Commonwealth, Aplt. v. Ivery, B. ( 2015 )

[J-67A-2014, J-67B-2014 and J-67C-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 47 EAP 2013
:
Appellant : Appeal from the judgment of the Superior
: Court entered on 05/15/2012 at No. 1268
: EDA 2011, reargument denied 07/18/2012,
v. : vacating and remanding the judgment of
: sentence entered on 05/06/2011, in the
: Philadelphia Municipal Court, Criminal
KATRINA MOODY, : Division at No. MC-51-MD-0000083-2011.
:
Appellee : ARGUED: September 9, 2014
:
COMMONWEALTH OF PENNSYLVANIA, : No. 48 EAP 2013
:
Appellant : Appeal from the judgment of the Superior
: Court entered on 05/15/2012 at No. 1310
: EDA 2011, reargument denied 07/18/2012,
v. : vacating and remanding the judgment of
: sentence entered on 05/06/2011, in the
: Philadelphia Municipal Court, Criminal
BARBARA IVERY, : Division at No. MC-51-MD-0000085-2011.
:
Appellee : ARGUED: September 9, 2014
:
COMMONWEALTH OF PENNSYLVANIA, : No. 49 EAP 2013
:
Appellant : Appeal from the judgment of the Superior
: Court entered on 05/15/2012 at No. 1316
: EDA 2011, reargument denied 07/18/2012,
v. : vacating and remanding the judgment of
: sentence entered on 05/06/2011, in the
: Philadelphia Municipal Court, Criminal
BERNADETTE ARCHIE, : Division at No. MC-51-MD-0000084-2011.
:
Appellee : ARGUED: September 9, 2014
OPINION
MR. JUSTICE EAKIN DECIDED: October 27, 2015
This Court granted review to consider whether the Superior Court erred in vacating
appellees’ direct criminal contempt convictions. We conclude the trial judge acted
appropriately and violated no due process rights; thus, we reverse the order of the
Superior Court and remand for reinstatement of the sentences.
On April 6, 2011, Shaun Warrick appeared in the Philadelphia Municipal Court for
his preliminary hearing on two homicide charges. Appellees are relatives of the victims,
and were seated in the courtroom gallery. Before testimony began, Warrick advised the
court his mother had retained private counsel for him and requested a continuance. At
the court’s request, his mother, escorted by court officer Richard Brandt, came forward to
testify. Appellees thereupon verbally and physically assailed Ms. Warrick, and a general
melee erupted in the courtroom. Warrick tried to defend his mother, which led to an
expanded struggle that required deputy sheriffs and police reinforcements from outside
the courtroom to restore order. The courtroom was locked down for three hours.
When court reconvened, the trial court held a summary hearing for direct criminal
contempt. The court noted contempt involves conduct in the presence of the court that
delays proceedings and determined the conduct here was “about as direct of a contempt
as you can ever get.” N.T. Contempt Hearing, 4/6/11, at 5. The court “put on the record
what happened that [it] observed[,]” as:
[W]e tried to bring [Warrick]’s mother in as a witness to testify as to whether
or not she hired an attorney for [him]. That’s all.
When the court officer went out to get the mother, a fight broke out in the
gallery involving numerous people in which the court officer got stuck in the
middle and his arm was hit during the proceeding. He can tell us more
about what happened.
Because of that, we had to shut down the court, call the sheriff. Almost
every free sheriff in the building came running in here. We locked down
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the courtroom. [Warrick] went nuts and started banging on the wall
because he saw his mother being assaulted. The door got locked. And
the sheriff had to wrestle with [Warrick] while all this happened, all because
of what happened in the gallery of the courtroom.
Id., at 6-7.
The court officer then testified and confirmed the identity of appellees as the
individuals who caused the disturbance. Appellees were not represented by counsel at
that time and did not question the court officer. The court asked, “Do any of you ladies
have something to say?” Id., at 12. Appellee Archie spoke up and was sworn in, but
before she made a statement on the record, the court opted to delay proceedings for the
appointment of counsel, given the likelihood of criminal charges and appellees’ rights
against self-incrimination with respect to those charges. Thus, proceedings ended for
the day without testimony from appellees or any other witnesses. The court did make an
“initial finding” of direct criminal contempt but deferred “final determination as to what the
sentence should be” until appellees could meet with counsel. Id., at 15.
One week later, appellees Moody and Ivery were present with counsel.1 Moody
and Ivery submitted a joint continuance request, seeking to locate and interview
witnesses to the altercation, arguing summary contempt defendants have a right to
present their own witnesses and cross-examine other witnesses. The court denied the
request, finding they were not entitled to call and cross-examine witnesses, “especially in
extreme instances of contempt that take place in the presence of the [c]ourt.” N.T.
