J-S17035-22
2022 PA Super 155
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE BOYER :
:
Appellant : No. 1165 EDA 2021
Appeal from the Order Entered May 10, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: MC-51-MD-0000039-2020
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
OPINION BY STABILE, J.: FILED SEPTEMBER 08, 2022
Appellant, Andre Boyer, appeals from the May 10, 2021 order entered
in the Court of Common Pleas of Philadelphia County finding him guilty of
indirect criminal contempt. 23 Pa.C.S.A. § 6114.1,2 Appellant argues that the
trial court erred by denying his due process rights, that it lacked jurisdiction
to enter the order, and that the evidence was insufficient to support a finding
of indirect criminal contempt. Upon review, we affirm.
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1“An indirect criminal contempt consists of the violation of an order or decree
of a court which occurs outside the presence of the court[.]” Commonwealth
v. Mayberry, 255 A.2d 548, 551 (Pa. 1969) (citations omitted).
2 Appellant “is a former Philadelphia Police Department (PPD) police officer
and has reported on police corruption within the [PPD] for over six years as
character personality, Serpico, on news social media, Serpico News.”
Appellant’s Brief at 6 (footnote omitted).
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Appellant’s conviction stems from the service of a subpoena directing
him to appear as a witness in a grand jury investigation. As the trial court
explained:
During the period of July, 2019 through March, 2021, the trial
court was the supervising judge of the Thirtieth Investigating
Grand Jury for Philadelphia County. As part of its responsibilities,
the trial court swore in all witnesses who were to be presented to
the investigating grand jury and presided over any proceedings
related to the investigating grand jury, including violations of the
oath of secrecy. On September 5, 2019 a hearing regarding grand
jury investigation C-22 was held. The purpose of this hearing was
to give Appellant the witness oath and the grand jury oath of
secrecy.[3] Initially, prior to Appellant being present and before
the administration of the oaths to Appellant, the only parties
present [were] the assigned Assistant District Attorney, Tracy
Tripp, a court reporter, and the trial court.
During this initial portion of the hearing, the Commonwealth
recounted that, prior to September 5, 2019, Sergeant Detective
Gerry Rocks requested Andre Boyer [] to come to the District
Attorney’s Office. Sergeant Rocks did not inform Appellant that
this was so he could be served with a grand jury subpoena related
to grand jury investigation C-22. Appellant did not appear,
instead, Appellant sent Sergeant Rocks an email accusing the
District Attorney’s Office of trying to trick him into coming in so
that he could be arrested.
A few days later, Detective Frank Wallace served a grand jury
subpoena on Appellant. He explained to Appellant it was a grand
jury subpoena, told Appellant the date that he was requested to
appear, and explained the sealing order and its impact on
Appellant, i.e., Appellant is unable to discuss any of this
information. Apparently, while Detective Wallace was serving the
subpoena, Appellant was recording and live streaming all that was
transpiring onto social media from his phone in his pocket.
Appellant repeated what Detective Wallace explained to him to
show his understanding of the subpoena and the sealing order and
____________________________________________
3 We have taken the liberty of substituting “Appellant” for “the Defendant” in
this and other excerpts quoted herein from the trial court’s opinion.
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recorded all of this on his phone in his pocket. Within 15 to 20
minutes after serving the subpoena and getting in his car to leave,
Detective Wallace received numerous notifications from police
officers who recognized him from Appellant’s live stream. The
Commonwealth was notified by a detective in Internal Affairs that
the service of the subpoena had been live streamed, but by the
time they had been notified, Appellant’s live streamed video was
gone and could not be retrieved by the Commonwealth.
On September 5, 2019, Appellant appeared before [the] trial court
related to grand jury investigation C-22 so that he could be sworn
in as a witness, advised of his rights and duties as a witness, and
so that he could receive the oath of secrecy related to grand jury
witnesses. As is common in grand jury matters involving only the
administration of oaths to witnesses, Appellant was not
represented by an attorney. However, on this date during the
administration of the witness oath, he was advised of his right to
retain an attorney or have an attorney appointed to represent him
during the time that he would be a witness testifying before the
grand jury.
