Commonwealth v. Baker
Commonwealth v. Baker
Opinion of the Court
OPINION
We granted allocatur in this matter to assess the validity of a judgment of sentence imposed for indirect criminal contempt, upon an asserted violation of a temporary protection order under the Protection From Abuse Act.
Two deputy sheriffs undertook the task of serving the order upon Baker at the York County Prison, where he was incarcerated for unrelated charges. Baker was brought to the prison admissions area, at which time the order was read and explained to him, and he acknowledged receipt in writing. Subsequently, while departing the admissions area, Baker said, “I’m going to kill this bitch.” Overhearing this statement, the deputies lodged a criminal complaint against Baker in the nature of indirect criminal contempt, alleging a violation of the temporary protection order. The trial court scheduled
At the hearing, the parties stipulated to the above facts, and the trial court found Baker guilty and sentenced him to “time served to six-months,” the latter representing the maximum penalty available under the PFA for the offense of indirect criminal contempt. See 23 Pa.C.S. § 6114(b). The trial court found that N.B. was the subject of Baker’s statement, but noted that the record did not reflect that N.B. had ever been informed of the statement. However, the trial court did not believe that the statement needed to be communicated to N.B., since “threat” was defined as “an expression of an intention to inflict pain, injury or evil...” and the statement was clearly a threat which applied to N.B. Trial court order at 3, 4. Moreover, the court was persuaded by the fact that Baker knew of the court order, yet uttered a threat to kill N.B. in deliberate disregard of that order. Based upon these factors, the court concluded that Baker’s conduct, uttering a threat in the presence of third parties, constituted indirect criminal contempt.
On appeal, Baker asserted that under the facts of this case, the evidence was insufficient to find him guilty of indirect criminal contempt. In an en banc opinion, split 5-4, a majority of the Superior Court agreed with Baker and vacated the trial court’s judgment of sentence.
Baker responds that the definition of “threaten” should follow that in the Crimes Code as provided for by § 6102(b) of the PFA. The Crimes Code requires that threats be communicated to the victim in order to be considered a crime. 18 Pa.C.S. § 2706 (relating to terroristic threats); 18 Pa.C.S. § 2709 (relating to harassment and stalking). More persuasively, Baker asserts that the order in this case was not
A trial court’s finding of contempt will not be disturbed absent an abuse of discretion. Commonwealth v. Williams, 753 A.2d 856, 861 (Pa.Super. 2000). An appellate court cannot find an abuse of discretion merely for an error of judgment unless, in reaching a conclusion, the trial court overrides or misapplies the law, or its judgment is manifestly unreasonable, or the evidence of record shows that the court’s judgment exercised is manifestly unreasonable or lacking in reason. In re Rose Hill Cemetery Ass’n, 527 Pa. 211, 590 A.2d 1, 3 (1991).
In vacating the judgment of sentence in the instant case, the Superior Court explained that “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.” Baker, 722 A.2d at 720. In order to establish a claim of indirect criminal contempt, the evidence must be sufficient to establish the following four elements:
(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.
Id. at 721 (citing Diamond v. Diamond, 715 A.2d 1190, 1196 (Pa.Super. 1998)). In determining that the evidence was insufficient to support the charge in the instant case, the court focused on the first element, that the order must be definite, clear and specific, finding that this element was critical “because [Baker] has been charged -with a crime for violating that order.” Id.
The court reasoned that while the order instructed Baker that he could not threaten N.B., it left uncertainty as to what type of communication is prohibited. Specifically, the order
In a dissenting opinion, Judge Eakin, joined by Judge Lally-Green, maintained that in order to serve the underlying purpose of the PFA, it was irrelevant whether the statement was made in the victim’s presence or communicated to her. See Baker, 722 A.2d at 728 (Eakin, J., dissenting). Thus, the focus of the contempt proceeding should properly be upon “what Baker said, not who heard him say it.” Id. Similarly, in a separate dissenting opinion, Judge Orie Melvin, joined by Judge Stevens, believed that the conduct in this case amounted to a threat and to hold otherwise eviscerated the purpose and goals of the PFA.
In the instant case, the analysis employed by the majority of the Superior Court is persuasive. In order to be found guilty of indirect criminal contempt, the order limiting the conduct must do so in a clear and definite manner. The Superior Court did not disregard the fact that the statement was threatening in nature, but reasoned that “[wjhether the order prohibited a threatening statement which merely referred to the plaintiff or whether such a statement had to be made in the plaintiffs presence or in some manner to subject her to fear is uncertain. Thus, we cannot say that the order clearly and specifically precluded the conduct exhibited by [Baker].” Baker, 722 A.2d at 722. We agree with this reasoning.
This opinion was reassigned to this author.
. Act of December 19, 1990, P.L. 1240, No. 206 (as amended, 23 Pa.C.S. §§ 6101-6118) ( hereinafter "the PFA”).
. Although the PFA requires that, upon the filing of a petition containing such allegations, a trial court shall conduct an ex parte proceeding, see 23 Pa.C.S. § 6107(b), neither the record of this appeal nor the docket in the underlying PFA case reflects that any such proceeding occurred in the instant case. However, neither party raised any challenge to this procedural defect in their briefs to this court, nor at any time during the pendency of this case.
