Summary
In Commonwealth v. Stevenson, 283 A.3d 196 (Pa. 2022), our Supreme Court held that "to convict a defendant of indirect criminal contempt for violating a PFA order, the Commonwealth must demonstrate beyond a reasonable doubt that, at the time of the violation, the defendant had actual knowledge of the PFA order, regardless of how the defendant gained this knowledge."
Summary of this case from Commonwealth v. McKnightOpinion
No. 21 WAP 2021
09-29-2022
COMMONWEALTH of Pennsylvania, Appellee v. Viktor L. STEVENSON, Appellant
Brandon Paul Ging, Esq., Allegheny County Public Defender's Office, for Appellant. Keaton Carr, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, Paul R. Scholle, Esq., for Appellee
Brandon Paul Ging, Esq., Allegheny County Public Defender's Office, for Appellant.
Keaton Carr, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, Paul R. Scholle, Esq., for Appellee
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
CHIEF JUSTICE BAER A trial court found Victor Stevenson ("Appellant") guilty of indirect criminal contempt for violating a final order issued pursuant to the Protection from Abuse ("PFA") Act, 23 Pa.C.S. §§ 6101 - 6122. On appeal to the Superior Court, Appellant argued that the evidence of record was insufficient to support his conviction because the Commonwealth failed to present adequate proof that he received proper notice of the final PFA order from a member of law enforcement or a person tasked by the trial court to provide such notice. The Superior Court rejected this argument, holding that the subject of a final PFA order must have notice of the order to be found guilty of indirect criminal contempt for violating the order but that it is unnecessary for a member of law enforcement or a person designated by the court to provide that notice.
We granted allowance of appeal to review the intermediate court's decision. For the reasons that follow, we hold that, to convict a defendant of indirect criminal contempt for violating a PFA order, the Commonwealth must demonstrate beyond a reasonable doubt that, at the time of the violation, the defendant had actual knowledge of the PFA order, regardless of how the defendant gained this knowledge. Here, the Commonwealth met that burden; accordingly, we affirm the judgment of the Superior Court.
I. Background
On August 23, 2019, Ashley Yates ("Yates"), Appellant's former fiancé with whom he had resided, filed an ex parte petition seeking the issuance of a temporary PFA order against Appellant. It is undisputed that a temporary PFA order was issued and served on Appellant on that date. Appellant was advised that a hearing to adjudicate a final PFA order was scheduled for September 9, 2019. Appellant, however, failed to appear at the hearing. After the hearing, the trial court entered a final PFA order that was to be in effect until September 9, 2021. Among other things, the order directed that Appellant was evicted and excluded from Yates’ home.
On September 12, 2019, Yates filed a complaint charging Appellant with indirect criminal contempt for violating the final PFA order. Appellant's non-jury trial for that charge occurred on October 25, 2019. Yates was the first witness to testify at the trial. She stated that her video cameras captured Appellant outside of her home in the early morning hours of September 12, 2019.
The only other witness to testify at Appellant's trial was Danielle Sutton ("Sutton"), Yates’ cousin. Sutton testified that, at 3:30 a.m. on September 12, 2019, she was sleeping at Yates’ home when she was alerted that someone was in the basement of the home. Sutton went to the basement, where she discovered Appellant. Sutton informed Appellant, "You can't be here." N.T., 10/25/2019, at 15. According to Sutton, Appellant told her that he was leaving, and he asked her not to call the police. Sutton responded, "You cannot be here. You have a two-year violation. You cannot be here." Id. at 16. Appellant then left with a fan and heater. Notably, when the prosecutor directly asked Sutton whether she informed Appellant "that there was a PFA in effect," she said, "Yes ... [a]t 3:30 in the morning." Id. at 17.
Sutton testified that, when she woke up the next morning, she noticed that video surveillance cameras at the home were turned up toward the ceiling. Consequently, she called the police, who came to the home and observed the cameras. Sutton informed the police of what had occurred in the early morning hours when she encountered Appellant. She also indicated that the family dog was missing. The police then left Yates’ home.
Sutton further testified that, approximately 30 to 45 minutes after the police left Yates’ home, Appellant walked up to the front of Yates’ home with the family dog, causing Sutton to state once more that Appellant could not be there. She also informed Appellant that the police had just left and that she was going to call them again. Appellant then stated, "I don't care. [Yates] knows how I am." Id. at 16.
Following a bench trial, the trial court found Appellant guilty of indirect criminal contempt. On January 31, 2020, the court sentenced Appellant to six months of probation. Appellant timely filed a notice of appeal.
II. Appeal to the Superior Court
In the Superior Court, Appellant argued that, to prove him guilty of indirect criminal contempt, the Commonwealth had to establish the following four elements beyond a reasonable doubt: "(1) the order in question 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." Appellant's Superior Court Brief at 14 (citations omitted).
Appellant averred that the Commonwealth's evidence failed to meet the second of these four elements, as it allegedly did not demonstrate that Appellant had notice of the final PFA order when he went to Yates’ home on September 12, 2019. Relevant to the instant appeal, Appellant took the position that, to prove that he received notice of the final PFA order, the Commonwealth was required to demonstrate that this notice was provided to him by a member of law enforcement or by someone designated by the trial court. Because the Commonwealth did not present any such evidence at his trial, Appellant insisted that the Superior Court should reverse his sentence and conviction for indirect criminal contempt. In support of this position, Appellant relied primarily upon the Superior Court's decision in Commonwealth v. Padilla , 885 A.2d 994 (Pa. Super. 2005), which we now briefly summarize.
On the afternoon of November 12, 2004, Padilla's victim received an emergency PFA order stating that Padilla was to have no contact with the victim for 18 months. Approximately two days later, the victim informed the police of the PFA order and the fact that Padilla had threatened her over the phone and attempted to enter her home. When police arrived at the victim's home, she handed an officer her phone, stating that Padilla was on the line. The caller denied that he was Padilla and hung up. The officer called Padilla's cell phone number, leaving a message that the victim had obtained a PFA order against him and that he was to have no contact with her.
Soon thereafter, Padilla returned the officer's call. During that conversation, the officer again informed Padilla of the no-contact order and the consequences of violating it. However, Padilla continued to call, threaten, and harass the victim. Padilla was then served with a copy of the order, and the calls ended. A trial court subsequently found Padilla guilty of indirect criminal contempt for violating the PFA order and sentenced him.
