COMMONWEALTH of Pennsylvania, Appellee, v. Gregory A. BAKER, Appellant.
Superior Court of Pennsylvania.
Dec. 23, 1998.
Argued Sept. 9, 1998.
722 A.2d 718
The majority thoughtfully states that:
[U]nder the authority of Seitz, not all spoken words between a husband and wife will enjoy the privilege under consideration here. It would seem that if the nature of the communication is not imbued with an aura of a sharing disclosure precipitated largely due to the closeness spouses share, then arguably it is not privileged. In this context it would seem logical that certain communications which, for all intents and purposes, victimize the spouse could not reasonably be expected to be kept a secret by the victimized spouse nor could they be deemed a sharing of ideas consistent with the intimacy of a marital relation. . . .
Addressing the various general categories of communications presented in this appeal we conclude that appellant‘s direct threats to injure or kill his wife do not have the aura of confidentiality which is the hallmark of the privilege. It is difficult to conclude that a threat to injure one‘s spouse is made consistently with the confidentiality, intimacy and secrecy that a marital relationship inspires. Indeed, a threat of such a serious magnitude is entirely repugnant tо the intimacy and confidentiality that a marital union is deemed to inspire. . . .
For similar reasons we conclude that the direct threats to injure or kill the wife‘s daughters or other family members lack the aura of confidentiality necessary to gain privileged status. In many cases the parental instinct is so strong that a parent will value the life of a child above their own. Thus, the threat to injure or kill a child should not be expected to be kept silent and it represents as great an affront to the reсipient spouse as to be on a par with threats against the spouse or the taunts found in Seitz. . . .
(Majority opinion at 711-712). Thus, under existing Pennsylvania law, a husband‘s direct threats to injure or kill his spouse or her children are not privileged, as such communications lack the aura of confidentiality necessary to gain privileged status. On the other hand, a husband‘s admission to his wife that he has already abused his wife‘s children is protected by the spousal privilege because such an admission is “a sharing disclosure madе due to the closeness of the marital relationship“? Pennsylvania law does not expect a mother to keep quiet about her husband‘s threats to injure or kill her children, but expects and requires her to be silent concerning her husband‘s admissions to sexual abuse that he has already inflicted upon her children. Such admissions are not only heinous, they also put the mother on notice that her children are at risk for further abuse. As the majority eloquently states “in many cases the parental instinct is sо strong that a parent will value the life of a child above [his or her] own.” In my opinion, no parent should be expected to remain silent concerning sexual abuse inflicted upon his or her children especially when the abuse is at the hands of a co-parent. Pennsylvania law, however, holds otherwise. Thus, I am bound to join the majority in granting Appellant a new trial.
Andrew J. Goncharoff, York, for appellant.
Susan R. Emmons, Asst. District Atty., York, for Com., appellee.
Before CAVANAUGH, DEL SOLE, JOHNSON, HUDOCK, EAKIN, STEVENS, MUSMANNO, ORIE MELVIN, and LALLY-GREEN, JJ.
This is a direct appeal from a judgment of sentence directing Aрpellant to serve a period of six months incarceration for his conviction of indirect criminal contempt. Appellant contends that there is insufficient evidence, under the particular facts of this case, to support his conviction. We vacate the judgment of sentence and reverse the conviction.
The charge against Appellant stemmed from the issuance of an order in response to a petition for protection from abuse filed by Appellant‘s ex-girlfriend. In accordance with the provisions of the Protection From Abuse Act, (PFA)
Two deputy sheriffs served a copy of the temporary order on Appellant, who was incarcerated in the York County Prison. The deputies testified they read and explained the order to Appellant and he complied with their request to sign the document. However, as Appellant was departing he remarked in the presence of the deputies, “I‘m going to kill this bitch.” The deputies did not convey this statement to the plaintiff, but did file indirect сriminal contempt charges against Appellant for violating the temporary PFA order. A hearing was held and Appellant was found guilty of indirect criminal contempt and sentenced to six months imprisonment.
The sole question raised on appeal is whether Appellant‘s statement made in the presence of the officers while in custody, but not conveyed to the plaintiff, constituted conduct in violation of the temporary order for which he could be found guilty of contempt.
