Com. v. Nater, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAIME NATER, : No. 790 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, February 15, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. MC-51-MD-0000628-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 10, 2015
Jaime Nater appeals from the judgment of sentence imposed on
February 15, 2013, after he was held in contempt by the Honorable Karen Y.
Simmons of the Philadelphia Municipal Court. We vacate.
The relevant facts and procedural history are as follows. On July 29,
2011, appellant was found guilty of possessing a small amount of marijuana,
35 P.S. § 780-113(a)(31). Judge Simmons deferred sentencing with the
understanding that appellant would receive no further penalty contingent
upon his completion of 50 hours of community service. On December 17,
2012, appellant appeared for court, and Judge Simmons learned that he had
only completed 30 hours of community service. Appellant was instructed to
complete the remaining 20 hours by January 9, 2013, and was informed that
* Former Justice specially assigned to the Superior Court.
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if he did not do so, he would be found in contempt. (Notes of testimony,
2/15/13 at 4-7.)
On January 9, 2013, the proceedings were continued because
Judge Simmons was attending a funeral. On February 15, 2013, the next
listing, appellant informed the court that he had not completed any
additional community service. (Id. at 8.) Defense counsel stated that he
had no objection to sentencing appellant to a 30-day sentence.
Judge Simmons imposed a 15 to 30-day sentence for possessing marijuana
and then proceeded to conduct a contempt hearing. (Id. at 8-10.)
Appellant was found in contempt and was sentenced to 2½ to 5 months’
incarceration, to be served concurrently with his sentence for possessing
marijuana. (Id. at 14.)
On February 25, 2013, appellant filed a “motion to reconsider and
vacate contempt order and sentence: motion to reconsider sentence on
possession of marijuana.” (Docket #2.) Judge Simmons denied the petition
the same day. Appellant’s notice of appeal was filed on March 7, 2013.
Herein, appellant presents the following issues for our review:
1. Was not the evidence insufficient to convict
appellant of criminal contempt, insofar as
appellant’s “contemptuous” behavior of not
completing community service hours does not
satisfy the criteria for a finding of contempt
under any section of 42 Pa.C.S. § 4137(a), and
the sentence rendered was illegal under that
statute?
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2. Did not appellant’s contempt conviction and
sentence violate both the Pennsylvania and
Federal Double Jeopardy Clauses, where
appellant was convicted and sentenced for
criminal contempt because he failed to
complete community service as part of a
deferred sentencing condition on a charge of
possession of marijuana, but appellant had
already been sentenced to the maximum
allowable penalty because of this very same
behavior on that same possession charge?
Appellant’s brief at 4.
In his first argument, appellant asserts the municipal court did not
specify under which subsection of the contempt statute she was holding
appellant in contempt. Appellant points out the criminal docket shows that
he was charged and convicted under 42 Pa.C.S.A. § 4137(a)(2), “[f]ailure of
a person to obey lawful process in the nature of a subpoena issued by a
magisterial district judge.” Appellant goes on to argue that the municipal
court erred as a matter of law in convicting him of contempt as his behavior
did not fit within any criteria required for a finding of contempt under any
subsection of the contempt statute and he was not in violation of any court
order. Finally, appellant contends, assuming arguendo the charge and
conviction were properly filed, his sentence was illegal. (Appellant’s brief at
9-10.)
Preliminarily, we must determine if this appeal is proper. We may
raise issues regarding jurisdiction sua sponte. Commonwealth v.
Gentry, 101 A.3d 813, 816 (Pa.Super. 2014). As appellant points out, the
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docket indicates that the municipal court erroneously issued contempt
sanctions pursuant to Section 4137(a)(2), a provision relating to the
contempt powers of magisterial courts. (See docket #1.) In relevant part,
Section 4137 declares:
§ 4137. Contempt powers of magisterial
district judges
(a) General rule.--A magisterial district judge
shall have the power to issue attachments and
impose summary punishments for criminal
contempts of a magisterial district judge court
in the following cases:
(1) Misbehavior of any person in the
presence of the court, thereby
obstructing the administration of
justice.
(2) Failure of a person to obey lawful
process in the nature of a
subpoena issued by a magisterial
district judge.