On appeal to the Superior Court, Padilla argued that the telephone conversation that he had with the police officer was insufficient to prove that he received notice of the PFA order. In response, the Superior Court acknowledged that, to establish that Padilla committed indirect criminal contempt, the Commonwealth had to prove beyond a reasonable doubt, inter alia , that Padilla had notice of the PFA order. However, discussing this Court's decision in Commonwealth v. Stallworth , 566 Pa. 349, 781 A.2d 110 (2001), the intermediate court explained that, for purposes of the aggravating circumstance related to the death penalty found at 42 Pa.C.S. § 9711(d)(18), this Court held that "a person who has killed the subject of a protective order becomes death penalty eligible by having actual notice of the order or the constructive equivalent." Padilla , 885 A.2d at 997. Applying that holding, the Padilla court concluded that "the telephone conversations during which [Padilla] was informed of the emergency order and the repercussions of violating it constitute actual notice or its equivalent even in the absence of personal service." Id. Notably, the intermediate court in Padilla found support for this conclusion in 23 Pa.C.S. § 6106(g), which concerns the service of PFA orders and specifically provides, "Failure to serve shall not stay the effect of a valid order." Id. (quoting 23 Pa.C.S. § 6106(g) ).
This statutory subsection explains that the following shall be an aggravating circumstance to be considered by a jury for purposes of determining whether a person convicted of first-degree murder should receive the death penalty:
At the time of the killing the defendant was subject to a court order restricting in any way the defendant's behavior toward the victim pursuant to 23 Pa.C.S. Ch. 61 (relating to protection from abuse) or any other order of a court of common pleas or of the minor judiciary designed in whole or in part to protect the victim from the defendant.
42 Pa.C.S. § 9711(d)(18).
Turning back to the instant matter, the Superior Court rejected Appellant's argument that the Padilla court held that notice of a PFA order must be provided by a member of law enforcement or a person designated by the court. In so doing, the intermediate court stated that "Pennsylvania law makes clear that the Commonwealth may establish the notice element of indirect criminal contempt with evidence showing the defendant received actual notice or possessed equivalent knowledge of a PFA order." Superior Court Memorandum ("Memorandum") at 5 (citing, among other cases, Padilla , 885 A.2d at 997 ). Along these same lines, the Superior Court observed that "Pennsylvania courts have consistently held that, for purposes of proving indirect criminal contempt, verbal communications can adequately convey notice that a PFA order has been entered against the defendant and that a violation of that order places the defendant at risk of criminal sanctions." Id. (citing, among other cases, Commonwealth v. Staton , 614 Pa. 487, 38 A.3d 785, 795 (2012), for the proposition that a witness’ testimony that the victim verbally informed the defendant about a PFA order supported a jury finding that the defendant had sufficient knowledge of the PFA order to be subject to the aggravating circumstance found at 42 Pa.C.S. § 9711(d)(18) ).
In this context, the Superior Court's use of the term "equivalent knowledge" is irrelevant to our analysis and ultimate conclusion, as discussed in detail infra , that the Commonwealth proved that Appellant had knowledge of the final PFA order when he violated it.
Applying this law to the circumstances of Appellant's case, the Superior Court found that the evidence of record demonstrated that Appellant "possessed adequate equivalent knowledge of the PFA [order] at issue" to support his conviction for indirect criminal contempt. Id. at 6. In this regard, the intermediate court reiterated Sutton's testimony that, at 3:30 a.m. on the night in question, she informed Appellant, as he stood in Yates’ basement, "that a PFA order with a two-year duration was in effect and that he was not supposed to be present at Yates’ residence." Memorandum at 6. The court noted that, in response to Sutton, Appellant asked her not to call the police.
The Superior Court further explained that "[o]ther testimony established that Appellant redirected Yates’ security cameras so they could no longer capture images at the property."Id . Next, the court observed that, despite all of these circumstances, Appellant returned to Yates’ home later in the morning of the day in question. The intermediate court opined that Sutton's statements to Appellant, combined with Appellant's conduct, sufficiently demonstrated Appellant's knowledge and understanding of the PFA order.
In addition, the Superior Court rejected Appellant's more particular arguments in favor of reversing his sentence and conviction. First, the intermediate court was unpersuaded "by Appellant's objections asserting no evidence of Appellant's actual receipt of the PFA order on or before September 12, 2019, no evidence of service attempts by or issuance of the order to law enforcement officials, and lack of evidence showing that police authorities advised Appellant about the issuance of the final PFA order and the attendant consequences of disobedience." Id. at 7. According to the court, "Appellant's actual receipt of the final PFA order is not the sole means by which the Commonwealth could prove the notice requirement for indirect criminal contempt. That element may be shown through either actual notice or its constructive equivalent, as occurred here." Id. (citing Padilla , 885 A.2d at 997 ).
Lastly, the Superior Court disagreed with Appellant's claim that police officials were required to inform him of the issuance of the final PFA order and the consequences of violating it. The court opined, "Although the Commonwealth established the notice requirement in Padilla through an officer's telephone communications with the defendant, our review of that decision confirms that the ‘officer’ status of the informing party was neither significant nor germane to our conclusion." Id. at 7-8. For these reasons, the Superior Court affirmed Appellant's judgment of sentence.
III. Petition for Allowance of Appeal
Appellant filed a petition for allowance of appeal in this Court, which we granted to consider the following question, as phrased by Appellant:
Whether the Superior Court misinterpreted Commonwealth v. Padilla , 885 A.2d 994 (Pa. Super. 2005), and, therefore, erred in concluding that constructive notice of the order or decree in question, so as to support a conviction for Indirect Criminal Contempt, can be provided to the defendant by a person who was neither a law enforcement officer tasked with enforcing the order nor designed by the court to provide such notice?
Commonwealth v. Stevenson , ––– Pa. ––––, 261 A.3d 378 (2021).
IV. Parties’ Arguments
Appellant argues to this Court that the Superior Court in Padilla concluded that the Commonwealth can meet the notice element of indirect criminal contempt by demonstrating that the defendant received verbal notice of the PFA order only from a member of law enforcement or a party delegated by the trial court to give notice, and, by implicit corollary, any other verbal notice is ineffective. Appellant takes the position that the facts in Padilla make this clear, as the informing party in that case was a police officer. Thus, Appellant contends, the Superior Court in Padilla correctly concluded that Padilla had notice of the entry of a PFA order when an officer informed him that such an order had been entered against him and that a violation of that order could lead to criminal charges.
Appellant insists that the alleged holding in Padilla is consistent with, and supported by, the plain language of the PFA Act. In this regard, Appellant relies primarily upon Subsections 6106(g) and 6109(a) of the PFA Act. Subsection 6106(g) states:
The petition and orders shall be served upon the defendant, and orders shall be served upon the police departments and sheriff with appropriate jurisdiction to enforce the orders. Orders shall be promptly served on the police and sheriff. Failure to serve shall not stay the effect of a valid order.
23 Pa.C.S. § 6106(g). While Subsection 6109(a) provides:
A copy of an order under this chapter shall be issued to the plaintiff, the defendant and the police department with appropriate jurisdiction to enforce the order or agreement in accordance with the provisions of this chapter or as ordered by the court or hearing officer.
