NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

CUMBERLAND COUNTY CHILDREN 
AND YOUTH 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

 No. 531 MDA 2022 

             

: 
: 
: 
: 
: 
: 
: 
: 
: 
: 

v. 

 

 

OSEPH M. SMITH       

 

Appellant 

Appeal from the Judgment of Sentence Entered March 3, 2022 
In the Court of Common Pleas of Cumberland County Domestic Relations 
at No(s):  00064 S 2020 

EFORE:   DUBOW, J., McLAUGHLIN, J., and COLINS, J.* 

MEMORANDUM BY McLAUGHLIN, J.:      FILED: MARCH 16, 2023 

 

Joseph A. Smith appeals from the judgment of sentence imposed after 

the  court  found  him  to  be  guilty  of  indirect  criminal  contempt  for  failing  to 

appear at a child support hearing. Smith argues the evidence was insufficient 

to prove that he had notice of the order to appear or that he willfully failed to 

comply, and that the court abused its discretion in sentencing him to a period 

of incarceration. We affirm. 

 

In  April  2021,  the  Cumberland  County  Children  and  Youth  Services 

(“CYS”) filed a complaint for child support against Smith.1 The court ordered 

Smith to appear, via Zoom, for a support conference on July 8, 2021, at the 

____________________________________________ 

* Retired Senior Judge assigned to the Superior Court. 

 CYS had previously filed a complaint in January 2020, which was dismissed 
in April 2020. Both complaints stated Smith resided on High Mountain Road in 
Shippensburg. 

     

    J

   

 

 

  B

  1

  

J-A27028-22  

court’s Domestic Relations Section (“DRS”). The court sent the order to Smith 

at an address on Koser Road in Shippensburg, via certified mail. See Order of 

Court,  5/27/21.  An  officer  filed  an  affidavit  of  personal  service  stating  he 

handed a copy of the order to Smith at that address. See Affidavit of Personal 

Service, 6/3/21, at 1.  It showed Smith’s signature under the Acceptance of 

Service. Id. at 2. 

 

The  record  is  silent  as  to  whether  Smith  attended  the  support 

conference.2 On July 8, 2021, the court ordered him to pay $1,152 per month 

in  child  support,  including  arrears.  See  Trial  Court  Opinion,  5/31/22,  at  1.3 

The  order  stated,  “Parties  must  within  seven  days  inform  the  Domestic 

Relations  Section  .  .  .  in  writing,  of  any  material  change  in  circumstances 

relevant  to  .  .  .  the  administration  of  the  support  order,  including,  but  not 

limited  to  .  .  .  change  of  personal  address[.]”  Order  of  Court  –  Allocated, 

7/8/21,  at  4.  It  also  stated,  “A  party  who  willfully  fails  to  report  a  material 

change in circumstances may be adjudged in contempt of court, and may be 

fined or imprisoned.” Id. The order stated copies were delivered to the parties 

that same day, July 8, 2021. Id.  

____________________________________________ 

2 The Rules of Civil Procedure provide that the court may enter a support order 
if a notified  party fails to attend the conference. See Pa.R.C.P. 1210.11(b), 
1910.12(b)(2). 

 The support order in the record, dated the same day of the hearing, requires 
Smith to pay $1,268 per month in support, with arrears of $4,137 to be due 
immediately.  The  discrepancy  between  the  figures  does  not  affect  our 
analysis. 

  3

- 2 - 

J-A27028-22 

J-A27028-22 

CYS filed a petition for contempt in September 2021 (“the civil contempt 

petition”), alleging Smith had failed to make any child support payments. The 

court scheduled a hearing for September 27, 2021. It issued an order requiring 

Smith to appear at the hearing, stating, “If you do not appear in person, the 

court may issue a warrant for your arrest and you may be committed to jail.” 

Order of Court, 9/13/21, at 1.  

