WHISPERING “F*CK YOU” TO A PFA VICTIM WHILE IN COURT IS NOT A GOOD IDEA

IN A NON-PRECEDENTIAL MEMORANDUM DECISION, THE SUPERIOR COURT, IN THE CASE OF COMMONWEALTH v. FORMICA, No. 524 MDA 2015, (Pa. Super. October 15), AFFIRMED THE DECISION OF LANCASTER COUNTY COMMON PLEAS COURT JUDGE MERRILL M. SPAHN, JR. THAT HELD WHISPERING WORDS THAT SOUNDED LIKE “F*CK YOU” TO A VICTIM DURING A PFA PROCEEDING AMOUNTS TO INDIRECT CRIMINAL CONTEMPT.

FACTS
Richard Formica appealed from a judgment of sentence entered in the Lancaster County Court of Common Pleas, following his bench trial conviction of indirect criminal contempt.

Formica had been advised of a Protection from Abuse order and had requirements thoroughly explained to him. However, despite having received an order not to interact with victim, Formica looked at victim and directed comments at her at a January 7, 2015 court hearing. On January 27, 2015, the victim testified that Formica stared at her at the January 7, 2015 hearing and whispered words that sounded to her like “f*ck you.” She further testified that those comments caused her extreme concern because she is scared to death of Formica. Officer Joel Ayers, during that same January 27th hearing that he observed Appellant look at victim during January 7, 2015 hearing and mouth something inaudible such as “why” or “what” at which point the victim became distraught and started physically shaking and trembling. The Court found that despite inconsistency in testimony as to Appellant’s exact words, there was no doubt Formica stared at victim and said something that immediately made the victim anxious and fearful. Formica was thereafter convicted of Indirect Criminal Contempt.

ISSUE

Formica appealed his conviction, arguing that there was insufficient evidence to prove beyond a reasonable doubt that he was guilty of Indirect Criminal Contempt where his mouthing of inaudible words during a court proceeding was de minims, non-threatening and done without wrongful intent.

HOLDING

The Superior Court affirmed the decision of Judge Spahn, finding that the evidence presented by the Commonwealth was sufficient and Formica’s issue merited no relief.

REASONING

The Superior Court reasoned that Formica’s comments served no legitimate purpose and, given the history between him and the victim, his comments were threatening or intimidating in nature. The Court further concluded that Formica’s comments were made to influence the victim, intimidate her, or blame her for circumstances in which he found himself as result of his actions. Based upon the totality of circumstances and credibility of witnesses, the Court found that Formica’s comments and actions were volitional in nature and made with wrongful intent, thereby sufficient to sustain his conviction for indirect criminal contempt.

http://www.pacourts.us/assets/opinions/Superior/out/J-S58033-15m.pdf?cb=2

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