We begin by recognizing the importance of the purposes of the Protection From Abuse Act. Hailed as a vanguard measure to deal with problems of abuse, the act was designed to advance the prevention of physical and sexual abuse. Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 490 A.2d 918 (Pa.Super.1985); Cipolla v. Cipolla 264 Pa.Super. 53, 398 A.2d 1053 (Pa.Super.1985). In an effort to prevent domestic violence it concomitantly promotes the security of the home. Commonwealth v. Majeed, 548 Pa. 48, 694 A.2d 336 (Pa.1997). Because every individual has a right to feel secure in their home and to be free of violence, our Commonwealth has seen fit to provide these measures for the protection of its citizens.
In view of these concerns, the court in this matter issued a temporary protection from abuse order against Appellant. Appellant was charged with contempt for violating the terms of that order. 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. Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (Pa.1968). Where a PFA order is involved, an indirect criminal contempt charge is designed to seek punishment for a violation of the protective order. Commonwealth v. Nelson, 456 Pa.Super. 349, 690 A.2d 728 (Pa.Super.1997). The “role of criminal contempt and that of many ordinary criminal laws seem identical—protection of the institutions of our government and enforcement of their mandates.” Diamond v. Diamond, 715 A.2d 1190, 1195 (Pa.Super.1998). Thus, as with those accused with other crimes, one charged with indirect criminal contempt is to be provided the safeguards which statute and criminal procedures afford. Crozer-Chester Med. Center v. Moran, 522 Pa. 124, 560 A.2d 133, 137 (Pa.1989).
In considering the sufficienсy of the evidence to support a finding of criminal contempt for failure to comply with a court order, four elements must be present:
- 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;
- the contemnor must have had notice of the specific order or decree,
- the act constituting the violation must have been volitional, and
- the contemnor must have acted with wrongful intent.
Diamond v. Diamond, 715 A.2d at 1196.
The temporary order issued in this case provided:
The Defendant shall refrain from abusing, harаssing, threatening and stalking the Plaintiff or placing her in fear of abuse in any place where she may be found.
The order also advises the defendant that any violation “of this order shall constitute contempt of court.” Thus, the question becomes whether Appellant‘s statement violated the terms of this order.
Appellant argues that his comment was not a threat, rather he was “doing nothing more than venting his frustration.” Appellant‘s Brief at 10. He notes that the Crimes Code does not define the word “threat,” аnd that the criminal offense which does concern threats, captioned “Terroristic Threats,” requires the actor to have an intent to terrorize or cause serious public inconvenience. He remarks that no such intent can be shown in this case where the subject of the alleged threat never learned of its existence, and where he was incarcerated at the time the statement was made.
The Commonwealth argues that
While Appellаnt‘s comment may satisfy the dictionary definition of a threat as suggested by the Commonwealth, we conclude that Appellant cannot be convicted of a crime based on conduct which is not clearly defined as prohibited. As we noted, an order underlying a contempt charge must be definite, clear, specific and leave no doubt or uncertainty as to what conduct is prohibited. Diamond v. Diamond, 715 A.2d at 1196. This requirement is critical because Appellant has been charged with a crime for violating thаt order. The order directs that Appellant not threaten the plaintiff or put her in fear, however, as evidenced by the parties’ divergent interpretations, uncertainty remains as to what type of communication is prohibited, to whom it must be communicated, and whether an element of intent must be established.
The necessity that the order clearly and specifically set forth the prohibited conduct is in keeping with the requirement that penal statutes may not be unconstitutionally vague. A penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and that it be done in a manner that does not encourage arbitrary and discriminatory enforcement. Commonwealth v. Hendrickson, 453 Pa.Super. 533, 684 A.2d 171 (Pa.Super.1996). This is particularly true when the conduct to be prohibited may be constitutionally protected speech.
“When engaged in a constitutionally protected activity of the fundamental nature of freedom of speech, we must exercise restraint in prohibiting the activity lest we destroy the right.” Commonwealth v. Gowan, 399 Pa.Super. 477, 582 A.2d 879, 882 (Pa.Super.1990). However, the right to free speech is not absolute, and certain well-defined, limited classes of speech may be prevented and punished without raising constitu-
tional problems. Commonwealth v. Duncan, 239 Pa.Super. 539, 363 A.2d 803, 806 (Pa.Super.1975). Lewd, obscene, profane, libelous and insulting or “fighting words those which by their very utterance inflict injury or tend to incite an immediate breach of peace” are not constitutionally protected. Id. (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)). Only “true threats” fall within that group of expressions, such as fighting words, which are not constitutionally protеcted “pure speech.” U.S. v. Maxton, 940 F.2d 103, 105 (4th Cir.1991). A true threat is one which “on its face and in the circumstances in which it is made is so unequivocal, unconditionally immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir.1976).
