Attorney Marc A. Scaringi Wins Acquittal of Indirect Criminal Contempt of Protection From Abuse Order
My client was subject to a Temporary Protection From Abuse Order. One of the provisions in the Order prohibited him from having contact with the protected party, his Wife. About six months into the Temporary Order, my client received text messages from his insurance company asking him to contact them. The insurance company’s number was included in the text as a hyper link. My client dials telephone numbers in the old fashioned way, digitally, one digit at a time on the key pad, instead of clicking the link. Plus, my client knew this number from memory. However, when he dialed what he thought was his insurance company’s number, he inadvertently dialed another number he knew from memory, his Wife’s. He saw his Wife’s mobile number and her photo appeared on his screen. He immediately cancelled the call. (Out of the 10 digits for a phone number seven of the ten digits between the insurance company and the Wife’s number were the same). After immediately cancelling the accidental call to his Wife, my client called his insurance company and conducted the business he intended with them.
Later, my client was arrested and charged with Indirect Criminal Contempt (ICC) of the Temporary Protection From Abuse Order pursuant to 23 Pa.C.S. § 6114. He was facing a fine of up to $1,000.00- and six-months incarceration. At the ICC hearing, the Wife testified that she received the call, but it was blocked because she had blocked her Husband’s phone number. When she received the call, she went to the police barracks and requested criminal charges be filed. At the ICC hearing, my client testified and provided his account of what happened. We brought into evidence a screen shot of his phone log showing he made the call and then immediately cancelled the call. At the conclusion of the hearing, I explained that the Commonwealth failed to prove each element of the offense beyond a reasonable doubt. A finding of criminal contempt must be supported by the following four elements:
(1) the court's order must be definite, clear, specific, and leave no doubt or uncertainty in the mind of the person to whom it was addressed as to the conduct prohibited;
(2) the contemnor must have had notice of the specific order;
(3) the act constituting the violation must have been volitional; and
(4) the contemnor must have acted with wrongful intent.
I argued the Commonwealth failed to prove that my client acted volitionally and with wrongful intent. The Judge agreed and found my client not guilty. It was gratifying to hear the Judge explain the fact that my client cancelled the call, which is what we put into evidence and strongly argued, is the reason. My client is very happy. We will now petition to expunge this arrest from his record.
One other point worth mentioning, well in advance of the hearing, the District Attorney asked me about a settlement in which my client would admit to the violation. The District Attorney said he had other witnesses who would testify that my client was attempting to communicate to his Wife indirectly, which is also a violation. So, after a thorough interview with my client and review of text messages he exchanged with a third party, we decided to not plead guilty and to go to trial. When the day for trial came, the District Attorney called only one witness; he did not call the supposed third-party witness even though she was there in the courtroom. Perhaps he did not call the third-party witness because what she had to offer did not amount to a violation of the PFA by my client. The lesson here is to be very careful when negotiating with an opposing attorney, including a District Attorney. You never know if the opposing counsel is bluffing, exaggerating or posturing. In this case, we did not know, but my client, believing in his innocence, wanted to roll the dice and go to trial. In this case, it was the right decision.