Sentencing, 4/13/11, at 8. In the court’s view, the only process due was appointment of
counsel for purposes of allocution before sentencing and to present circumstances that
might “mitigate the events[.]” Id., at 9. Regarding appellees’ claim of entitlement to
cross-examine the court officer, the court stated it could disregard everything the court
1 Archie’s counsel was unavailable, so the court rescheduled her sentencing hearing;
ultimately Archie presented no evidence and apologized for her misconduct.
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officer said because the court itself observed the contemptuous conduct. Id., at 10. It
explained the court officer was called only to articulate details “for purposes of illustration”
on the record, and his testimony was “not necessary as a basis for making [its] finding of
contempt because [it] observed [the contemptuous conduct] with [its] own eyes[.]” Id., at
10-11. The court ultimately sentenced each appellee to five to ten days imprisonment.
Appellees appealed, and the three cases were consolidated. In its Pa.R.A.P.
1925(a) opinion, the court reiterated its view that, where the judge witnesses the
offending behavior, neither appointment of counsel nor further development of evidence
is required for a contempt finding; the court declared, “No amount of witnesses or cross
examination of the judge or the court officer would convince this [c]ourt, the fact finder,
that it does not know what it saw.” Trial Court Opinion, 6/24/11, at 16-17. The court
also addressed affidavits from witnesses to the brawl, concluding the affidavits conflicted
with the events it had witnessed, which illustrated why it is “unnecessary and wasteful” to
entertain such evidence in a case where the court itself observed the contemptuous
behavior. Id., at 17 n.8. The court explained, “This is exactly why there was no need for
this [c]ourt to hear witnesses to dispute the [c]ourt’s version of events prior to making a
finding of contempt.” Id.
On appeal, appellees claimed: (1) the evidence was insufficient; (2) they were
denied their rights to counsel, to cross-examine witnesses, to present evidence, and to
testify; and (3) the sentences were an abuse of discretion.2 In a published opinion, the
Superior Court viewed the second issue as implicating due process, deemed it
meritorious, and vacated and remanded for a new contempt proceeding.
2 Appellees raised the same three issues; the cases were consolidated for argument, and
a single opinion resolved the appeals. Appellees file a single joint brief in this appeal.
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Commonwealth v. Moody, 46 A.3d 765, 771, 776 (Pa. Super. 2012).3 The court noted
appellate review of direct-criminal-contempt matters is “‘confined to an examination of the
record to determine if the facts support the trial court’s decision.’” Id., at 771 (quoting
Commonwealth v. Jackson, 532 A.2d 28, 32 (Pa. Super. 1987)). It added that the statute
governing summary punishment for contempt requires that the misconduct occur in the
court’s presence. Id., at 772 (citation omitted); see also 42 Pa.C.S. § 4132(3).4
The court held the record did not support the trial court’s position that it had
witnessed the contemptuous conduct; rather, it had substantially relied upon the court
officer’s testimony to determine appellees’ identities and the essential elements of
contempt. Moody, at 774. The court viewed the record observations of the trial court
describing appellees’ conduct to be “general and vague[.]” Id., at 775 (quoting N.T.
Contempt Hearing, 4/6/11, at 6 (“[A] fight broke out in the gallery involving numerous
people in which the court officer got stuck in the middle and his arm was hit during the
proceeding. He can tell us more about what happened.”)). Because the record did not
demonstrate the trial court “personally observed” appellees’ actions, the Superior Court
held the conduct did not occur “in the presence of the court,” as required under § 4132(3).
Id. Given its position that review was confined to the record supporting the contempt
finding, the court did not discuss the sentencing proceedings or the trial court’s opinion in
which it described its personal observations.
3 President Judge Gantman concurred in the result without opinion.
4 The power of the courts “to impose summary punishments for contempts of court shall
be restricted to M cases M [where t]he misbehavior of any person in the presence of the
court M obstruct[s] the administration of justice.” Id. “To sustain a conviction for direct
criminal contempt under this provision[,] there must be proof beyond reasonable doubt (1)
of misconduct, (2) in the presence of the court, (3) committed with the intent to obstruct
the proceedings, (4) that obstructs the administration of justice.” Williams v. Williams,
721 A.2d 1072, 1073 (Pa. 1998) (citation omitted).
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The Superior Court further reasoned the trial court’s reliance on a witness meant
the proceeding was not summary but was an evidentiary hearing where appellees
“should have been permitted to cross-examine the court crier, and to present their own
witnesses[.]” Id. (citation omitted). Because it found the trial court abused its discretion
in holding a contempt hearing that violated appellees’ due process rights, the court
vacated the judgments and remanded for a new contempt hearing.5
We granted allowance of appeal to determine:
(1) Did the Superior Court err in ruling that [appellees’] violent in-court
conduct was not summary direct criminal contempt because the trial court
supposedly did not observe the conduct?
(2) In cases of summary direct criminal contempt, is a defendant entitled to
counsel and to call witnesses?
Commonwealth v. Moody, 79 A.3d 1093, 1094 (Pa. 2013) (per curiam).