While we have no difficulty concluding the statement made by Appellant in the presence of the deputies can be viewed as threatening in nature, we find the trial court order which Appellant was convicted of violating can be interpreted to permit this statement, as long as it did not occur in the plaintiff‘s presence or place her in fear. The order prohibited Appellant from “threatening . . . the Plaintiff or placing her in fear of abuse.” Whether the order prohibited a threatening statement which merely referred to the plaintiff or whether such a statement had to be made in the plaintiff‘s presence or in some manner subject her to fear, is uncertain. Thus, we cannot say that the order clearly and specifically precluded the conduct exhibited by Appellant. Nor can it be argued that since the trial court judge, who entered the order and found Appellant guilty, knew what conduct was prohibited, the conviction should stand. It is necessary that the order 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.” Diamond v. Diamond, 715 A.2d at 1196. (emphasis added).
In these circumstances we cannot find that Apрellant had sufficient notice that a statement lacking any measure of immediacy, made outside the presence of the person to whom it would be directed, and which did not cause the protected person to feel threatened, constituted a violation of the court order.1
We have stated “a determination of criminal contempt is a criminal conviction conferring on the contemnor all the negative characteristics of being a convicted criminаl. The right of a citizen to be free of the stigma of an unfounded criminal conviction is a hallmark of American jurisprudence.” Diamond v. Diamond, 715 A.2d at 1195. Under the circumstances of this case we conclude the court erred in finding Appellant in indirect criminal contempt of its order, and we vacate his judgment of sentence.
Judgment of sentence vacated. Jurisdiction relinquished.
Judge EAKIN files a dissenting opinion in which Judge LALLY-GREEN joins and notes her dissent.
Judge ORIE MELVIN files a dissenting opinion in which Judge STEVENS joins.
EAKIN, J., dissenting:
The purpose of the terroristic threats statute is to prevent “the psychological distress that follows from an invasion of another‘s sense of personal security.” Commonwealth v. Tizer, 454 Pa.Super. 1, 684 A.2d 597, 600 (1996). When considering whether personal security has been invaded, the victim‘s perception of the threat is relevant; security in this context is the perception of safety, which
However, the goal of a PFA order is different: it is cessation of abuse.
I join in dissent.
ORIE MELVIN, J., dissenting:
I believe appellant‘s conduct clearly constituted a threat and therefore violated the trial court‘s order. Furthermore, I believe the majority‘s holding eviscerates the purpose and goals of the Protection from Abuse Act,
The issue in this case is whether appellant violated the PFA order by stating, “I‘m going to kill this bitch.” The majority engages in a discussion of what constitutes a threat only to conclude, what is exceedingly obvious, that the instant statement “can be viewed аs threatening in nature.” Despite this acknowledgement, the majority maintains that such a threat is permissible “as long as it did not occur in the plaintiff‘s presence or place her in fear.” Based on the common and ordinary meaning of the word “threat” and the purposes the PFA Act was designed to advance, I believe it is clear that the presence of the victim or a communication to the victim is unnecessary.
The majority finds that appellant‘s conviction for contempt cаnnot be sustained because the PFA order in question was not definite, clear, specific and left doubt in the mind of appellant as to the conduct prohibited. Specifically, the majority maintains the term “threatening” found in the order can be interpreted as prohibiting a threatening statement which merely referred to the plaintiff, Ms. Naeemah Banks, or where such a statement is made in her presence or in some manner subject her to fear. Therefore, because the majority believes the order did not clearly and specifically preclude the conduct exhibited by appellant, it vacates his contempt conviction.
The PFA order provided that appellant “shall refrain from abusing, harassing, threatening and stalking the Plaintiff or placing her in fear of abuse in any place where she may be found.” (emphasis added). The order does not require that appellant refrain from directly threatening Ms. Banks. In fact, because the above sentence is in the disjunсtive, a reasonable interpretation of the phrase “in any place where she may be found” only refers to the prohibition against placing Ms. Banks in fear of abuse. Appellant was served with a PFA order which prohibited him from threatening Ms. Banks. Yet moments after he received the order, he felt it necessary to express his intention to kill her while still in the presence of the deputies. I believe it would be clear to any reasonable individual that such egregious conduct is prohibited by thе court‘s order. Further, such conduct is an affront to the court‘s authority for which criminal contempt sanctions are appropriate. Therefore, I must disagree with the majority.