On this date, Appellant was informed about what the grand jury
investigation was related to; who the target of that investigation
was, and what information he would be asked to supply to the
grand jury. At the September 5, 2019 hearing, the trial court
issued a verbal order directing Appellant:
Again, Mr. Boyer, nothing that is being said in this room,
nothing that you told Ms. Tripp about the nature of the
investigation, and nothing about your testimony itself[,]
what you say or what you learn during the course of this
investigation as it relates to you being a witness before the
Grand Jury is something you can reveal. You already
revealed certain things on your blog or news media website.
Obviously, that is not covered because that happened way
before this conversation, but if there is anything that you
learn as a result of you being a witness that cannot make it
to your website. . . . You have the obligation to give
continuing information to Ms. Tripp. . . . What you have to
do is give the information that you have in your possession
at the time that you are being asked questions, you are to
be truthful and accurate.
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N.T. 09/05/2019 at 26-29. The trial court further instructed
Appellant, “. . . if you get more information from your sources
about this, it doesn’t come from your testimony, it comes from
something else, are you allowed to publish that[?] And it pains
me, but I suspect the answer is yes. In that publishing you
certainly cannot say, oh, by the way this is a grand jury
investigation.” Id. at 29-30.
Prior to the date that he was scheduled to testify before the
investigating grand jury, Appellant was arrested. Appellant was
arrested by Detective Frank Wallace for a Violation of the Uniform
Firearms Act (VUFA 6108)[4]. Detective Wallace arrested
Appellant prior to Appellant giving testimony because Appellant
was informed of the warrant for his arrest and attempted to flee.
Subsequently, on August 23, 2020, Appellant posted a video to
his media website, Philly Serpico News, titled, “Corruption in Philly
Serpico News.” The video and post stated that a Philadelphia 35th
District Detective arrested a grand jury witness moments before
he was set to testify against a high-ranking Philly police boss, then
put a contract hit out on his life. Appellant further alleges in his
video that the subject of the grand jury matter is [that] a high-ranking staff inspector assaulted a Temple University student in
his police car and that the grand jury is set to indict the high-ranking staff inspector.
On October 29, 2020, a hearing regarding grand jury investigation
C-22 was held. The trial court issued a Rule to Show Cause as to
why Appellant should not be held in indirect criminal contempt of
a Court Order because Appellant had violated the trial court’s
order and the grand jury secrecy oath by posting the
aforementioned video on August 23, 2020. At the time of the
hearing, the post and video were still live on the website.
Additional evidence and testimony was presented at a second
hearing on this matter on April 20, 2021.
On May 6, 2021, a final hearing regarding grand jury investigation
C-22 was held. The trial court had previously held its decision
whether to find Appellant in indirect criminal contempt under
advisement from the April 20, 2021 hearing. The trial court found
____________________________________________
4 Section 6108 relates to carrying firearms on public streets or public property
in Philadelphia.
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Appellant to be in indirect criminal contempt of its verbal order
issued on September 5, 2019. The trial court did not impose a
fine or incarceration, but ordered that Appellant be precluded and
ordered not to reference any additional grand jury material related
to what he was told the investigation was about on his media
website in written, oral, or audio format.
Trial Court Rule 1925(a) Opinion, 8/31/21, at 3-6 (some citations to notes of
testimony from the May 6, 2019, October 29, 2020, April 20, 2021, and May
6, 2021 hearings omitted).
The trial court’s May 10, 2021 order states:
Now, this 10th day of May, 2021, [Appellant] having been found
guilty of indirect criminal contempt of this court’s order dated
September 5, 2019, [Appellant] shall not post any grand jury
materials or discuss any matters related to any grand jury
investigation or targets on any news media website or social
media websites.
[Appellant] is not to engage in any conversation or discussions
related to grand jury materials, grand jury targets, or grand jury
witnesses, related to their involvement with the grand jury, with
anyone other than his attorney.
[Appellant] is not to utilize any video pertaining to grand jury
materials, targets, witnesses, or individuals in any capacity.
If [Appellant] wishes to discuss these matters or utilize video for
any purpose, he is to seek leave from the court to disclose these
materials for these other purposes. Upon such motion a hearing
will be scheduled.
Order, 5/10/21, at 1 (some capitalization omitted).
Appellant filed a timely appeal from the May 10, 2021 order. Both he
and the trial court complied with Pa.R.A.P. 1925.
Appellant asks us to consider the following issues on appeal:
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A. Due Process – Whether the trial court erred in denying
Appellant’s due process rights in violation of Article 1, Section
9 of the Pennsylvania Constitution and the 14th Amendment of
the U.S. Constitution, where there was no notice of an indirect
criminal contempt charge prior to the contempt hearing
commencing.