Smith  failed  to  appear  for  the  hearing.  The  court  rescheduled  it  for 

October 27, 2021. The court issued another order requiring Smith to attend 

the hearing. See Order of Court, 9/29/21, at 1. In included the same language 

as the previous order regarding the potential for jail time. See id.  

Smith again failed to appear. The court issued a bench warrant for his 

arrest. The bench warrant was executed, and Smith was arrested. The court 

rescheduled the hearing for 1:30 p.m. on March 3, 2022.4 

At  11:12  a.m.  that  morning,  CYS  filed  a  petition  for  indirect  criminal 

contempt (“the criminal contempt petition”) under 23 Pa.C.S.A. § 4344 based 

on Smith’s failure to appear at the October 27 hearing. The court issued an 

order requiring Smith to appear for a hearing on the criminal contempt petition 

that afternoon, in  conjunction with  the  previously scheduled hearing on the 

civil contempt petition. 

____________________________________________ 

4 In the interim, due to the release of the children from CYS custody, Smith’s 
support order was modified such that no new support was due, and arrears in 
the amount of $11,201.24 became due at a rate of $1,000 per month. See 
Order, 2/9/22, at 1. 

- 3 - 

J-A27028-22 

At  the  hearing  on  the  two  petitions,  CYS  presented  the  testimony  of 

Scott Houser, a conference officer for the DRS. Regarding the failure to pay 

support, Houser presented a print-out from the computer system used to track 

the payments made in Smith’s case and testified that Smith had never made 

any payments toward his support obligation. N.T., 3/3/22, at 8.  

Regarding  the  failure  to  attend  the  civil  contempt  hearings,  Houser 

testified that at the time the petition was filed, Smith’s address of record with 

the DRS was a P.O. box in Walnut Bottom. Id. at 9. He stated the DRS mailed 

the  order  requiring  Smith  to  attend  the  October  27  hearing  to  the  Walnut 

Bottom address. Id. at 10. He also testified that the DRS submitted a postal 

verification to the postmaster of Walnut Bottom, which was returned by the 

postmaster with the response, “Mail is delivered at address given.” Id. at 10, 

11; Plaintiff’s Ex. 2 at 4. Houser stated that Smith never contacted the DRS 

to provide a change of address. N.T. at 17.  

Houser  testified  that  he  was  unaware  of  whether  Smith  has  ever 

physically  been  to  the  DRS.  Id.  at  14.  However,  Houser  said  that  another 

conference  officer’s  summary  stated  that  Smith  had  called  the  DRS  on  one 

occasion to ask for a continuance of an earlier enforcement conference. Id. 

Houser testified that despite having a P.O. box as Smith’s address of record, 

officers of the court  had arrested Smith at a residence when they executed 

the  bench  warrant.  Id.  at  12.  Houser  did  not  know  the  address  of  the 

residence. Id.  

- 4 - 

J-A27028-22 

 

Smith countered that CYS had failed to prove he had received notice of 

the order to appear on October 27. Smith made other arguments regarding 

why he did not pay support or receive notice of the October 27 hearing, which 

the court noted were premised on extra-record facts. Id. at 23. 

The court found Smith in civil contempt for failing to pay support, and 

guilty of indirect criminal contempt for willfully failing to appear for the October 

27 contempt hearing. Citing Godfrey v. Godfrey, 894 A.2d 776 (Pa.Super. 

2006), the court found the uncontested facts were that the order was mailed 

to Smith at the address he had provided to the DRS. Trial Ct. Op. at 4. The 

court therefore concluded that Smith had had notice of the hearing and that 

he willfully and intentionally failed to appear. Id. The court sentenced him to 

three to six months’ imprisonment for the finding of indirect criminal contempt 

and a consecutive 12 months’ probation for the finding of civil contempt.  

 

Smith appealed. He states his issues as follows: 

I. 

Did the court err when it found Mr. Smith in indirect criminal 
contempt,  where  the  evidence  was  insufficient  to  prove 
beyond a reasonable doubt that Mr. Smith received notice 
and willfully and intentionally defied the order to appear for 
court? 