Appellant highlights that these statutory subsections, as well as other provisions of the PFA Act, repeatedly require the involvement of local law enforcement personnel in the PFA process. In Appellant's view, because the Legislature mandated through these statutes that PFA orders must be issued to and served upon local law enforcement, the plain language of the PFA Act suggests that law enforcement, or someone designated by the trial court, must provide the subject of a PFA order with notice of said order before that person can be found guilty of indirect criminal contempt for violating the order. Appellant asserts that anything less renders a conviction for indirect criminal contempt unsupported by sufficient evidence.
Applying this rationale to the circumstances of his case, Appellant argues that the evidence of record is insufficient to establish that he received proper notice of the final PFA order before the incidents that occurred on September 12, 2019. Appellant emphasizes that the record is devoid of any evidence that the final PFA order was issued to local law enforcement or that local law enforcement or a court-designated party spoke to him regarding the entry and consequences of the final PFA order. Instead, Appellant observes, the only evidence that the Commonwealth offered regarding his notice of the final PFA order was Sutton's testimony, which, he contends, did not demonstrate that she was a member of law enforcement or designated by the trial court to provide him with notice of the entry of the final PFA order. In any event, Appellant maintains that the record clearly establishes that Sutton made no specific mention of the PFA order and that she did not clarify the repercussions of violating the order. Thus, Appellant submits that this Court should reverse his sentence and conviction for indirect criminal contempt.
In response, the Commonwealth maintains that Appellant has failed to meet his burden of persuading this Court that the Superior Court erred by affirming his judgment of sentence. Contrary to Appellant's primary argument, the Commonwealth contends that the Superior Court's decision in this case is consistent with its opinion in Padilla , supra . According to the Commonwealth, the Superior Court in Padilla held that, despite the fact that Padilla had not been served with the PFA order that he was charged with violating, the Commonwealth proved that he had sufficient verbal notice of the order. The Commonwealth insists that the fact that an officer provided the verbal notice to Padilla simply has nothing to do with the Padilla court's ultimate holding.
Applying Padilla , the Commonwealth argues, the Superior Court in the instant matter correctly found that the Commonwealth established that Sutton provided Appellant with adequate verbal notice of the PFA order. The Commonwealth reminds this Court that, immediately after Sutton stated that Appellant could not be in Yates’ home, he told Sutton that he was leaving and asked that she not call the police. Thus, the Commonwealth contends, Appellant clearly knew that he could not be in the home and that he could be arrested for doing so. Accordingly, the Commonwealth submits that, because Appellant knowingly violated the PFA order, the Superior Court properly affirmed Appellant's judgment of sentence.
The Commonwealth dedicates the remainder of its brief to demonstrating the validity of the Superior Court's holding that a member of law enforcement or a court-designated person need not provide the notice of the final PFA order to a defendant to support a conviction for indirect criminal contempt. The Commonwealth argues that the Superior Court correctly concluded that: (1) Pennsylvania law makes clear that the Commonwealth may establish the notice element of indirect criminal contempt with evidence showing that the defendant received actual notice or possessed equivalent knowledge of a PFA order; (2) verbal communications can adequately convey notice that a PFA order has been entered against the defendant and that a violation of that order places the defendant at risk of criminal sanctions; (3) its decision was consistent with this Court's precedent, such as Staton , supra ; and (4) the PFA Act provides no support for Appellant's claim that notice of the existence a PFA order and the potential legal consequences of violating it must be transmitted by a law enforcement officer or a court-designated person. For these reasons, the Commonwealth advocates that we affirm the Superior Court's judgment, which affirmed Appellant's judgement of sentence.
V. Discussion
The object of the PFA Act is self-evident – to protect PFA plaintiffs from abuse. A plaintiff commences proceedings under the PFA Act by filing a petition in a trial court alleging abuse by the named defendant. 23 Pa.C.S. § 6106(a). If, as occurred here, a plaintiff seeks a temporary PFA order, then the court conducts ex parte proceedings and may enter an order protecting the plaintiff from immediate and present danger of abuse. Id. at § 6107(a) and (b). In any event, a court shall hold a hearing within 10 days of the filing of the initial PFA petition, where the plaintiff must prove the allegations of abuse by a preponderance of the evidence. Id. at § 6107(a). The defendant must be provided with notice of this 10-day (final PFA) hearing and advised of his rights to, inter alia : (1) be represented by counsel; (2) present evidence; and (3) compel attendance of witnesses. Id. at § 6107(a).
To the extent that we must interpret the PFA Act in this appeal, that task is guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501 -1991. Pursuant to the Statutory Construction Act, the object of all statutory construction is to ascertain and effectuate the General Assembly's intention. 1 Pa.C.S. § 1921(a). When the words of a statute are clear and free from ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b).
We further observe that Appellant has framed his claim as a challenge to the sufficiency of the evidence. Faced with such a challenge, an appellate court should determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as a verdict winner, was sufficient to allow the fact finder to conclude that the Commonwealth established the challenged criminal element of the offense beyond a reasonable doubt. Commonwealth v. Yandamuri , 639 Pa. 100, 159 A.3d 503, 514 (2017). "It is well-established that the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence and the [fact-finder], while passing upon the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence." Id.
After the court holds such a hearing, it may issue an order directing the defendant to refrain from abusing the plaintiff. Id. at § 6108(a)(1). In addition, the order may, inter alia , grant "possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting the defendant[.]" Id. at 6108(a)(2). Important to the instant matter, the PFA Act explicitly provides that a final PFA order must inform the defendant that a violation of the order will lead to the defendant's arrest and possible conviction for indirect criminal contempt. Id. at § 6108(g).
The service provisions of the PFA Act also are significant to this appeal. In this regard, the Act states, in pertinent part, that a "copy of an order under this chapter shall be issued to the plaintiff, the defendant and the police department with appropriate jurisdiction to enforce the order or agreement in accordance with the provisions of this chapter or as ordered by the court or hearing officer."Id. at § 6109(a); id. at § 6106(g). Notably, however, "[f]ailure to serve shall not stay the effect of a valid order." Id. at § 6106(g).
Turning to the law of contempt, we note that, generally speaking, "[c]ontempt of court is the obstruction of the court's orderly process." Crozer-Chester Med. Ctr. v. Moran , 522 Pa. 124, 560 A.2d 133, 136 (1989). There are two types of criminal contempt: direct and indirect. Id. "Direct contempt is obstruction by conduct, word or deed in the presence of the court and is a summary offense." Id. "It is summary because its proofs are evident; the authority and orderly process of the court are directly confronted upon its open record and the evidence is plain and usually self-accusing." Id.
A finding of contempt of court also can be civil in nature, but that process is irrelevant to the instant appeal.
Indirect contempt is committed by obstructive conduct that occurs outside of the court's presence. Id. Thus, unlike direct contempt, the problematic conduct is not self-evident or self-accusatory. Id. As such, indirect contempt cannot be punished summarily. Rather, "[w]hen one is charged with indirect contempt[,] those charging such contempt are put to the usual proofs required to convict for any charge, including the right to trial by jury. This is so, because the court has no direct, immediate proof of something beyond its immediate view." Id.