B. September 5, 2019 Nondisclosure Order
1. Verbal Order – Whether the trial court erred in finding
indirect criminal contempt for violating an order, as the
alleged violated verbal order given September 5, 2019,
and not followed by a written order, is not enforceable to
find Appellant in indirect contempt.
2. 42 Pa.C.S. § 4549(d) Cause Hearing – Whether the trial
court lacked jurisdiction to enter a September 5, 2019
witness nondisclosure order where Appellant moved for
the release of the unredacted transcript and there was
no evidence that a cause hearing prior to the
nondisclosure order was held pursuant to 42 Pa.C.S.
§ 4549(d).
C. May 10, 2021 Nondisclosure Order
1. 42 Pa.C.S. § 4549(d) Cause Hearing – Whether the trial
court lacked jurisdiction to enter the May 10, 2021 order
prohibiting Appellant from posting any grand jury
materials or discussing any matters related to “any”
grand jury investigation, for which he has not been called
as a witness and there is no evidence that a cause
hearing prior to the nondisclosure order was held
pursuant to 42 Pa.C.S. § 4549(d).
2. Overbreadth – Whether the trial court’s May 10, 2021
order is overly broad by making everything connected
with grand jury investigations untouchable, and violates
Appellant’s First Amendment right of freedom of speech
and press.
Whether the trial court erred when ordering Appellant to
file a motion with investigating grand jury supervising
judge, the Hon. Kai N. Scott[, the trial judge,] for leave
or in limine requesting permission to present his defense
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and admit evidence in another case pending in Municipal
Court.
D. Sufficiency of Evidence
1. Definite, Clear and Specific Nondisclosure Order –
Whether the evidence was insufficient to support a
finding of indirect criminal contempt, as the September
5, 2019 verbal order was not definite, clear and specific,
and left doubt or uncertainty in the mind of the person to
whom it was addressed of the conduct prohibited,
particularly given that Appellant showed lack of
understanding and had no attorney present.
2. Wrongful Intent – Whether the evidence was insufficient
to support a finding of indirect criminal contempt, as the
Commonwealth failed to show that Appellant acted with
wrongful intent to disobey a court order.
Appellant’s Brief at 2-4.
In Commonwealth v. Lambert, 147 A.3d 1221 (Pa. Super 2016),
this Court explained:
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).
When 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).
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Id. at 1226 (cleaned up).
In his first issue, Appellant contends the trial court violated his due
process rights because there was no notice of an indirect criminal contempt
charge prior to the commencement of the contempt hearing. He complains
the rule to show cause directing him to appear at the October 29, 2020 hearing
“failed to provide notice of the specific accusations against Appellant, and if
the Commonwealth is seeking fines and/or imprisonment. Appellant had no
notice of whether he was being accused of civil or indirect criminal contempt.”
Appellant’s Brief at 19.5
Appellant’s assertion that he was not given notice of specific accusations
is belied by the statement of his counsel at the beginning of the October 29,
2020 hearing. At that time, his counsel represented that
the defense is that my client did not intentionally try to violate the
court order with respect to violating a secrecy oath. That what he
was trying to do is present his own defense in his criminal case;
and that defense is that he suffered witness intimidation. So what
was being revealed was not that the particular target of this grand
jury investigation was actually under a grand jury investigation,
but that my client had been intimidated as a witness before the
grand jury.
...
____________________________________________
5Appellant acknowledged that the court clarified during the October 29, 2020
hearing that Appellant was being charged with indirect criminal contempt.
Appellant’s Brief at 19, n.15 (citation to notes of testimony omitted).
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And what you are going to see on this video is not him saying the
target, this particular person is under grand jury investigation and
trying to violate it in that way.
N.T., 10/29/20, at 3-4, 6 (unnecessary capitalization omitted).
The trial court rejected Appellant’s contention regarding lack of notice,
explaining that he was given
more than adequate notice: the supervising investigation grand
jury judge made sure to explain what Appellant could and could
not do . . . [and] also answered any questions Appellant had about
what was permissible to post on his website and what his
obligations were to avoid violating his oath of secrecy; and the
trial court issued a Rule to Show Cause as to why Appellant should
not be held in contempt for violation of his grand jury secrecy
oath. As such, Appellant’s due process rights were not violated
and he received more than sufficient notice, therefore, the trial
court had proper jurisdiction.
