Com. v. Hesser, W.
435 MDA 2017
| Pa. Super. Ct. | Nov 8, 2017Background
- On January 12, 2017 a final PFA order prohibited Hesser from any contact with the complainant except limited text messages regarding visitation/custody of the parties’ child.
- On January 19, 2017 Hesser was charged with two counts of indirect criminal contempt (ICC) for allegedly violating the PFA by sending a text message to the complainant.
- At the January 26, 2017 ICC hearing the complainant testified she received a text from Hesser that asked her to withdraw the PFA and used vulgar, harassing language; she no longer had the text because she changed phones.
- Officer Lada testified he saw the complainant’s written statement and that the complainant showed him the text messages; he incorporated key contents into his police report.
- Hesser testified the message concerned the child’s wellbeing, was not intended to threaten or harass, and denied threatening language attributed to him.
- The trial court found the complainant and officer credible, concluded Hesser violated the PFA with wrongful intent, convicted him of ICC, and sentenced him to three months’ probation; Hesser appealed and counsel filed an Anders brief seeking withdrawal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Commonwealth proved beyond a reasonable doubt that Hesser intentionally violated the PFA (ICC elements: definite order, notice, volitional act, wrongful intent) | The Commonwealth argued the PFA was clear, Hesser had notice, he voluntarily sent a harassing text unrelated to custody, and his vulgar language and context show wrongful intent | Hesser argued the text was about the child’s welfare, not intended to harass or threaten, and thus lacked the requisite intent to violate the PFA | Court affirmed conviction: record supports findings on clarity, notice, volitional act, and wrongful intent; judge’s credibility determinations upheld |
Key Cases Cited
- Commonwealth v. Jackson, 10 A.3d 341 (Pa. Super. 2010) (outlines ICC elements for PFA violations)
- Commonwealth v. Brumbaugh, 932 A.2d 108 (Pa. Super. 2007) (wrongful intent may be inferred from substantial certainty of violation)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (Anders procedures and counsel’s obligations on withdrawal)
- Commonwealth v. Baker, 766 A.2d 328 (Pa. Super. 2001) (standard of review for contempt is abuse of discretion)
- Commonwealth v. Taylor, 137 A.3d 611 (Pa. Super. 2016) (texts with no legitimate custody purpose may show intent to harass)
- Commonwealth v. Haigh, 874 A.2d 1174 (Pa. Super. 2005) (courts may use common sense and context to assess intentional violation)
- Commonwealth v. Kolansky, 800 A.2d 937 (Pa. Super. 2002) (appellate deference to trial judge’s credibility findings)