Both issues present questions of law subject to a de novo standard of review and a
plenary scope of review. See Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014)
(citation omitted). However, as to the first issue, the parties are not in accord regarding
what may be considered in determining contemptuous behavior, a dispute that implicates
the scope of review.
The Commonwealth contends the Superior Court’s conclusion the trial court failed
to personally observe the contemptuous conduct was erroneous because appellees
waived the issue. It asserts appellees did not raise that argument below; instead,
appellees claimed the right to counsel and to call and cross-examine witnesses applies in
all contempt proceedings, including summary proceedings. Accordingly, the
Commonwealth submits the court improperly addressed the issue sua sponte.
5 The court briefly reviewed and rejected the sufficiency claim but did not address the
sentencing claim, given its decision to remand. Id., at 775-76.
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On the merits, the Commonwealth contends the Superior Court misapprehended
the relevant record. We agree. The Commonwealth stresses the conduct occurred in
the courtroom gallery during the course of judicial proceedings, and the nature of the
conduct — one appellee standing and holding a sign while screaming obscenities, then
the two other appellees assaulting Ms. Warrick — was such that the trial court necessarily
would have observed it. In addition to its inferential argument, the Commonwealth cites
the trial court’s repeated notations that it saw appellees engage in the contemptuous
behavior. For instance, when court reconvened after the brawl, the court began by
stating, “Contempt of court is something that happens in the presence of the [j]udge and
delays proceedings. That’s what happened. M [L]et me just put on the record what
happened that I observed.” N.T. Contempt Hearing, 4/6/11, at 5-6. The
Commonwealth continues that the court then stated a fight broke out in the gallery as Ms.
Warrick was being brought in to testify, and the melee required closing the courtroom.
The Commonwealth also cites the court’s comments at the first sentencing
hearing, where it explained the court officer had been called only “‘for purposes of
illustration’” and “‘[i]t was enough what [the court] observed’” to support the contempt
finding; the court added it had “‘observed with [its] own eyes what these two ladies did[,]’”
referring to appellees. Commonwealth’s Brief, at 20-21 (quoting N.T. Sentencing,
4/13/11, at 10-11). The Commonwealth argues the Superior Court erred in dismissing
these statements as if they were not part of the relevant record. Finally, the
Commonwealth avers the court incorrectly deemed the trial court’s observation of the
misconduct to be an element of contempt that the court was obligated to prove. It cites
Commonwealth v. Falana, 696 A.2d 126 (Pa. 1997), insisting this Court expressly held
the in-the-presence-of-the-court requirement is satisfied where misconduct occurs in or
near the courtroom, regardless of whether the trial court personally views it.
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As to the second issue, the Commonwealth argues a direct-criminal-contempt
defendant is not entitled to counsel and to call witnesses during summary proceedings.
In support, the Commonwealth contends Commonwealth v. Crawford, 352 A.2d 52 (Pa.
1976), was wrongly decided. See id., at 54 (“[T]he summary conviction for contempt of
court of a witness who was not represented by counsel cannot stand[.]”). The
Commonwealth asks this Court to “reconsider, and overrule, its prior decision in
Crawford.” Commonwealth’s Brief, at 35.
Appellees dispute the Commonwealth’s waiver argument, noting they challenged
the sufficiency of the evidence, a claim necessarily implicating whether the trial court
actually observed the contemptuous conduct. Appellees cite their post-sentence
motions, which did not directly assert the trial court failed to observe their conduct, but
maintained the “evidence introduced” was insufficient because it did not demonstrate
appellees committed any acts, much less acts constituting contempt. Appellees contend
they reiterated this argument in their Pa.R.A.P. 1925(b) statements and Superior Court
briefs, and the Superior Court agreed the record did not establish a requisite “element of
summary direct criminal contempt[,]” i.e., the trial court’s actual observation of the
contemptuous conduct. Appellees’ Brief, at 21. The fact the court awarded a lesser
form of relief than sufficiency relief, appellees submit, does not mean its discussion and
holding did not derive from the sufficiency argument.
On the merits, appellees aver summary proceedings for direct criminal contempt
are permitted “only when the actions occurred within the full view of the judge and the
judge does not need any witnesses to explain what occurred.” Id., at 15. Appellees
stress that, although the trial court stated at the summary hearing that it would put on the
record what it observed, its ensuing description did not identify any of the three appellees
or describe their actions; instead, the court merely noted a fight erupted in the courtroom,
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causing Warrick to act out. Appellees posit the court may have been distracted at the
time and did not actually see what caused the altercation. In appellees’ view, the record
demonstrates three facts in support of their position: (1) the court never put anything on
the record concerning appellees and never identified what they did; (2) the court called a
witness to testify as to what happened; and (3) the court asked numerous questions to
elicit the facts.