. A three-judge panel of the Superior Court initially reversed the trial court's order, and the Commonwealth subsequently sought and obtained reargument before the court en banc.
. Although the term of Baker’s sentence has expired, we will not treat the question presented as moot. In light of the relatively short length of the maximum sentence available for indirect criminal contempt of a PFA order (six months, 23 Pa.C.S. § 6114(b)), the issue would appear
. In support of its position, the Commonwealth points to the following definition of “threat”:
1: an indication of something impending and usu. undesirable or unpleasant: as a: an expression of an intention to inflict evil, injury, or damage on another usu. as retribution or punishment for something done or undone b: expression of an intention to inflict loss or harm on another by illegal means and esp. by means involving coercion or duress of the person threatened.
Appellant's Brief at 9 (citing Webster’s 3rd International Dictionary of the English Language at 2382).
. Amicus, Women Against Abuse, has filed a brief in support of the Commonwealth's position. Amicus argues that the distinction between the purpose of tire Crimes Code and the PFA — the purpose of the crimes code is to punish past conduct, whereas the purpose of the PFA is to prevent abusive behavior before it occurs — makes clear that "threats” as envisioned by the PFA encompasses any threat towards the victim regardless of whether it was communicated to the victim. The argument made by amicus follows the reasoning set forth in the dissenting opinions.
Concurring Opinion
concurring opinion
The order under review providing for temporary protection from abuse barred Baker from “abusing, harassing, threatening and stalking [N.B.] or placing her in fear of abuse in any place where she may be found.” The majority finds such directive insufficiently specific to proscribe his public expression of an intent to kill N.B. In reaching this conclusion, the majority adopts the reasoning of the Superior Court majority to the effect that, although Baker’s expression was “threatening in nature,” the protection order failed to apprise whether such statements were prohibited only in N.B.’s presence or if communicated to her. The majority does not advise, however, from what portion of the order it deems the uncertainty to arise.
Certainly, as the majority effectively concedes, there should be no uncertainty that the proscription against “threatening” would generally bar public expressions of an intent to kill another — the common understanding of the term does not entail an element of presence or communication vis-á-vis the intended victim. See, e.g., Webster’s New World College Dictionary (4th ed. 1999) (defining the term “threat” as “an expression of intention to hurt, destroy, punish, etc.”). It may be, then, that the majority relies upon the order’s employment
Significantly, the order under consideration is, for all intents and purposes, identical to the standard form of order for temporary protection from abuse set forth in Rule of Civil Procedure 1905. See Pa.R.C.P. No.1905 (prescribing in the standard form of order that “[djefendant shall not abuse, stalk, harass, threaten the Plaintiff or any other protected person in any place where they might be found”). Presently, therefore, the Court is not merely deciding a case; rather, it is effectively determining the scope of all temporary orders for protection from abuse as implemented through the directive of Rule 1905. The majority’s decision means that, unless and until Rule 1905 is amended, all subjects of temporary protection from abuse orders are free to publicly express their intentions to inflict harm upon the petitioner, so long as there is no evidence of presence or communication. In this regard, I share the concern expressed in the Superior Court dissent that permitting such conduct, which is clearly disrespectful of the court’s intervention, would thwart important purposes of the Act. See Commonwealth v. Baker, 722 A.2d 718, 724 (Pa.Super. 1998)(Orie Melvin, J., dissenting)(emphasizing the Act’s aim of reacting to early signs of abuse and preventing more serious abuse from occurring, as well as its numerous provisions which enable courts to respond quickly and flexibly to advance warnings of abuse).
While I have little difficulty concluding that Baker’s statement fell within the contemplation of the court’s order, I concur in the decision to vacate the contempt citation, as I find the record insufficient to support the penalty imposed. The record of the underlying PFA case suggests that the trial court entered the temporary protection order without conducting an ex parte proceeding and without the threshold finding that N.B. faced immediate danger. See generally 23 Pa.C.S. § 6107(b). Indeed, since N.B. apparently did not pursue the matter beyond the mere filing of her petition, there is no
. Notably, N.B. herself ultimately became the subject of contempt proceedings initiated by the court for her failure to pay prescribed costs after failing to pursue her petition.
. Significantly, courts have been circumspect in their resort to contempt powers, restraint in this area being particularly appropriate since indirect criminal contempt generally involves violation of parameters of acceptable behavior established by the courts, contrasting with the conventional situation in which the judiciary interprets and applies the laws as established by a legislative body. In this sense, the judiciary is itself a subject of the affront by the contemnor and is necessarily in the position of vindicating its own authority. United Mine Workers of America v. Bagwell, 512 U.S. 821, 840, 114 S.Ct. 2552, 2563, 129 L.Ed.2d 642 (1994). In light of such concerns, the United States Supreme Court has indicated that courts are obliged to employ " 'the least possible power adequate to the end proposed.' ” Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 632, 107 L.Ed.2d 644
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellant, v. Gregory A. BAKER, Appellee
- Cited By
- 50 cases
- Status
- Published