Along these lines and relevant to this appeal, because a PFA order can forbid otherwise legal activity, fundamental fairness dictates that the subject of a PFA order has an interest in knowing of the existence of the order before he is punished criminally for violating it. Thus, this Court has recognized the standard that, to prove a defendant guilty of indirect criminal contempt, the Commonwealth must establish beyond a reasonable doubt, inter alia , that the defendant had notice of the order that he allegedly violated. Commonwealth v. Baker , 564 Pa. 192, 766 A.2d 328, 331 (2001). The very narrow issue presented in this appeal concerns whether the Commonwealth must prove that this notice was provided to the defendant by a member of law enforcement or a person appointed by the court to convict the defendant of indirect criminal contempt due to a violation of the order in question.
In answering this question, we first reject Appellant's argument that the PFA Act supports his position that this notice must be provided to a defendant specifically by a member of law enforcement or a person appointed by the trial court to provide such notice. To be sure, the PFA Act involves law enforcement in the PFA process; for example, it mandates that local law enforcement, along with the defendant, be served with the PFA order. See , e.g. , 23 Pa.C.S. § 6106(g) (stating that the PFA "petition and orders shall be served upon the defendant, and orders shall be served upon the police departments and sheriff with appropriate jurisdiction to enforce the orders"). However, the PFA Act simply makes no mention of who must provide notice to a defendant. Accordingly, the PFA Act does not assist in defining the notice element that must be established by the Commonwealth to convict a defendant of indirect criminal contempt.
We also agree with the Superior Court that Appellant misinterprets the intermediate court's decision in Padilla . Indeed, we concur with the Superior Court's assessment where it stated, "Although the Commonwealth established the notice requirement in Padilla through an officer's telephone communications with the defendant, our review of that decision confirms that the ‘officer’ status of the informing party was neither significant nor germane to our conclusion." Memorandum at 7-8.
Turning now to this Court's precedent, as observed supra , in Stallworth and Staton , we held that, for purposes of the aggravating circumstance found at 42 Pa.C.S. § 9711(d)(18) (specifying that an aggravating circumstance for the death penalty exists where the defendant killed the victim at a time that the defendant was subject to a protective order involving the victim), the Commonwealth can prove that a defendant convicted of first-degree murder was subject to a protective order, such as a PFA order, if it can demonstrate that, at the time of the killing, the defendant had actual notice or equivalent knowledge of the PFA order. See Staton , 38 A.3d at 793-95 (discussing Stallworth and this proposition of law). Notably, our decisions contain no language suggesting that the Commonwealth must prove that notice of the PFA order was provided to the defendant by a member of law enforcement or person appointed by the trial court.
Having examined the statutory provisions and case law Appellant provided in support of his position, we have found no indication that the law requires what Appellant claims. Rather, the law clearly spells out that, to be convicted of indirect criminal contempt for violating a PFA order, a defendant must simply have notice of the order, regardless of whether that notice is obtained: (1) by service of the PFA order; (2) verbally from anyone; or (3) by other scenarios that can establish that the defendant had knowledge of the order. We find that this standard, when applied to the Commonwealth's burden of proving the notice element of indirect criminal contempt, appropriately balances the defendant's interest in knowing of the existence of the PFA order with the PFA Act's objective of protecting PFA plaintiffs from abuse.
In addition, this standard is consistent with the manner in which the law generally imputes notice on individuals. By way of example, Black's Law Dictionary provides, "A person has notice of a fact or condition if that person (1) has actual knowledge of it; (2) has received information about it; (3) has reason to know about it; (4) knows about a related fact; or (5) is considered as having been able to ascertain it by checking an official filing or recording." NOTICE, BLACK'S LAW DICTIONARY (11th ed. 2019). Consequently, this well-balanced proposition of law guides us to hold that, to convict a defendant of indirect criminal contempt for violating a PFA order, the Commonwealth must demonstrate beyond a reasonable doubt that, at the time of the violation, the defendant had actual knowledge of the PFA order, regardless of how the defendant gained this knowledge.
Applying this holding to the circumstances of this case, we find that the Commonwealth presented sufficient direct and circumstantial evidence that Appellant knew of the PFA order when he violated it. As noted supra , it is undisputed that Appellant received the temporary PFA order and was informed that a hearing would be held to finalize the order on September 9, 2019. Yet, Appellant absented himself from that hearing.
To be clear, we are not holding that a defendant's knowledge of a temporary PFA order equates to the defendant knowing of a final PFA order.
Three days following that hearing, Appellant appeared at and surreptitiously entered Yates’ home in the early morning hours, when residents normally would be sleeping, and redirected Yates’ home's cameras upward, suggesting that he did not want them to capture his image. Upon discovering Appellant in Yates’ basement at 3:30 a.m., Sutton informed Appellant, "You can't be here." N.T., 10/25/2019, at 15. Appellant's immediate response was telling: he told Sutton that he was leaving and expressly asked her not to call the police. This statement caused Sutton to exclaim, "You cannot be here. You have a two-year violation. You cannot be here." Id. at 16. Indeed, according to her later testimony, which the trial court found credible, Sutton informed Appellant at this time that there was a PFA order in effect. Id. at 17.
Notwithstanding all of these circumstances, Appellant reappeared at Yates’ home with the family dog later that morning. When Sutton again informed Appellant that he could not be there, he merely responded that he did not care.
Considering this evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth as the verdict winner, we find that it sufficiently demonstrates that Appellant knew of the PFA order when he entered Yates’ home in the middle of the night on September 12, 2019, and engaged in the discussion with Sutton. Appellant thereafter violated the PFA order by subsequently reappearing at Yates’ home mid-morning on the same day. Appellant's conduct and words on that morning, combined with the circumstances leading up to the incidents, clearly establish that he had sufficient knowledge of the PFA order to sustain a conviction of indirect criminal contempt for violating the order. Given this conclusion, we affirm the judgment of the Superior Court.
Justices Todd, Dougherty, Mundy and Brobson join the opinion.
Justice Mundy files a concurring opinion in which Justice Brobson joins.
Justice Wecht files a dissenting opinion in which Justice Donohue joins.
JUSTICE MUNDY, concurring
I join the Majority Opinion in full holding that the notice requirement can be met by verbal notice and is not required to be provided by a member of law enforcement or a person designated by the court. As the Majority notes, "the law clearly spells out that, to be convicted of indirect criminal contempt for violating a PFA order, a defendant must simply have notice of the order, regardless of whether that notice is obtained: (1) by service of the PFA order; (2) verbally from anyone; or (3) by other scenarios that can establish that the defendant had knowledge of the order." Maj. Op. at 206.