II.  Did the court abuse its discretion in sentencing Mr. Smith to 
a  period  of  incarceration  without  procedural  safeguards  in 
place where Mr. Smith was not given any other opportunity 
to  comply  and  where  incarceration  for  indirect  criminal 
contempt should be used as a last resort? 

Smith’s Br. at 6. 

- 5 - 

J-A27028-22 

I. Sufficiency of the Evidence 

Smith first argues the evidence was insufficient to prove indirect criminal 

contempt  because  CYS  did  not  present  any  evidence  that  he  had  received 

notice of the original support order or knew of the requirement that he update 

the DRS with his address, let alone notice of the order requiring him to appear 

for a hearing on October 27. He points out that while Houser testified that his 

mailing address with the DRS at the time of the order scheduling the hearing 

was  the  P.O.  box,  Houser  did  not  testify  as  to  how  the  DRS  obtained  that 

address or that Smith had ever even been to the DRS. Smith argues that while 

there  was  testimony  that  he  had  contacted  the  DRS  once  to  request  a 

continuance,  Houser  did  not  explain  how  the  DRS  identified  Smith  as  the 

caller. He points out that Houser testified that officers of the court later located 

and arrested Smith at a residential address.  

Smith therefore  argues that the evidence  was insufficient  to prove  he 

had  actual  notice  of  the  October  27  hearing  and  that  he  voluntarily  or  with 

wrongful  intent  failed  to  appear.  Smith  contends  that  23  Pa.C.S.A.  §  4353, 

which  was  at  issue  in  Godfrey,  only  provides  that  notice  regarding  the 

enforcement of a support order may be satisfied when the DRS exercised “due 

diligence” in locating  a party, and when written notice  was delivered  at the 

party’s last residential address — not P.O. box — filed with the DRS. 

 

“Indirect criminal contempt is a violation of a court order that occurred 

outside the court's presence.” Commonwealth v. McMullen, 961 A.2d 842, 

849  (Pa.  2008).  Its  purpose  is  to  vindicate  the  authority  of  the  court  and 

- 6 - 

J-A27028-22 

punish willful disobedience. Commonwealth v. Bowden, 838 A.2d 740, 760 

(Pa.  2003);  Fatemi  v.  Fatemi,  537  A.2d  840,  845  (Pa.Super.  1988).  We 

review  a  finding  of  indirect  criminal  contempt  for  an  abuse  of  discretion. 

Commonwealth v. Baker, 766 A.2d 328, 331 (Pa. 2001). “An appellate court 

cannot find an abuse of discretion merely for an error of judgment unless, in 

reaching a conclusion, the  trial court overrides or misapplies the law, or its 

judgment  is  manifestly  unreasonable,  or  the  evidence  of  record  shows  that 

the  court's  judgment  exercised  is  manifestly  unreasonable  or  lacking  in 

reason.” Id. 

 

Evidence  is  sufficient  to  support  a  conviction  for  indirect  criminal 

contempt when, viewed in the light most favorable to the verdict winner, it 

could  allow  the  fact-finder  to  find  every  element  of  the  crime  beyond  a 

reasonable  doubt.  Commonwealth  v.  Brumbaugh,  932  A.2d  108,  109 

(Pa.Super. 2007). “Any doubts regarding a defendant’s guilt may be resolved 

by the fact-finder unless the evidence is so weak and inconclusive that as a 

matter  of  law  no  probability  of  fact  may  be  drawn  from  the  combined 

circumstances.” Id. at 109-10. 