Trial Court Rule 1925(a) Opinion, 8/31/21, at 11-12 (citation to notes of
testimony from October 29, 2020 hearing omitted).
Based on our review of the record, we find that facts support the trial
court’s findings and that the court did not abuse its discretion in determining
that Appellant’s due process rights were not violated. Therefore, we conclude
that Appellant is not entitled to relief on his first issue.
In the first part of his second issue, Appellant argues that the trial court
erred by finding him in contempt because the September 5, 2019 order was
verbal, was not reduced to writing, and was therefore unenforceable.
Appellant’s argument is meritless.
Appellant cites In re Tumpson, 345 A.2d 774 (Pa. Super. 1975), for
the proposition that an oral order has no force or effect. Appellant’s Brief at
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21. In Tumpson, counsel for a juvenile was convicted of indirect criminal
contempt for allegedly advising a client to disobey a court order. However,
no order had been issued. Rather, the trial court orally advised a juvenile
probation officer that a hearing would be held in the juvenile’s case. The
probation officer told the judge he would notify the juvenile, and did so.
When the juvenile did not appear for the hearing, a bench warrant for
his arrest was executed and the hearing was rescheduled. At the rescheduled
hearing, the juvenile explained that he did not appear at the first hearing
based on advice of his counsel, Tumpson. In response, the court issued a
contempt citation and ordered counsel to show cause why he should not be
held in contempt.
At the hearing on the rule, counsel requested a continuance to obtain
his own counsel but also requested a copy of the order that he purportedly
advised the juvenile to disobey. The court did not provide a copy of the
order, acknowledging it was oral. The court allowed a continuance but
eventually found counsel in contempt and fined him $50.
On appeal to this Court, we reversed, finding the oral “order” had no
force or effect. As the Court observed:
Decrees and orders of court of record cannot be carried in the
breast of the judge who makes them. If any regard is to be had
to the regular and orderly conduct of judicial proceedings in such
courts, all their orders, rules, and degrees must be recorded. The
verbal order referred to never was recorded, and its first and only
appearance in the case is the reference made to it in the appellee’s
answer to appellant’s rule to show cause.
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Tumpson, 345 A.2d at 776 (quoting Commonwealth ex rel. Magaziner v.
Magaziner, 253 A.2d 263, 267 (Pa. 1969)).
We find that Tumpson is inapposite. There, the judge conveyed
information about a scheduled proceeding to a probation officer who agreed
to convey it to the juvenile. In contrast, here the trial court issued an order
from the bench that was transcribed, thus creating a record of the order. As
the trial court observed, “[L]itigants must be able to rely on representations
made by the court, and it would be inequitable and detrimental to the
functioning of the judicial system if such on-the-record representations could
not be trusted.” Trial Court Rule 1925(a) Opinion, 8/31/21, at 12 (quoting
Jackson v. Hendrick, 746 A.2d 574, 576 (Pa. 2000) (plurality)).
As the Commonwealth notes:
[Appellant] was informed at the September 5, 2019 hearing that
he was not permitted to reveal any information regarding the
grand jury investigation. He repeatedly stated that he understood
the court’s order and would follow it. Although the order was
provided to him orally, it was stenographically recorded on the
record, as were Appellant’s representations that he understood
and would follow the order. Thus [his] assertion that the order
“was not reduced to writing” and therefore was “not enforceable”
against him—or, in other words, could be completely ignored by
him without any consequences—is baseless.
Commonwealth Brief at 22. We agree. Despite his assertions to the contrary,
Tumpson does not afford Appellant any relief in the instant action.
In the second part of his second issue, Appellant cites 42 Pa.C.S.A.
§ 4549(d) in support of his contention that the trial court lacked jurisdiction
to enter the September 5, 2019 witness nondisclosure order. Similarly, in the
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first part of his third issue, he cites Section 4549(d) in support of his argument
that the court lacked jurisdiction to enter the May 10, 2021 nondisclosure
order relating to grand jury materials. The cited provision (Investigating
Grand Jury Proceedings – Disclosure of Proceedings by Witness) directs that
“[n]o witness shall be prohibited from disclosing his testimony before the
investigating grand jury except for cause shown in a hearing before the
supervising judge. In no event may a witness be prevented from disclosing
his testimony to his attorney.” 42 Pa.C.S.A. § 4549(d) (emphasis added).