In a footnote, the Majority states "[t]o be clear, we are not holding that a defendant's knowledge of a temporary PFA order equates to the defendant knowing of a final PFA order." Maj. Op. at 207 n.5. However, Appellant was provided notice of the September 9, 2019 final PFA hearing. Appellant failed to appear at the hearing, resulting in the PFA petition being uncontested. Appellant now purports to assert his ignorance of the outcome of that hearing should allow for noncompliance with the PFA that was entered and given full effect when "[f]ailure to serve shall not stay the effect of a valid order." Id. at 205 (citing 23 Pa.C.S. § 6106(g) ). This, at a minimum, gave Appellant inquiry notice that the final PFA order had been issued. While I would not rule out that such notice was alone sufficient to constitute "equivalent knowledge" under Commonwealth v. Stallworth , 566 Pa. 349, 781 A.2d 110, 124 (2001), we need not decide that question in the present dispute.
Justice Brobson joins this concurring opinion.
JUSTICE WECHT, dissenting
On September 9, 2019, Ashley Yates obtained a protection from abuse ("PFA") order against Viktor Stevenson. The order barred Stevenson from Yates’ residence, but, for reasons unknown, no one served the order on Stevenson. Nor did the Commonwealth attempt to apprise Stevenson in any way of the order or its contents. In the early morning of September 12, 2019, Stevenson entered Yates’ home surreptitiously, where he encountered Yates’ cousin, Danielle Sutton. Sutton told Stevenson: "You cannot be here. You have a two-year violation." Stevenson left, but returned later that morning with Yates’ dog.
Notes of Testimony (N.T.), 10/25/2019, at 16.
The Commonwealth charged Stevenson with indirect criminal contempt ("ICC") for violating the PFA order. An essential element of ICC is prior notice to the contemnor of the order that he is alleged to have violated. There being no evidence that anyone served or attempted to serve Stevenson with the order, or that the Commonwealth otherwise provided him notice of the order, the Commonwealth sought to establish notice through circumstantial evidence, including Sutton's statements to Stevenson. The Majority accepts that evidence and affirms Stevenson's conviction.
Commonwealth v. Baker , 564 Pa. 192, 766 A.2d 328, 331 (2001) (providing that "[t]he contemnor must have had notice of the specific order or decree.").
I am skeptical that the Commonwealth can establish notice circumstantially from a conglomeration of anecdotal evidence suggesting that the contemnor should have known better than to engage in the prohibited conduct. The notice required for an ICC conviction ensures that the state does not deprive a person of his or her liberty without first providing advance warning of the prohibition. It is the government's obligation to provide that notice. The Commonwealth cannot simply stumble by happenstance into compliance with due process. Here, the Commonwealth provided no evidence whatsoever that any state official—or anyone otherwise designated by statute, by rule, or by court order—effectuated service of the order or even attempted to inform Stevenson of the issuance of the order or of the conduct it prohibited. Under such circumstances, I do not believe that the Commonwealth established the notice element necessary to sustain a conviction for ICC. Accordingly, I respectfully dissent.
The Fourteenth Amendment provides, in relevant part: "No state shall ... deprive any person of life, liberty, or property, without due process of law. ..." Due process of law guarantees "appropriate procedural safeguards" prior to any deprivation of a constitutionally protected interest. One such safeguard is notice. As a matter of due process, the government must take steps reasonably calculated to provide notice, even in the absence of actual notice. The steps that the government takes to provide notice must be reasonable and adequate for the purpose, with due regard for the nature of the proceedings and the character of the rights that may be affected. The Supreme Court of the United States has deemed notice to be constitutionally sufficient when it "was reasonably calculated to reach the intended recipient."
U.S. Const . amend. XIV, § 1.
Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (cleaned up).
Mathews v. Eldridge , 424 U.S. 319, 349, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ("The essence of due process is the requirement that a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.") (cleaned up).
Dusenbery v. United States , 534 U.S. 161, 170, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) ("[T]he Due Process Clause does not require such heroic efforts by the Government; it requires only that the Government's effort be ‘reasonably calculated’ to apprise a party ....") (cleaned up).
See Jones v. Flowers , 547 U.S. 220, 226-27, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006).
Id. at 226, 126 S.Ct. 1708.
A conviction for ICC rests upon the violation of a court order that occurs outside the presence of the court. In a PFA case, ICC punishes the offender for violating the protective order. Because ICC is a crime, it is subject to all of the procedural safeguards afforded to criminal defendants. In particular, a contemnor facing a charge of ICC is entitled to prior notice of the order that the contemnor is alleged to have violated. As we have explained, a conviction for ICC rests upon the Commonwealth proving four elements:
See Knaus v. Knaus , 387 Pa. 370, 127 A.2d 669, 671 (1956) (defining and distinguishing direct and indirect criminal contempt).
See 23 Pa.C.S. § 6114(a) ("Where the police, sheriff or the plaintiff have filed charges of indirect criminal contempt against a defendant for violation of a protection order ... or a court-approved consent agreement, the court may hold the defendant in indirect criminal contempt and punish the defendant in accordance with law.").
See Crozer-Chester Med. Ctr. v. Moran , 522 Pa. 124, 560 A.2d 133, 137 (1989) ; In re Martorano , 464 Pa. 66, 346 A.2d 22, 29 (1975) ("Quite simply, a contemnor who will be sentenced to a determinate term of imprisonment or a fixed fine, which he is powerless to escape by purging himself of his contempt, is entitled to the essential procedural safeguards that attend criminal proceedings generally."); Bruzzi v. Bruzzi , 332 Pa.Super. 346, 481 A.2d 648, 651 (1984) "(A civil label is inappropriate when the court is attempting to punish the contemnor (continued...) for past acts of misbehavior rather than setting forth the conditions of compliance to which the contemnor was required to conform and conditioning punitive measures on failure to comply therewith.").
(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 prohibited conduct; (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.
Baker , 766 A.2d at 331 (cleaned up); see also Commonwealth v. Garrison , 478 Pa. 356, 386 A.2d 971, 977-78 (1978) ; Diamond v. Diamond , 715 A.2d 1190, 1196 (Pa. Super. 1998).
Notice is a judicially created element of ICC that is constitutionally necessary to protect a defendant's due process rights and to afford the defendant the opportunity to conform his or her conduct to the court's order. A conviction is valid only if the contemnor had prior notice of the specific order or decree that the contemnor is alleged to have violated. Where there is no prior notice, the conviction cannot stand.
See Commonwealth v. Owens , 496 Pa. 16, 436 A.2d 129, 134 (1981) (finding no due process violation where, "prior to summarily citing and punishing appellant for contempt, the court gave appellant sufficient notice that his conduct was contemptuous and sufficient opportunity to desist.").
