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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIK SCHARRITTER : : Appellant : No. 1251 WDA 2020 Appeal from the Judgment of Sentence Entered November 12, 2020 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-MD-0000691-2020

BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.

DISSENTING STATEMENT BY MUSMANNO, J.: FILED: OCTOBER 6, 2021 I note my dissent from the Majority’s determination that Erik Scharritter (“Scharritter”) intentionally violated the trial court’s Protection From Abuse (“PFA”) Order.

The PFA Act1 permits a court to hold an individual subject to a protection order in contempt of such order and to punish the defendant in accordance with the law. 23 Pa.C.S.A. § 6114(a). This Court has described the elements required for a finding of indirect criminal contempt (“ICC”) as follows: Where a PFA order is involved, an [ICC] charge is designed to seek punishment for violation of the protective order.... To establish [ICC], 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 ____________________________________________

1 See 23 Pa.C.S.A. §§ 6101-6122.

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been volitional; and 4) the contemnor must have acted with wrongful intent.

Commonwealth v. Brumbaugh, 932 A.2d 108, 110 (Pa. Super. 2007) (some capitalization altered, emphasis added).

The uncontradicted evidence established that Scharritter had contacted his counsel for advice as to whether performing a scheduled landscaping service at a neighbor’s property would violate the terms of the trial court’s PFA Order. This evidence, in fact, demonstrated Scharritter’s intent not to violate the trial court’s Order. Thus, I would reverse the judgment of sentence.

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