Appellees recognize the court at sentencing stated that the court officer’s
testimony had only been introduced for illustrative purposes and it did not require the
court officer’s testimony to substantiate the contempt because it saw the contemptuous
conduct with its own eyes. Appellees argue, however, the court’s statements at
sentencing were “materially inconsistent” with its statements and actions at the summary
hearing. Id., at 17. Appellees posit the Superior Court was correct in concluding that
employing summary contempt in these circumstances was improper. Appellees do not
respond to the Commonwealth’s argument that, under Falana, proof of judicial
observation is not required for summary direct criminal contempt.
As to the second issue, appellees contend even if summary contempt was
permissible under these circumstances, the trial court violated due process by conducting
the summary hearing and finding them in contempt when they were neither represented
by counsel nor afforded an opportunity to present or cross-examine witnesses.
Initially, we decline a finding of waiver vis-à-vis the question of whether the trial
court actually observed appellees’ conduct. This Court has held courts are generally
prohibited from raising claims sua sponte that the parties did not raise below or in
appellate pleadings. See Commonwealth v. Colavita, 993 A.2d 874, 891 (Pa. 2010)
(“Where the parties fail to preserve an issue for appeal, the Superior Court may not
address that issue sua sponte.”) (internal quotation marks omitted); Pa.R.A.P. 302(a)
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(issues not raised below are not reviewable on appeal). However, putting aside the
question of whether the Superior Court rightly comprehended the trial court’s findings, the
Superior Court’s focus on the trial court’s observations arguably may be said to arise from
its consideration of appellees’ sufficiency claim.6 On such a record, we are not prepared
to upset the determination below on waiver grounds and thus proceed to the substantive
issues.
The United States Supreme Court has long recognized the inherent power of a
court to impose summary punishment for misconduct that occurs in its presence:
To preserve order in the courtroom for the proper conduct of business, the
court must act instantly to suppress disturbance or violence or physical
obstruction or disrespect to the court, when occurring in open court. There
is no need of evidence or assistance of counsel before punishment,
because the court has seen the offense. Such summary vindication of the
court’s dignity and authority is necessary. It has always been so in the
courts of the common law, and the punishment imposed is due process of
law.
Cooke v. United States, 267 U.S. 517, 534 (1925).
In Pennsylvania, “[t]his Court has long upheld a court’s power to maintain
courtroom authority” by the imposition of summary punishment for contempt in
appropriate cases. Behr v. Behr, 695 A.2d 776, 778 (Pa. 1997). “[A] summary
proceeding to protect the orderly administration of justice is perfectly proper[.] M The
court must be able to control those appearing before it, and must be able to use its power
summarily to avoid interference with the principal matter before the court.”
Commonwealth v. Africa, 353 A.2d 855, 865 (Pa. 1976) (plurality). “Summary
proceedings for contempt of court are those in which the adjudication omits the usual
6 Appellees argue the failure to observe was “necessarily” implicit in a sufficiency claim,
but this is not precisely so. Failure to observe may affect what evidence there was, but it
does not affect the weighing of that evidence. Simply saying the evidence was
insufficient does not alert a reviewing court to the actual issue; nevertheless, we decline a
finding of waiver in this case.
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steps of ‘the issuance of process, service of complaint and answer, holding hearings,
taking evidence, listening to arguments, awaiting briefs, submission of findings, and all
that goes with a conventional court trial.’” Commonwealth v. Stevenson, 393 A.2d 386,
392 (Pa. 1978) (quoting Sacher v. United States, 343 U.S. 1, 9 (1952)). Thus, “the
summary contempt power has been upheld against due process attacks[.]” Id. (citations
omitted). Respecting due process, this Court has candidly acknowledged summary
punishment for criminal contempt is a “drastic departure from our traditional view of due
process[.]” Commonwealth v. Marcone, 410 A.2d 759, 763 (Pa. 1980). However,
Marcone highlighted the justification for that departure, which was well articulated by
Chief Justice Taft in Cooke:
We think the distinction [between contempt merely “in the presence of the
court” and that which takes place “in open court” or “in the face of the court,”
thereby justifying the departure from the traditional view of due process
requirements,] finds its reason not any more in the ability of the judge to see
and hear what happens in the open court than in the danger that, unless
such an open threat to the orderly procedure of the court and such a flagrant
defiance of the person and presence of the judge before the public in the
very hallowed place of justice M is not instantly suppressed and punished,
demoralization of the court’s authority will follow. Punishment without
issue or trial was so contrary to the usual and ordinarily indispensable
hearing before judgment constituting due process that the assumption that
the court saw everything that went on in open court was required to justify
the exception; but the need for immediate penal vindication of the dignity of
the court created it.
Id. (quoting Cooke, at 536) (internal quotation marks omitted).