 

The elements of indirect criminal contempt  are: (1) “the court’s order 

was definite, clear,  specific, and  leaving no  doubt in  the person to whom  it 

was addressed of the conduct prohibited,” (2) “the contemnor had notice of 

the order,” (3) “the act constituting the violation was volitional,” and (4) “the 

contemnor acted with wrongful intent.” McMullen, 961 A.2d at 849; see also 

Baker, 766 A.2d at 331. Formal service is not required, so long as the party 

- 7 - 

J-A27028-22 

charged  with  indirect  criminal  contempt  had  knowledge  of  the  order.  See 

Commonwealth  v.  Stevenson,  283  A.3d  196,  205-06  (Pa.  2022).5  “The 

inquiry must be whether the person’s knowledge was such that a contempt 

citation  for  disobedience  to  the  order  could  not  be  said  to  constitute  unfair 

surprise.” Commonwealth v. Fladger, 378 A.2d 440, 443 (Pa.Super. 1977). 

 

Section 4344 of the Domestic Relations Code specifically provides for a 

finding of criminal contempt based on a party’s willful failure to comply with 

“a duly served order”: 
 

§ 4344. Contempt for failure of obligor to appear 

A person who willfully fails or refuses to appear in response to a 
duly  served  order  or  other  process  under  this  chapter  may,  as 
prescribed  by  general  rule,  be  adjudged  in  contempt.  Contempt 
shall be punishable by any one or more of the following: 

(1) Imprisonment for a period not to exceed six months. 

(2) A fine not to exceed $500. 

(3) Probation for a period not to exceed six months. 

23 Pa.C.S.A. § 4344.  

In  Godfrey,  we  considered  the  notice  requirement  for  a  finding  of 

indirect  criminal  contempt  under  Section  4344.  The  defendant  in  Godfrey 

argued he had never received notice of the order requiring him to appear for 

a support hearing. 894 A.2d at 779. The DRS presented evidence that notices 

of the hearing were sent by regular and certified mail to the defendant’s last 

____________________________________________ 

5 See also In re Messmore’s Estate, 141 A. 724, 726 (Pa. 1928) (explaining 
liability for contempt arises where a party had actual, personal knowledge of 
a court order, even where the order has not been served upon them). 

- 8 - 

J-A27028-22 

known residential address — these went returned and unclaimed — and the 

defendant testified that he lived at the address “off and on” that season and 

still had personal effects at that address. Id. at 779, 781. The defendant had 

also been found in civil contempt for failure to pay support three times in the 

preceding three years. Id. at 779, 779 n.2. 

The  trial  court  in  Godfrey  found  the  defendant  guilty.  It  relied  on 

Section 4353(a.1), which provides, 

(a.1)  Delivery.--In  any  subsequent  child  support  enforcement 
action  between  the  parties,  upon  sufficient  showing  that  due 
diligence has been made to ascertain the location of a party, the 
court or the department may deem due process requirements for 
notice and service of process to be met with respect to the party 
upon  delivery  of  written  notice  to  the  most  recent  residential 
address  or  employer  address  filed  with  the  domestic  relations 
section or the department pursuant to subsection (a).6 

23 Pa.C.S.A. § 4353(a.1). We affirmed, concluding DRS had acted with due 

diligence to locate the defendant and had sent the order to the defendant’s 

last  known  residential  address,  satisfying  notice  pursuant  to  Section 

4353(a.1).  Godfrey,  894  A.2d  at  781.  We  accordingly  affirmed  the  court’s 

finding that the defendant had willfully failed to appear. Id. 

We do not find Godfrey controlling, as Section 4353(a.1) only applies 

when  notice  was  sent  to  a  defendant’s  last  known  residential  address. 

Evidence  of  mailing  an  order  to  a  P.O.  box  therefore  does  not  invoke  the 

statute’s exception to the notice requirement. See 23 Pa.C.S.A. § 4353(a.1). 

____________________________________________ 

6  Subsection  (a)  requires  a  party  to  update  the  DRS  of  any  change  in 
“personal” address. 23 Pa.C.S.A. § 4353(a). 