Matter of Mandell , 489 Pa. 522, 414 A.2d 1013, 1015 (1980) ("the mere showing of noncompliance with a court order or misconduct impeding the administration of justice is never sufficient, alone, to prove contempt."); Commonwealth v. Washington , 470 Pa. 199, 368 A.2d 263 (1977) (reversing a contempt conviction where the defendant received no notice of the court order); Commonwealth v. Gaston , 460 Pa. 385, 333 A.2d 779, 781 (1975) (plurality opinion) (reversing a conviction for direct criminal contempt where it was not established that the appellant had actual knowledge that his conduct was at variance with his responsibilities to the court); East Caln Twp. v. Carter , 440 Pa. 607, 269 A.2d 703, 707 (1970) ("This Court has previously held that before a defendant may be cited for contempt of an Order of Court it must be shown that he had actual knowledge of the Order."); Ricci v. Geary , 447 Pa.Super. 609, 670 A.2d 190, 193 (1996) (holding in the context of direct criminal contempt that the notice requirement of due process would require prior notice by the court of the prohibited conduct); accord , In re Rubin , 378 F.2d 104, 108 (3d Cir. 1967) (holding that there was no contempt where the alleged contemnor had no knowledge of the order he was said to have violated).
The corollary of the notice element is the requirement that the order is definite, clear, and specific, and that it leaves no doubt or uncertainty in the mind of the person to whom it is addressed as to what is prohibited. It is axiomatic that one may not be held in contempt of court for contumacious conduct without being forewarned by the court that such conduct is prohibited. In the context of PFA orders, a clear court order communicates the parameters of prohibited conduct and avoids any uncertainty for either the petitioner or the defendant as to what conduct will not be countenanced.
Baker , 766 A.2d at 331.
The redundancy of adjectives used—definite, clear, specific, and leaves no doubt or uncertainty—to describe the clarity of orders required to sustain a conviction for ICC ensures that, if the government is going to bar certain conduct and later punish that conduct by criminal sanction, it may not do so with language so vague or uncertain that it fails to afford fair notice to the contemnor of what conduct is prohibited. The clarity required of a court order is consistent generally with the government's obligation to avoid uncertainty and vagueness when proscribing conduct, and it demands that the contemnor receive prior notice "of the specific order or decree" in order to sustain an ICC conviction. It is futile to insist upon the clarity of a court order to avoid doubt and uncertainty in the mind of the contemnor if we do not likewise insist that the contemnor have notice of the order and its definite, clear, and specific terms.
See, e.g. , Pasadena City Bd. of Ed. v. Spangler , 427 U.S. 424, 439, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976) ("Because of the rightly serious view courts have traditionally taken of violations of injunctive orders, and because of the severity of punishment which may be imposed for such violation, such orders must in compliance with [Federal Rule of Civil Procedure 65 ] be specific and reasonably detailed."); Int'l Longshoremen's Ass'n v. Philadelphia Marine Trade Ass'n , 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967) ("The most fundamental postulates of our legal order forbid the imposition of a penalty for disobeying a command that defies comprehension."); Commonwealth v. Garrison , 478 Pa. 356, 386 A.2d 971, 980 n.6 (1978) (holding that there was no contempt where the defendant's conduct was not clearly and specifically prohibited by the court's ruling); see also United States v. Dowell , 257 F.3d 694, 699 (7th Cir. 2001) ("To be held in civil contempt, [the defendant] must have violated an order that sets forth in specific detail an unequivocal command from the court."); United States v. Int'l Bhd. of Teamsters , 899 F.2d 143, 146 (2d Cir. 1990) ("An unclear order provides insufficient (continued...) notice to justify a sanction as harsh as contempt."); Ford v. Kammerer , 450 F.2d 279 (3d Cir. 1971) (reversing a contempt conviction where the court order contained "no prohibitory language explicitly addressed" to the appellant's act); In re Rubin , 378 F.2d 104 (3d Cir. 1967) (reversing a contempt conviction where a question existed regarding whether the appellant's conduct fell within the conduct prohibited by the court's order). People v. McCowan , 85 N.Y.2d 985, 629 N.Y.S.2d 163, 652 N.E.2d 909, 910 (1995) (dismissing charges against the defendant for violating an order of protection because the substance of the order was not conveyed: "It is not enough ... [for the court] simply to inform a defendant that ‘an order’ has been issued, without also telling defendant, either orally or in writing, the contents of the order and the conduct it prohibits").
See Raley v. Ohio , 360 U.S. 423, 438, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959) ("A State may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them.").
Baker , 766 A.2d at 331.
The Due Process Clause places upon the state the burden of providing notice. Before the state can act to take away one's life, liberty, or property, it must notify the person of the prohibited conduct. It is the burden of the state to ensure service, either directly or by designating someone to provide service, or by taking other affirmative steps reasonably calculated to provide notice. The Commonwealth may—by order, statute, or rule—designate someone to effectuate service and must make good faith attempts at service. In the absence of personal service, evidence that a representative of the government provided the contemnor with actual knowledge of the specific order and its contents should be a prerequisite to any adjudication holding the contemnor punitively liable for disobeying the order. Fortuitous encounters with third parties are no substitute for notice provided by the government.
Cf. United States v. James Daniel Good Real Prop. , 510 U.S. 43, 48, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) ; Commonwealth, Dep't of Transp. v. McCafferty , 563 Pa. 146, 758 A.2d 1155, 1163 (2000) ; In re Upset Sale, Tax Claim Bureau of Berks County , 505 Pa. 327, 479 A.2d 940, 946 (1984).
See, e.g. , Commonwealth v. Padilla , 885 A.2d 994, 998 (Pa. Super. 2005) (holding that verbal notice by a police officer over the telephone of the PFA order, what it precluded, and the consequences for violating the order, provided adequate notice of the order to sustain a conviction for ICC).
That constitutionally adequate notice is the government's responsibility is not an unfamiliar concept. For example, a conviction for driving while one's operating privilege is suspended under 75 Pa.C.S. § 1543 depends, inter alia , upon whether the Commonwealth provided actual notice of the agency's decision to suspend operating privileges. In the context of property that is sold via tax sale, this Court has held "that tax sales are proceedings which may deprive creditors of property rights, and hence, notice ... must measure up to the standards of due process." In particular, due process notice "is information which the County is constitutionally obliged to give" to interested creditors. Before the Department of Corrections may deduct fines from an inmate's bank account, the Department itself is required to provide notice that comports with due process. Before the federal government places an individual on the federal No-Fly list, "due process requires [the Attorney General] to provide Plaintiffs ... with notice regarding their status on the No-Fly list and the reasons for placement on that List." The government cannot simply sit back and hope that airlines provide notice.
See Commonwealth v. Zimmick , 539 Pa. 548, 653 A.2d 1217, 1221 (1995) (finding actual notice where, inter alia , the court informed the defendant at the guilty plea hearing that his license would be suspended); Commonwealth v. Kane , 460 Pa. 582, 333 A.2d 925, 927 (1975) (holding that proof that the notice of suspension was mailed is not sufficient by itself to establish notice).