This Court has noted the inherent authority of courts to impose summary
punishment for contempt is a power incidental to the grant of judicial power under Article
V of the Pennsylvania Constitution. See id. (citations omitted); see also Commonwealth
v. McMullen, 961 A.2d 842, 849 (Pa. 2008) (citation omitted). Additionally, the General
Assembly has addressed the power in enacting the Judicial Code. See, e.g., 42 Pa.C.S.
§ 4132(3) (“The power of the several courts of this Commonwealth Mto impose summary
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punishments for contempts of court shall be restricted to M cases M [where, inter alia,
t]he misbehavior of any person in the presence of the court M obstruct[s] the
administration of justice.”). The Judicial Code provides the summary punishment of
commitment for such contempt is only available where the misbehavior takes place “in
open court.” Id., § 4133.7
Further, the power to impose summary punishment for direct criminal contempt is
not applicable to minor misconduct, even in open court, but instead is available only for
“‘such conduct as created an open threat to the orderly procedure of the court and such
flagrant defiance of the person and presence of the judge before the public that, if not
instantly suppressed and punished, demoralization of the court’s authority will follow.’”
Commonwealth v. Garrison, 386 A.2d 971, 976 (Pa. 1978) (plurality) (quoting Jessup v.
Clark, 490 F.2d 1068, 1071 (3d Cir. 1973)). “Only in such circumstances may a court
subject a contemn[o]r to punishment without the procedural protections otherwise
accorded [to] the criminally accused.” Id. In sum, courts have inherent power and
statutory authority to impose summary punishment for direct criminal contempt for willful
misconduct that occurs in the presence of the court and obstructs its fair and orderly
process. See id., at 975 (citations omitted); accord In re Martorano, 346 A.2d 22, 27 (Pa.
1975) (citations omitted).
With these principles in mind, we turn to the specific issues presented. As
previously discussed, the inherent power of a court to impose summary punishment for
contemptuous misbehavior in its presence has long been recognized in both statute and
7 Contempt can be committed directly or indirectly, and may be deemed civil or criminal
depending on the court’s purpose for imposing punishment. See Crozer-Chester
Medical Center v. Moran, 560 A.2d 133, 136-37 (Pa. 1989). Classification determines a
contemnor’s procedural rights and a court’s sentencing options.
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case law, and does not offend our notions of due process. Notably, as stated by the
United States Supreme Court:
[I]t is a settled doctrine in the jurisprudence both of England and of this
country, never supposed to be in conflict with the liberty of the citizen, that,
for direct contempt[] committed in the face of the court, M the offender may,
in its discretion, be instantly apprehended and immediately imprisoned,
without trial or issue, and without other proof than its actual knowledge of
what occurred; and that, according to an unbroken chain of authorities,
reaching back to the earliest times, such power, although arbitrary in its
nature and liable to abuse, is absolutely essential to the protection of the
courts in the discharge of their functions. Without it, judicial tribunals would
be at the mercy of the disorderly and violent, who respect neither the laws
enacted for the vindication of public and private rights, nor the officers
charged with the duty of administering them.
In re Terry, 128 U.S. 289, 313 (1888). In In re Terry, the Supreme Court was presented
with facts similar to the present matter — acts of violence in open court resulting in injury
to a court officer. The contemnor, an attorney, physically engaged the court officer,
“beating [him], and M assaulting him with a deadly weapon, with intent to obst[ruct] the
administration of justice[.]” Id., at 305-06. On appeal, the contemnor disputed the trial
court’s version of events and complained he was not given an opportunity to be heard.
Acknowledging the traditional notions of due process, the Supreme Court explained:
[T]here is another rule of almost immemorial antiquity, and universally
acknowledged, which is equally vital to personal liberty, and to the
preservation of organized society, because upon its recognition and
enforcement depend the existence and authority of the tribunals
established to protect the rights of the citizen, whether of life, liberty, or
property, and whether assailed by the illegal acts of the government or by
the lawlessness or violence of individuals. It has relation to the class of
contempts which, being committed in the fac[e] of a court, imply a purpose
to destroy or impair its authority, to obstruct the transaction of its business,
or to insult or intimidate those charged with the duty of administering the
law. M If the contempt be committed in the face of the court, the offender
may be instantly apprehended and imprisoned, at the discretion of the
judges, without any further proof or examination.
Id., at 307 (emphasis added) (internal quotation marks omitted); see also Pounders v.
Watson, 521 U.S. 982, 987 (1997) (per curiam) (“‘There is no need of evidence or
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assistance of counsel before punishment, because the court has seen the offense.’”)
(quoting Cooke, at 534); Ex parte Savin, 131 U.S. 267, 277 (1889) (“Where the contempt
is committed directly under the eye or within the view of the court, it may proceed ‘upon its
own knowledge of the facts, and punish the offender, without further proof and without
issue or trial in any form[.]’”) (quoting In re Terry, at 309).