The Commonwealth highlights the fact that Section 4549(d) precludes
prohibition of a witness’s disclosure of “his testimony.” However, Appellant
never testified before the grand jury. Therefore, he could not have been found
in contempt based on disclosure of his own testimony. Instead, he was found
in contempt “because, in violation of the judge’s order, [Appellant] revealed
that there was a grand jury proceeding and the substance of the matter it was
investigating.” Commonwealth Brief at 25. “Since a cause hearing need be
held only when a judge is prohibiting a witness from disclosing his ‘testimony,’
and since [Appellant] ultimately had no testimony to disclose, the question of
whether a proper cause hearing was held is moot and cannot serve as a basis
for relief.” Id. Moreover, in any event, the Commonwealth contends, the
court did hold a proper cause hearing before issuing its order. Id. at 26.
In addition to claiming lack of jurisdiction regarding the May 10, 2021
order, Appellant argues in the second part of his third issue that the May 2021
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order is overly broad. In response, the Commonwealth not only recognized
the important governmental interest in protecting the secrecy of grand jury
proceedings, Commonwealth Brief at 32, but also noted that Appellant “had
already directly violated the court’s earlier nondisclosure order.” Id. at 31.
The Commonwealth highlighted Appellant’s claim that he was confused by the
order and did not realize posting a video on the Internet that disclosed the
existence and subject of the investigation was prohibited, a claim dispelled by
a review of Appellant’s own testimony. The Commonwealth also correctly
observed that the May 2021 order was necessary to ensure that Appellant “did
not once again violate the secrecy of the grand jury proceedings, and [to
avoid] confusion, real of feigned, on [Appellant’s] part regarding what
information he was precluded from revealing.” Id.
Addressing and rejecting Appellant’s assertions regarding both the
September 2019 and May 2021 orders, the trial court explained:
On September 5, 2019, the supervising judge presiding over the
investigating grand jury issued both a secrecy oath and a
nondisclosure order to Appellant. The trial court had jurisdiction
to enter both the September 5, 2019 witness nondisclosure order
and the May 10, 2021 order prohibiting Appellant from posting
any grand jury materials because Appellant had received,
understood, and agreed to the secrecy oath and nondisclosure
order. During the hearing held on September 5, 2019, one of the
first questions Appellant was asked about was regarding the grand
jury subpoena and the sealing order he received while
livestreaming. The trial court had a long conversation with
Appellant regarding the secrecy oath, answered any questions
Appellant had, and the May 10, 2021 order essentially reduced
the trial court’s verbal order to a written order and re-emphasized
the secrecy aspect of his previous oath.
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The cause hearing for the nondisclosure order was held prior to
the date that Appellant was sworn in on September 5, 2019,
without the presence of Appellant. The Commonwealth was the
party requesting the nondisclosure order and explained why there
should be a nondisclosure order issued. As with all grand jury
matters, a witness (in this case Appellant) is not entitled to hear
relevant information about what other witnesses may say that
may have gone to the supervising judge’s determination that the
nondisclosure order was appropriate. In the instant matter, a
nondisclosure order was deemed appropriate, in part, based on
Appellant’s prior conduct of recording being served with the grand
jury subpoena and his actions of holding himself out as the press.
Trial Court Rule 1925(a) Opinion, 8/31/21, at 10-11 (citations to notes of
testimony omitted).
We dismiss Appellant’s suggestion that the May 2021 order violated his
freedom of speech and somehow impaired his ability to prepare a defense in
his unrelated VUFA case. As the Commonwealth contends, the order “simply
requires [Appellant] to obtain the supervising judge’s permission before
disclosing grand jury information, and this requirement is necessary because
[Appellant] has blamed his failure to follow the earlier nondisclosure order on
his inability to understand what the order covered.” Commonwealth Brief at
32. With regard to his defense of the VUFA charges, the court’s order “permits
[Appellant] to seek leave of court if he has reason to use the grand jury
information,” id. at 33, and can obtain relief, if he can demonstrate how that
information can in anyway be relevant to his firearms charges. Therefore, we
reject any assertion that the order imposes an improper restriction on his
ability to defend himself.
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Based on our review, we conclude that trial court had jurisdiction to
enter both the September 5, 2019 and May 10, 2021 orders, and further
conclude that, under the circumstances of this case, the May 10, 2021 order
is not overly broad and does not preclude Appellant from seeking leave of
court to disclose materials. Finding no abuse of discretion on the part of the
trial court, we shall not disturb its conclusions. Appellant’s second and third
issues fail for lack of merit.