In re Upset Sale , 479 A.2d at 946.
Id.
See Bundy v. Wetzel , 646 Pa. 248, 184 A.3d 551, 558-59 (2018) ; Montanez v. Sec'y, Pennsylvania Dep't of Corr. , 773 F.3d 472, 486 (3d Cir. 2014).
Latif v. Holder , 28 F. Supp. 3d 1134, 1162 (D. Or. 2014).
The PFA Act does not assign responsibility for service of process to anyone in particular. Section 6106(e), which governs the commencement of PFA proceedings, provides that "[t]he court shall adopt a means of prompt and effective service in those instances where the plaintiff avers that service cannot be safely effected by an adult individual other than a law enforcement officer or where the court so orders." Further, "[i]f the court so orders, the sheriff or designated agency or individual shall serve the petition and order." The PFA Act mandates that PFA orders entered pursuant to Section 6106 be served upon defendants, police departments with jurisdiction, and the sheriff, and further requires that "[n]otice be given to the defendant, in orders issued under this section, stating that violations of an order will subject the defendant to arrest under Section 6113 ... or contempt of court under section 6114."
Id. § 6106(f)
Id. § 6106(g).
Id. § 6108(g). Section 6113 permits private criminal complaints for violations of a PFA order, Section 6114 permits a violation to be punishable as indirect contempt of court, and Section 6114.1 permits a plaintiff to file a petition for civil contempt for such violations.
Following the enactment of the PFA Act, this Court promulgated new rules within our Rules of Civil Procedure in order to implement the Act. Pa.R.C.P 1901.4 directs that "service of the [PFA] petition and temporary order shall be in accordance with Rule 1930.4" and requires an affidavit of service in accord with Rule 1905(d). In turn, Pa.R.C.P 1930.4 pertains generally to service of process in domestic relations matters and requires personal service by the sheriff or any competent adult. For service of the PFA petition and temporary order, Pa.R.C.P 1901.4 requires an affidavit of service in a form established by Rule 1905(d). In accord with Section 6108(g) of the PFA Act, Pa.R.C.P 1901.7 requires the final PFA order to be on a form that provides notice to the defendant that "failure to obey this order" may result in arrest and "a charge of indirect criminal contempt as set forth in 23 Pa.C.S. § 6114."
Examination of the PFA Act and the Rules makes two things apparent. First, the PFA Act does not designate anyone in particular to effectuate service. Where the defendant attends the final PFA hearing, the defendant would, presumably, receive the court's order at the conclusion of the proceeding. Where a defendant chooses not to attend the final PFA hearing, neither Section 6106(g) nor 6109(a) identifies who is tasked with providing service. In each instance, the statute is phrased in the passive voice, leaving the actor indeterminate. Second, our Rules do not fill this gap. Although Rule 1930.4, via Rule 1901.4, directs that service of the PFA petition and temporary PFA can be made by the sheriff or any competent adult, neither rule addresses the service of final PFA orders.
In the case at bar, the trial court issued a temporary PFA order on August 23, 2019. Stevenson received the PFA petition, participated at the temporary PFA hearing, and received the temporary PFA order. On September 9, 2019, without Stevenson's participation, the trial court issued the final PFA order. Among other things, the final PFA order barred Stevenson from Yates’ home. When the trial court entered its final PFA order, that order superseded the temporary PFA order. The final PFA order in this case did not designate anyone in particular to effectuate service. Nor do we know what efforts were made by the Commonwealth, if any, to complete service of the final PFA order, nor why Stevenson was not served. The Commonwealth made no argument and produced no evidence regarding who was responsible for service, nor any evidence to suggest that Stevenson attempted to evade service.
See Pa.R.C.P. 1905 (providing that final PFA orders supersede any prior PFA orders between the same parties).
Although we do not know who was responsible for serving the final PFA order, counsel for Stevenson suggested at the contempt hearing that this responsibility belonged to the government. N.T., 10/25/2019, at 25 ("All the government had to do, Your Honor, was to make sure to actually go serve.").
Three days later, Sutton confronted Stevenson in the basement of Yates’ residence, and told Stevenson: "You can't be here." When Stevenson asked Sutton not to call the police, Sutton responded: "You cannot be here. You have a two-year violation. You cannot be here." Sutton later responded in the affirmative when asked whether she told Stevenson "that there was a PFA in effect." The Majority and the trial court rely upon this statement as indicating that Sutton informed Stevenson that there was a final PFA order in effect. It is apparent from the record, however, that Sutton did not mention the final PFA order to Stevenson, did not relay the prohibited conduct identified in the order, and did not explain the consequences should Stevenson violate the order. More importantly, Sutton was not acting as an agent of the government and, therefore, could not provide the notice that due process demands. Despite Sutton's proclamations, it is indisputable that the Commonwealth made no effort to afford Stevenson notice of the final PFA order. There is no evidence on the record that anyone attempted to serve Stevenson or that the Commonwealth undertook any steps reasonably calculated to provide notice.
Id. at 15.
Id. at 16.
Id. at 17.
See Maj. Op. at ––––.
The Majority relies upon several pieces of circumstantial evidence that it believes collectively establish the equivalent of actual notice, none of which, in my opinion, suffice. Neither service of the PFA petition nor notice of the temporary PFA order on August 23, 2019, is, or can be, notice of the final order. The temporary PFA order no longer was in effect when Stevenson entered Yates’ home, having either expired or been superseded by the final PFA order. A conviction of ICC requires "notice of the specific order or decree," not notice of a prior or superseded order.
See Maj. Op. at ––––.
See Baker , 766 A.2d at 331.
Nor does notice of the final PFA hearing date or the possibility, potentiality, or even likelihood, of an adverse order in the defendant's absence establish notice of the final PFA order. Even if the defendant chooses not to participate in a final PFA hearing, a final PFA order is not certain to result. The plaintiff may not appear, or may not establish the abuse by a preponderance of the evidence. Although Stevenson ran the risk that an adverse ruling would ensue in his absence, this risk is not the same as knowledge of an adverse order for purposes of an ICC conviction. Finally, circumstantial evidence that Stevenson knew that he should not be entering Yates’ house in the middle of the night does not establish notice by the government of the final PFA order. All of these facts are irrelevant to determining whether Stevens had notice of the final PFA order that he was charged with violating.
See 23 Pa.C.S. § 6107(a).