In Falana, this Court held when an individual makes a remark in court while the trial
court is physically present, that person cannot avoid a contempt finding simply by alleging
the court did not hear the comment. Falana, at 129. There, the contemnor’s statement
to the victim, i.e., “I’ll be out one day[,]” was made in open court while the judge was on the
bench. Id., at 128. In upholding the contempt conviction, we did not require proof the
court actually heard the contemnor speak the words; we found it sufficient that the
comment was made in the court’s presence, in open court, even though the court did not
hear it. Id., at 129.
In sum, precedent demonstrates this Court and the United States Supreme Court,
with full regard to due process, have consistently held summary contempt is warranted
when the contemptuous conduct takes place in the presence of the court. Thus, the
court so violated is under no obligation to prove it actually witnessed the disturbance.
See, e.g., In re Terry, at 308.
In contrast, the Superior Court here declared, “Our Courts have long required that
the contemptuous conduct actually be observed by the [c]ourt[.]” Moody, at 773 (citation
omitted). The court’s conclusion with respect to a trial court’s actual observation derives
from In re Oliver, 333 U.S. 257 (1948). There, the United States Supreme Court
determined misconduct that took place during secret grand-jury proceedings did not
occur “in open court” or fall within “the narrow category of cases that can be punished as
contempt without notice, hearing and counsel[,]” since the proceedings, which were held
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in secret, carried “no possibility of a demoralization of the court’s authority before the
public.” Id., at 275-76. Concluding punishment for the contemptuous conduct did not
qualify for the exception to due process requirements, the Court noted, “The narrow
exception M includes only charges of misconduct, in open court, in the presence of the
judge, which disturbs the court’s business, where all of the essential elements of the
misconduct are under the eye of the court, [and] are actually observed by the court[.]”
Id., at 275 (emphasis added).
The actually-observed-by-the-court statement was emphasized by the Superior
Court in concluding the requirements of 42 Pa.C.S. § 4132(3) were not established. See
Moody, at 773, 775. Still, the Superior Court acknowledged that “Pennsylvania courts
have departed from the ‘observed by’ or ‘in front of’ requirement for summary hearings of
direct contempt.” Id., at 773. The court went on to say “there is no indication that the
trial judge personally observed [appellees]’ specific actions.” Id., at 774. This is based
on “the record” being confined to the testimony of the court official. However, it is
uncontradicted that court was open and in session, and that the judge was on the bench;
the judge in every courtroom in the country will be facing into that courtroom, not away.
Thus, the judge was facing into the gallery where the fight erupted, facing appellee
Archie, who was holding a sign while screaming in obscene language, and facing toward
Moody, who was running up to assault the witness, with Ivery joining the fight. It is hardly
unreasonable to find this from the factual record — we credit the judge’s statements of
personal observation.
Indeed, the factual recitation by the Superior Court in its opinion cites the record for
all of the above and more, except the direction the judge faced; we shall infer the judge
faced into the courtroom. Not only did the judge necessarily see the fracas, he
repeatedly stated he saw the contumacious conduct himself. He “observed M with [his]
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own eyes” what happened. N.T. Sentencing, 4/13/11, at 11. This is sufficient support
for a finding of direct criminal contempt.
While In re Oliver could be read to infer actual observation by the court is required,
it also could be fairly understood as a mere acknowledgment of the fact that events
occurring in open court take place within the view of the court, i.e., where the misconduct
may be readily observed by the court as fact finder. Regardless, the
actually-observed-by-the-court language does not suggest the trial court is somehow
obligated to prove to itself observation of events that took place in open court; the trial
court would know better than anyone what it did or did not see. Notably, In re Oliver
approved of and relied primarily upon Cooke, wherein the United States Supreme Court
plainly stated, “Where the contempt is committed directly under the eye or within the view
of the court, it may proceed ‘upon its own knowledge of the facts, and punish the offender,
without further proof, and without issue or trial in any form[.]’” Cooke, at 535 (emphasis
added) (quoting In re Terry, at 309). 8 Accordingly, the Superior Court erred in
concluding the summary contempt proceedings below were improper because the trial
court failed to prove to itself it personally observed the events.
In so holding, the Superior Court misapprehended the record and conflated the
concept of something being “in the presence of the court,” with that of it being “personally
observed” by the court. See Moody, at 775 (indicating in-the-presence-of-the-court
requirement was not established because record did not show court personally observed
8 According to Cooke, the “important distinction” regarding whether a contemptuous
event justifies the departure from the traditional view of due process requirements was
simply whether the contempt occurred “in open court,” i.e., “‘under the eye or within the
view of the court,’ or ‘in the face of the court,’ or ‘in facie curiae[.]’” Id., at 535-36.
Subsequent to In re Oliver, the United States Supreme Court has continued to quote
Cooke’s no-need-of-evidence language with approval. See, e.g., Pounders, at 987-88
(“‘There is no need of evidence M before punishment, because the court has seen the
offense.’”) (quoting Cooke, at 534).