- 9 - 

Nevertheless, we find Godfrey instructive, and the evidence sufficient 

to  prove  Smith  had  knowledge  of  the  order  he  violated.  CYS  presented 

testimony that Smith had contacted the DRS regarding the support action on 

at least one occasion; he was therefore aware of the action and how to contact 

the DRS.7 It also presented evidence that the DRS mailed the order requiring 

Smith’s attendance at the October 27 hearing to the address it had on file for 

him.8  See  Pa.R.C.P.  236,  Note  (providing  prothonotary  may  send  notice  of 

court order by mail); see also Pa.R.C.P. 1910.25(d)(1) (providing petition for 

contempt for failure to pay support may be served by ordinary mail). Finally, 

CYS presented evidence that the postmaster verified that this mailing address 

was  active.  See  Pa.R.C.P.  1910.13-1(a)(2)(i)  (providing  court  may  issue 

bench warrant for failure to appear at a contempt hearing  for failure to pay 

support, so long as there is evidence that DRS sent scheduling order by mail 

and verified the address with the postmaster). This evidence was sufficient for 

the court to conclude that Smith had knowledge of the order requiring him to 

appear on October 27. See Stevenson, 283 A.3d at 206.9 

____________________________________________ 

7 The record also reflects that Smith was served, in person, with notice of the 
original support hearing. 

 We observe this was not the same as the address used to notify Smith of 
the  initial  support  conference,  indicating  that  he  had  subsequently  updated 
DRS with a change of address. 

 Cf. Commonwealth v. Verga, No. 1544 MDA 2020, 2021 WL 5297525, at 
*2 (Pa.Super. Nov. 15, 2021) (unpublished memorandum) (finding evidence 
insufficient to support indirect criminal contempt conviction for violation of PFA 
(Footnote Continued Next Page) 

  8

  9

- 10 - 

J-A27028-22 

J-A27028-22 

II. Sentencing 

Smith argues the court abused its discretion in imposing a sentence of 

incarceration  where  less  severe  sanctions  were  appropriate.  He  argues  that 

Section  4344  provides  for  alternative  punishments  –  fines,  probation,  or 

incarceration  –  because  a  court  must  “fashion  an  appropriate  sentence” 

according to the facts of each case. Smith’s Br. at 22. Smith argues that his 

sentence of incarceration was unwarranted under the facts of his case since it 

was his first proceeding for failure to pay, and “[n]o previous sanctions were 

imposed to encourage [him] to comply with the order or to encourage him to 

participate in the contempt hearing process;” for instance, he had never had 

the opportunity to purge the finding of civil contempt for failure to pay before 

being found in criminal contempt for failure to appear. Id. at 22.  He contends 

that his periods of failure to pay and failure to appear were much shorter than 

the four-year period at issue in Godfrey. Id. at 21-22. 

An appellant does not have an absolute right to appeal a discretionary 

aspect  of  his  sentence.  Commonwealth  v.  Radecki,  180  A.3d  441,  467 

(Pa.Super. 2018). Rather, we will consider the issue where the appellant (1) 

filed a timely notice of appeal, (2) properly preserved the issue in the court 

below, (3) included a Pa.R.A.P. 2119(f) statement in his brief, and (4) raised 

____________________________________________ 

order where there was no evidence that anyone had sent a copy of the  PFA 
order to the defendant, personally served the defendant, or otherwise notified 
the defendant of the existence of the order, and trial court relied only on fact 
that the record and docket did not indicate an order had ever been returned 
as undeliverable). 

- 11 - 

J-A27028-22 

a  substantial  question  that  the  sentence  is  “inconsistent  with  a  specific 

provision  of  the  Sentencing  Code”  or  “contrary  to  the  fundamental  norms 

which underlie the sentencing process.” Id. at 467, 468 (citation omitted).  

Smith preserved his discretionary sentencing claim below, filed a timely 

notice  of  appeal,  and  included  a  Pa.R.A.P.  2119(f)  statement  in  his  brief. 