Because the Commonwealth took no steps reasonably calculated to afford notice to Stevenson, this case is distinguishable from Commonwealth v. Padilla , upon which the lower courts relied. There, the victim had obtained an emergency PFA order against Padilla. Three days later, Padilla began threatening the victim by telephone and attempting to enter her apartment. The victim contacted the police. A police officer left Padilla a voice message advising him that the victim had obtained a PFA order and that Padilla was to have no contact with her. When Padilla returned the call, the police officer informed Padilla of the consequences for violating the order. After Padilla continued to harass the victim, he was arrested and charged with ICC. Examining the notice element of ICC on appeal, the Superior Court held that the telephone exchange between Padilla and the police officer constituted actual notice of the PFA order. Padilla included both notice of the PFA order and notice of the consequences for violating it, both of which were provided by an agent of the state that later sought to deprive the contemnor of his liberty. That notice is what due process demands. By contrast, the Commonwealth here made no effort to provide notice to Stevenson.
Because the Commonwealth relied upon Sutton's statements to Stevenson as providing the requisite notice, nothing Stevenson did before being confronted by Sutton in the basement could constitute a violation of the PFA order, even under the Majority's analysis. Stevenson immediately departed after the encounter with Sutton. It is only Stevenson's subsequent return to Yates’ residence later that morning that could serve as the basis for the ICC conviction under the Majority's approach.
In Commonwealth v. Stallworth , 566 Pa. 349, 781 A.2d 110, 124 (2001), a capital case, the prosecutor sought to establish the aggravating circumstance that, at the time of the killing, "the defendant was subject to a court order restricting in any way" his contact with the victim. On appeal, this Court was called upon to determine whether the phrase "subject to" in 42 Pa.C.S. § 9711(d)(18) required proof that the defendant had actual knowledge of the PFA order in order for the aggravating circumstance to apply. The Court ultimately held that the aggravating circumstance applies only where the Commonwealth proves that the defendant had "actual notice" or "the equivalent knowledge of a PFA order so as to be ‘subject to’ such an order." Because the defendant had no knowledge of the order, he was not "subject to" the order for purposes of the aggravating circumstance of Section 9711(d)(18).
Stallworth , 781 A.2d at 124.
The Court had the opportunity to apply this standard several years later in Commonwealth v. Staton , 614 Pa. 487, 38 A.3d 785, 795 (2012), where the defendant had not been served with the temporary or final PFA order. Instead, the Commonwealth relied upon, inter alia , evidence that the defendant admitted that he had "deliberately avoided the authorities, who were attempting to serve him with the order." The Court relied upon this fact and several others to uphold the jury's finding of "equivalent knowledge of the PFA order" and the jury's rejection of the defendant's claim of ignorance.
Staton , 38 A.3d at 794-95.
Id.
Under Stallworth and Staton, notice of a PFA can be achieved even in the absence of service of the PFA order if the Commonwealth establishes that it made an attempt reasonably calculated to provide notice. Under such circumstances, "actual notice" or "equivalent knowledge of the PFA order" will suffice. Whether actual notice or its equivalent, the duty to provide such notice falls upon the government. In Stallworth , there was no evidence that the Commonwealth attempted to provide notice to the defendant, and, therefore, no basis for the Subsection (d)(18) aggravating circumstance. In Staton , the Court found the equivalent of actual notice where the defendant successfully evaded service by hiding from the Sheriff. I do not deny that the Commonwealth is entitled to rely upon the good faith efforts of its agents in making service. In contrast to Staton , there were no such efforts in this case. The Commonwealth cannot meet its burden by hoping that a private citizen eventually warns, truthfully or not, the defendant of the existence of a PFA order.
Stallworth , 781 A.2d at 124.
I am mindful of the policy considerations that drive the Majority's affirmance of Stevenson's conviction. But we cannot elevate those considerations above due process. There is no doubt that the Commonwealth's failure to attempt or to ensure that Stevenson was served with the final PFA order left Yates exposed to harm that she had taken steps to avoid. There also is no doubt that the current gap in the law likely may contribute to such failure.
See Maj. Op. at 204.
There are several ways to close this loophole. The General Assembly could amend the PFA Act to require law enforcement to effectuate service. In the absence of legislative action, this Court's Civil Procedural Rules Committee should examine whether we should amend our PFA rules to require service by law enforcement. Because the unequivocal purpose of the PFA Act is to protect victims from injury or death at the hands of abusers, it makes sense to require law enforcement to serve the defendant. Placing this obligation squarely upon law enforcement not only would comport with the Commonwealth's obligation under the Due Process Clause, but it also would remove any potential for the victim to be tasked with serving her own abuser. Further, requiring law enforcement to serve the defendant promptly will reduce the possibility that the defendant will remain unaware of the order and the restrictions with which he must comply. A PFA order does little to protect a victim if the offender remains ignorant of that order.
Some Pennsylvania counties already require law enforcement to provide service or to accompany the victim or other competent adult to provide service. For example, Allegheny County requires law enforcement to provide service of temporary PFA orders. Recognizing the danger of requiring the victim to arrange service, Allegheny County requires the victim to "immediately" deliver a copy of the PFA petition and temporary PFA order to local police, advises that the plaintiff "should never attempt to personally serve the defendant," acknowledges that service may be accomplished by any competent adult who is not a party, related to a party, or employed by a party, and states that "[i]t is best for service to be made by a law enforcement officer." I agree. Counties should require that service of PFA petitions, temporary orders, and final orders be performed by police officers or Sheriffs.
https://www.alleghenycourts.us/family/departments/protection-fromabuse/service-of-temporary-pfa-order/ (last viewed September 20, 2022).
In addition, to service by law enforcement, victims would be better served if temporary orders remained in effect until notice of the final order. Presently, under Section 6107(b)(2) of the PFA Act, when the court issues a temporary order, "the order shall remain in effect until modified or terminated by the court after notice and hearing." If the final PFA hearing is continued, the trial court "may make ex parte temporary orders ... as it deems necessary." The form required by Rule 1905 for final orders indicates that the final order supersedes any prior PFA orders between the parties. The question of whether the statutory language is flexible enough to permit courts to extend temporary PFA orders until notice of the final PFA order, or whether a legislative change would be necessary, is beyond the scope of this appeal. In this case, the temporary order was in effect only until the final PFA hearing, leaving Yates unprotected between the final PFA hearing and notice of the final PFA order.
Id. § 6107(c)(1).
Pa.R.C.P. 1905.
https://www.alleghenycourts.us/family/departments/protection-fromabuse/general-information/ (last viewed September 20, 2022) ("[t]he Temporary PFA Order will remain in effect until the Final PFA Hearing date").
Under the facts presented, the Majority holds that notice does not depend upon the identity of the informing party. For the Majority, it is of no moment whether the person informing the contemnor of the order is the judge, a law enforcement officer, or some third person who heard about the order from someone else. I would hold that due process prohibits the government from dispensing with notice by relying upon mere happenstance. Before the Commonwealth may deprive an individual of life, liberty, or property for violating a court order, it must take some affirmative steps reasonably calculated to provide that individual with notice of the order. The Commonwealth failed to do so here. I respectfully dissent.
Justice Donohue joins this dissenting opinion.