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contempt offenses). This Court has recognized misconduct “‘occurs in the presence of
the court if the court itself witnesses the conduct or if the conduct occurs outside the
courtroom but so near thereto that it obstructs the administration of justice.’” Falana, at
129 (emphasis added) (quoting Garrison, at 979). Contempt, therefore, is subject to
summary proceedings not only where it takes place “directly under the eye” of the court —
in the sense that the court is looking directly at it — but also anywhere “within the view of
the court.” See id.; see also Ex parte Savin, at 277 (“[T]he court, at least when in
session, is present in every part of the place set apart for its own use, and for the use of its
officers, jurors, and witnesses: and misbehavior anywhere in such place is misbehavior in
the presence of the court.”).
As we have stated, “Much weight should be given to the trial court’s judgment in
assessing the necessities of a particular situation.” Stevenson, at 393.9 “A trial court’s
finding of contempt will not be disturbed absent an abuse of discretion.” Commonwealth
v. Baker, 766 A.2d 328, 331 (Pa. 2001) (citation omitted). We have also recognized the
long-standing “‘assumption that the court saw everything that went on in open court[,]’”
incident to “‘the need for immediate penal vindication of the dignity of the court[.]’”
Marcone, at 763 (quoting Cooke, at 536). With that said, a trial court has no need to
contend with contemnors concerning whether the court observed conduct that occurred
in open court and severely obstructed the administration of justice. Our law necessarily
assumes observation for the sake of establishing and maintaining order in the courts for
the benefit of all whose rights are protected thereby.
“[W]hen an individual makes a remark in the courtroom while the judge is
physically present, he cannot avoid a conviction for contempt simply because the judge
9 Appellees’ contention that the court was dishonest regarding its observation does not,
therefore, create an issue of fact to be resolved by the appellate courts.
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did not hear him speak the words in question.” Falana, at 129. Certainly then, where
individuals incite or engage in the physical assault of a defendant’s mother in open court,
setting off a brawl in the courtroom and injuring a court officer in the process, those
individuals cannot avoid summary contempt convictions simply by insisting the trial court
itself did not observe the contemptuous conduct that occurred in front of its face. This is
especially true where the trial court finds as a matter of fact that it did observe the conduct
at issue — precisely what occurred in the case sub judice.
The trial court had the inherent power under Article V of the Pennsylvania
Constitution to impose summary punishment for contempt, including confinement, if
deemed necessary. See McMullen, at 849 (citation omitted). Appellees’ physical and
verbal attacks on a witness occurred in open court, caused injury to a court officer,
delayed proceedings for hours, required the immediate attention of police officers and
almost every free deputy sheriff in the courthouse, and necessitated additional
proceedings to address the contemptuous behavior. Based on these circumstances, the
trial court understandably deemed the summary finding of contempt necessary to the
vindication of its dignity and authority. As a means of resolving disagreements, society
has replaced fighting and violence with courts — to allow fights and violence in those
same courtrooms defeats the very justification of the court. Indeed, we would be
hard-pressed to construct a scenario better exemplifying the definition of misbehavior
occurring in the presence of the court, obstructing the administration of justice, and
therefore warranting immediate imprisonment. See 42 Pa.C.S. §§ 4132-4133. Under
the aforementioned well-settled jurisprudence, the trial court acted within its authority in
holding the summary proceeding at issue for appellees’ acts of contempt committed in
open court, and the Superior Court erred in holding otherwise.
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Turning to the Commonwealth’s final issue, i.e., whether a defendant is entitled to
counsel and to call witnesses during summary proceedings for direct criminal contempt,
we conclude without hesitation that the precedent outlined above clearly and sufficiently
demonstrates a direct-criminal-contempt defendant is not entitled to call or
cross-examine witnesses during such proceedings. See Pounders, at 987-88; Cooke, at
534; Ex parte Savin, at 277-78; In re Terry, at 309. Assessment of the right to counsel in
such proceedings, however, necessitates closer review.
In Crawford, with a majority opinion consisting of four paragraphs and minimal
analysis, this Court ruled “the summary conviction for contempt of court of a witness who
was not represented by counsel cannot stand[.]” Crawford, at 54. The majority relied
on Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), where the United States Supreme
Court held, “absent a knowing and intelligent waiver, no person may be imprisoned for
any offense, whether classified as petty, misdemeanor, or felony, unless he was
represented by counsel at his trial,” and this Court’s earlier decision in Commonwealth v.
Abrams, 336 A.2d 308 (Pa. 1975).10 However, the Crawford Court was sharply divided,
with three of the seven justices dissenting on the issue of whether the accused is entitled
to counsel in circumstances where contempt is committed in the presence of the court
and so disrupts the court’s business as to require immediate action to vindicate its
10 In its entirety, Abrams consisted of two paragraphs. The Court merely described the
defendant’s refusal to testify, and the trial court’s subsequent finding of criminal contempt
and imposition of six months imprisonment; in reversing, the Court cited only Argersinger
and Commonwealth v. Bethea, 282 A.2d 246 (Pa. 1971), for the proposition the
uncounseled proceedings “violated due process and render[ed] the adjudication of
contempt null and void.” Abrams, at 309. In Bethea, the Court actually reversed the
adjudications and sentences of two defendants because they did not receive jury trials.