I find appellant‘s statement, “I‘m going to kill this bitch,” certainly falls within a reasonable person‘s ordinary understanding of what was prohibited by the order. I read the instant order to mean that a threat occurs when one utters words which are intended to convey a desire to inflict physical or other harm to the person the order was intended to protect and these words are communicated to
As noted by the majority, the PFA Act is a vanguard measure designed to deal with the problems of domestic abuse. Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053, 1054 n. 1 (Pa.Super.1979). The primary goal of the Act is to advance prevention of physical and sexual abuse. Snyder v. Snyder, 427 Pa.Super. 494, 629 A.2d 977, 981 (Pa.Super.1993). Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 490 A.2d 918, 922 (Pa.Super.1985); see Lee v. Carney, 435 Pa.Super. 405, 645 A.2d 1363, 1364 (Pa.Super.1994) (purpose of Act is to protect victims of domestic violence from the perpetrators of such abuse); Yankoskie v. Lenker, 363 Pa.Super. 448, 526 A.2d 429, 433 (Pa.Super.1987) (goal of the Act is to prоvide immediate protection from the threat of physical violence). In Eichenlaub, our Court quoted with approval the trial court‘s reflections as to the Act‘s purpose as applied to contempt proceedings under the Act:
The emergency nature of the judicial process pursuant to the Protection from Abuse Act requires that this Court act swiftly to prevent continued abuse and deal with contempt situations in an expeditious manner lest the violation giving rise to the contemрt become a criminal action for homicide. Faced with life and death situations, this Court must utilize its expertise in such matters to enforce its orders without the time delay in a jury trial. Eichenlaub, 490 A.2d at 922, quoting slip op. of trial court at 11.
I believe it is necessary to interpret and define the term “threat” in light of the PFA Act‘s purpose. The purpose of imposing contempt sanctions for a violation of a PFA order forbidding one from threatening another is to prevent the ultimate harm such threats foretell. Therefore, once an individual, who is subject to suсh an order and who is given notice of its contents, has announced his intention to kill, I believe it is clear and would be clear to any person a violation of the order has occurred.
In this case, immediately after he was served and while in the presence of law enforcement officers, appellant uttered an intention to kill a woman the PFA order explicitly intended to protect. Under the majority‘s holding, law enforcement officers in similar circumstances would be restrictеd until a threat is communicated to the intended victim. Only then would it be sufficiently clear that threatening has occurred to constitute a violation of the order. To allow law enforcement officers to stand idly by while a person expresses his intent to kill because the intended victim is not present or has not yet been informed of his intent is absurd and in total contradiction of the Act‘s purpose to prevent imminent harm. Under the majority‘s rationale, if after hearing appellant‘s statement the deputies immediately telephoned Ms. Banks and informed her of what they heard only then would appellant‘s statement constitute a threat. Thus, law enforcement officials would be required to inform the intended victim before they could take any action. This is contrary to the Act‘s purpose of reacting to early signs of abuse and preventing more serious abuse from occurring. The Act‘s numerous provisions enable courts to respond quickly and flexibly to advance warnings of abuse. Snyder, 629 A.2d at 981. Requiring courts to fashion PFA orders so as to distinguish every conceivable type of conduct that is prohibited would not allow law enforcement officers to respond quickly to advance warnings of abuse and would eliminate a tool for combating domestic violence.
While it is true appellant in this case was incarcerated at the time he was served with the PFA order, this fact does not eliminate the existence of a threat because Ms. Banks was not in imminent danger. First, the rec-
While inroads have been made in the judicial arena through PFA orders to protect victims and punish batterers, the majority opinion defeats the efforts targeted by these legal solutions. Victims of domestic abuse inherently rely on indirect criminal contempt sanctions as a remedy for violations of the PFA Act. The contempt road empowers abused victims and helps them escape from the violence. Taking away the force of contempt рowers as the majority has done strips away from victims of domestic abuse protection from their abusers. Therefore, I would affirm the judgment of sentence.