint can, broad-tipped indelible marker or similar marking device.

As to the contempt conviction, the trespass and assault statutes provide:

§ 3503. Criminal trespass

(b) Defiant trespasser.--

(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(i) actual communication to the actor; or

(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or

(iii) fencing or other enclosure manifestly designed to exclude intruders.

§ 2701. Simple assault

(a) Offense defined.--A person is guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

(2) negligently causes bodily injury to another with a deadly weapon; or

(3) attempts by physical...