Bethea, at 247. The Court further held the trial court improperly adjudicated and then
immediately sentenced a third defendant for direct criminal contempt, where the
defendant was unrepresented during the proceedings; the trial court had appointed
counsel whom the defendant rejected. Id., at 247-48.
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authority and dignity. The dissenting justices opined collectively that Abrams was
wrongly decided because it read Argersinger too broadly.11 Crawford, at 56 (Pomeroy,
J., dissenting); id., at 59 (Nix, J., dissenting). The dissenters reasoned Argersinger only
concerned criminal trials as they are generally understood; Argersinger was not a
contempt case and did not mention contempt, and contempt cases had always been
treated uniquely under the law. See Crawford, at 56 (Pomeroy, J., dissenting); id., at
60-61 (Nix, J., dissenting). The dissenting justices insisted the mandatory right to
counsel was incompatible with the concept of summary proceedings for direct criminal
contempt, and such a requirement was not the result intended by the United States
Supreme Court. Id., at 61 (Nix, J., dissenting). The dissenters further noted — with
respect to a summary proceeding for direct criminal contempt — the High Court had held
long before Argersinger, “’[t]here is no need of evidence or assistance of counsel before
punishment because the court has seen the offense.’” Crawford, at 57 (quoting Cooke,
267 U.S. at 534) (Pomeroy, J., dissenting)) (emphasis added).
Moreover, since Argersinger, the United States Supreme Court clarified its holding
in that case was limited to instances involving actual imprisonment. See Scott v. Illinois,
440 U.S. 367, 373-74 (1979). In Scott, the Court held “the Sixth and Fourteenth
Amendments to the United States Constitution require only that no indigent criminal
defendant be sentenced to a term of imprisonment unless the State has afforded him the
right to assistance of appointed counsel in his defense.” Id. (emphasis added). The
Court thus clarified “actual imprisonment [is] the line defining the constitutional right to
appointment of counsel.” Id., at 373; see also Argersinger, at 37 (“[A]bsent a knowing
11 As noted by Justice Eagen in his fully joining concurring opinion, the Abrams Court
“interpreted Argersinger as mandating an absolute right of counsel to any criminal
defendant facing the possibility of imprisonment.” Crawford, at 55 (Eagen, J.,
concurring).
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and intelligent waiver, no person may be imprisoned for any offense, whether classified
as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”).
While Crawford and Abrams apply the right to counsel to contempt proceedings,
they also establish that where an individual engages in contumacious conduct in open
court — requiring the court to act immediately to restore order and vindicate its authority,
the court may do so — assistance of counsel need only be secured prior to actual
imprisonment for contempt. Where testimony is required for the court to determine what
happened before it can make a finding of contempt, a different scenario presents itself.
However, the full panoply of due process protections becomes inapposite where the
judge witnesses the contempt in a situation like this one, where the initial finding of direct
criminal contempt occurred during a separate proceeding, prior to a subsequently
scheduled sentencing hearing. And, since the trial court appointed counsel prior to
sentencing in this case, no due process violation arose during the initial summary
proceedings. There is no indication the guilt and sentencing hearings were bifurcated in
this way in Crawford or Abrams, or even in Bethea.12 Thus, Crawford and Abrams are
not only inapplicable here, but their continued vitality is actually undermined by today’s
decision. Accordingly, to the extent Crawford and Abrams may be read to require the
assistance of counsel during an initial summary proceeding where a defendant is found
guilty of direct criminal contempt, prior to separate proceedings where the defendant is
actually sentenced to imprisonment, those cases are expressly disapproved.
Because the Superior Court erroneously determined the summary-contempt
proceedings were improper, it also erred in concluding appellees “should have been
permitted to cross-examine the court crier, and to present their own witnesses, in an
12 Indeed, Bethea expressly states both the adjudication and sentencing of at least one
defendant took place at the same hearing. Id., at 248.
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adversary hearing with full due process protections.” Moody, at 775 (citation omitted).
As we now hold the trial court appropriately conducted summary proceedings and
appellees were sufficiently represented by counsel prior to sentencing, the order of the
Superior Court is reversed.
Order reversed; case remanded for reinstatement of sentences. Jurisdiction
relinquished.
Former Chief Justice Castille and former Justice McCaffery did not participate in
the decision of this case.
Messrs. Justice Baer and Stevens join the opinion.
Mr. Justice Baer files a concurring opinion in which Mr. Justice Stevens joins.
Mr. Chief Justice Saylor files a dissenting opinion in which Madame Justice Todd
joins.
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