In his fourth issue, Appellant challenges the sufficiency of the evidence
supporting a finding of indirect criminal contempt. He argues that the order
was not definite, clear, or specific, and further contends that the
Commonwealth failed to demonstrate that Appellant acted with wrongful
intent to disobey a court order.
In Commonwealth v. Walsh, 36 A.3d 613 (Pa. Super. 2012), this
Court reiterated:
Our standard of review in assessing whether sufficient evidence
was presented to sustain [an a]ppellant’s conviction is wellsettled. The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [this] test, we may
not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
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evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Id. at 618-19 (quoting Commonwealth v. Brumbaugh,
932 A.2d 108, 109-
10 (Pa. Super. 2007) (citations omitted)). Again,
[t]o 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.
Id. (quoting Brumbaugh,
932 A.2d at 110) (citation omitted).
Here, the trial court concluded that its order was sufficiently definite,
clear, and specific “as to leave no doubt of the conduct prohibited in
[Appellant’s] mind. [He] was clearly told that he could not speak about
anything that was being said in the room, including the nature of the
investigation and that a grand jury investigation even existed.” Trial Court
Rule 1925(a) Opinion, 8/31/21, at 14. Further, Appellant “was permitted to
ask questions [if] he was unclear about anything that was stated to him, which
he made sure to ask, and there was nothing ambiguous about the trial court’s
verbal order.” Id. The court found that Appellant’s statement during the
September 5, 2019 hearing did not exhibit a lack of understanding on his part.
Rather, his testimony “actually shows that he does, in fact, understand that
he is not permitted to speak about the grand jury investigation as he states,
‘I wouldn’t do that,’ in response to being explicitly told not to speak about the
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grand jury investigation.” Id. We agree with the trial court that the order
was sufficiently definite, clear, and specific, satisfying the first prong of the
test. Further, it is unquestioned that Appellant had notice of the order, as
reflected in his statement that he would not speak about the investigation,
satisfying the second prong.
With respect to the act being volitional and the contemnor’s wrongful
intent, this Court has held that “[w]rongful intent will be found where the
contemnor knows or reasonably should be aware that his conduct is
wrongful.” Stewart v. Foxworth, 65 A.3d 468, 472 (Pa. Super.
2013) (quoting Himes v. Himes,
833 A.2d 1124, 1126 (Pa. Super.
2003)). “It is imperative that trial judges use common sense and consider
the context and surrounding factors in making their determinations of
whether a violation of a court order is truly intentional before imposing
sanctions of criminal contempt.” Commonwealth v. Haigh,
874 A.2d
1174, 1177 (Pa. Super. 2005), appeal denied,
887 A.2d 1240 (Pa.
2005) (emphasis in original).
Here, the trial court recognized that “[w]rongful intent can be inferred
if the [Appellant’s] act had substantial certainty of being in violation of the
order.” Id. at 15 (citing Brumbaugh,
932 A.2d at 110). Further:
[Appellant] knew that by recording the video and mentioning the
grand jury investigation that he was in direct violation of the
September 5, 2019 order, yet he chose to release the video on his
website anyway. [His] assertion that he recorded and released
the video on his website as some sort of defense to his pending
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case holds no persuasiveness as it was the wrong forum. [He]
should have presented evidence during trial of his pending case,
not posting a video publicly on his website, which instead
appeared retaliatory towards the Commonwealth or the police
department and indicated wrongful intent on [Appellant’s] part.
Id. (citation to notes of testimony omitted). Not only does his conduct support
the conclusion that he acted with wrongful intent, but also his suggestion that
he released the video as part of his defense confirms that his conduct was
volitional.
Viewing the evidence in a light most favorable to the Commonwealth,
we agree that the evidence was sufficient for the trial court, as factfinder, to
conclude that every element of the crime of indirect criminal contempt was
established beyond a reasonable doubt. Appellant’s fourth issue fails.
Again, “when reviewing a contempt conviction, much reliance is given
to the discretion of the trial judge” and “[w]e will reverse a trial court’s
determination only when there has been a plain abuse of discretion.”
Lambert, 137 A.3d at 1226 (citations omitted). Finding no “plain abuse of
discretion” in the trial court’s determination, we shall not disturb it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2022
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