Smith’s  argument  that  his  sentence  of  three  months’  incarceration  was 

excessive  based  on  his  failure  to  appear  at  a  support  hearing  raises  a 

substantial  question.  Id.  at  467  (noting  an  argument  that  a  sentence  is 

excessive  only  raises  a  substantial  question  where  there  is  a  plausible 

argument  that  the  sentence  is  prima  facie  excessive  based  on  the  criminal 

conduct involved). However, we conclude Smith is not entitled to relief. 

A  sentencing  court  has  broad  discretion  in  sentencing,  and  we  will 

disturb the exercise of that discretion only upon a manifest abuse of discretion. 

Commonwealth  v.  Rosario,  248  A.3d  599,  613  (Pa.Super.  2021),  appeal 

denied,  262  A.3d  1258  (Pa.  2021),  and  cert.  denied  sub  nom.  Rosario  v. 

Pennsylvania,  142  S.  Ct.  1143  (2022).  “We  must  accord  the  sentencing 

court’s decision great weight because it was in the best position to review the 

defendant’s  character,  defiance  or  indifference,  and  the  overall  effect  and 

nature of the crime.” Id. (citation omitted).  

A court may impose a penalty of incarceration for the following reasons: 

(1) there is undue risk that during a period of probation or partial 
confinement the defendant will commit another crime; 

(2) the defendant is in need of correctional treatment that can be 
provided most effectively by his commitment to an institution; or 

- 12 - 

J-A27028-22 

(3) a lesser sentence will depreciate the seriousness of the crime 
of the defendant. 

42  Pa.C.S.A.  §  9725.  “Although  Pennsylvania’s  system  stands 

for 

individualized  sentencing,  the  court  is  not  required  to  impose  the  minimum 

possible confinement.” Radecki, 180 A.3d at 470 (citation omitted). 

 

The court sentenced Smith to three to six months in jail for his failure 

to  attend  the  second  contempt  hearing  the  court  had  scheduled  following 

Smith’s  failure  to  pay  his  court-ordered  child  support.  Therefore,  Smith’s 

argument  that  he  was  sanctioned  for  his  “first”  failure  to  comply  with  the 

orders of the court holds no weight, as he not only failed to comply with the 

order scheduling the October 27 hearing, but with the original support order 

and  the  order  requiring  him  to  appear  at  the  first  contempt  hearing. 

Furthermore, while a finding of civil contempt for failure to pay must afford a 

contemnor further opportunity to purge the contempt, a court does not need 

to offer any such opportunity to purge upon a finding of criminal contempt, as 

the  goal  of  the  sanction  is  not  to  obtain  compliance,  but  to  punish  non-

compliance. If the court had merely found Smith in civil contempt for failure 

to  pay  his  child  support,  his  two  failures  to  appear  would  have  had  zero 

repercussions. The court did not abuse its discretion in sentencing  Smith to 

three months to vindicate its authority and avoid depreciating the seriousness 

of Smith’s actions. 

In  conjunction  with  his  discretionary  sentencing  claim,  Smith  also 

argues  he  was  deprived  of  procedural  due  process.  Smith’s  Br.  at  20.  He 

- 13 - 

J-A27028-22 

Id. at 23. 

asserts that the last-minute notice of the criminal contempt petition gave him 

inadequate  time  to  prepare  a  defense,  particularly  where  he  was  not 

transported to the courthouse, but was participating from the prison by Zoom. 

Smith  failed  to  preserve  his  due  process  argument  in  the  trial  court. 

Smith did not ask for a continuance or object to the criminal contempt hearing 

on the basis that he had not had sufficient time to prepare a defense or that 

he was not physically present for the hearing, or otherwise present the issue 

below.  He  therefore  waived  it.  Pa.R.A.P.  302(a);  see  Commonwealth  v. 

Stultz, 114 A.3d 865, 885 (Pa.Super. 2015) (“due process sentencing claims 

- 14 - 

are waivable”). 

Judgment of sentence affirmed. 

udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 03/16/2023 

 

  J

    J

  D