(3) Failure to comply with an order of
a magisterial district judge
directing a defendant in a criminal
proceeding to compensate the
victim of the criminal conduct for
the damage or injury sustained by
the victim.
(4) Failure to comply with an order of
a magisterial district judge
directing a defendant in a criminal
proceeding to pay fines and costs
in accordance with an installment
payment order.
(5) Violation of an order issued
pursuant to 23 Pa.C.S.A. § 6110
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(relating to emergency relief by
minor judiciary).
....
(c) Punishment.--Punishment for contempt
specified in subsection (a)(1) or (3) may be a
fine of not more than $100 or imprisonment
for not more than 30 days, or both.
Punishment for contempt specified in
subsection (a)(2) shall be a fine of not more
than $100. Failure to pay within a reasonable
time could result in imprisonment for not more
than ten days. Punishment for contempt
specified in subsection (a)(5) shall be in
accordance with that specified in 23 Pa.C.S.A.
§ 6144(b) (relating to contempt for violation of
order or agreement). Punishment for
contempt in subsection (a)(4) would be
imprisonment for not more than 90 days.
(d) Procedure.--A magisterial district judge shall
have the power to issue an attachment by
means of a warrant and to conduct a hearing
prior to the imposition of punishment for
contempt. Any punishment imposed by a
magisterial district judge for contempt shall be
automatically stayed for a period of ten days
from the date of imposition of the punishment
during which time an appeal of the action of
the magisterial district judge may be filed with
the court of common pleas of the judicial
district. The stay shall remain in effect
pending the disposition of an appeal. Upon
the filing of the appeal, the court of
common pleas shall hear the matter
de novo. On appeal, the accused shall have
the right to be notified of the accusation and
shall have a reasonable time to make a
defense. The defendant shall not have a right
to a jury trial on appeal. . . .
42 Pa.C.S.A. § 4137 (emphasis added).
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Clearly, the above statute does not contemplate an appeal to this
court directly, and the municipal court’s citing of Section 4137 was in error.
Nevertheless, we have jurisdiction to entertain this appeal as the
Philadelphia Municipal Court shares concurrent jurisdiction with the Court of
Common Pleas of Philadelphia County pursuant to 42 Pa.C.S.A. § 1123. A
defendant is permitted to appeal a municipal court judge’s contempt order
directly to this court as a matter of right. See 42 Pa.C.S.A. § 1123(a.1)
(“Appeal from contempt citation or nuisance order. There shall be a
right to appeal to the Superior Court of a contempt citation issued by a
municipal court judge, but the appeal shall be limited to a review of the
record.”). Accordingly, we have appellate jurisdiction over the municipal
court’s contempt order even though that court mistakenly invoked
Section 4137 as the basis of its sanction. We note that in its Rule 1925(a)
opinion, the court properly refers to its power to impose a summary
punishment for contempt as set forth in 42 Pa.C.S.A. § 4132.1 (Trial court
opinion, 11/20/15 at 2-3.)
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“Direct contempt is obstruction by conduct, word or deed in the presence
of the court and is a summary offense.” Commonwealth v. Brown, 622
A.2d 946, 948 (Pa.Super. 1993). “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.” Commonwealth v. Haigh, 874
A.2d 1174, 1176 (Pa.Super. 2005), appeal denied, 887 A.2d 1245 (Pa.
2005) (emphasis is original). Here, the court did not announce whether it
had found appellant in direct or indirect criminal contempt. We believe, as
does the Commonwealth and appellant, that the court was imposing
punishment for indirect criminal contempt.
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Appellant’s first argument challenges the sufficiency of the evidence to
support his conviction for criminal contempt. In conducting a sufficiency of
the evidence review, we view all of the evidence admitted, even improperly
admitted evidence. Commonwealth v. Watley, 81 A.3d 108, 113
(Pa.Super. 2013) (en banc). We consider such evidence in a light most
favorable to the Commonwealth as the verdict winner, drawing all
reasonable inferences from the evidence in favor of the Commonwealth. Id.When evidence exists to allow the fact-finder to determine beyond a
reasonable doubt each element of the crimes charged, the sufficiency claim
will fail. Id.Here, the municipal court found appellant guilty of contempt of court.
The power to impose summary punishment for contempt is inherent in all
courts, but is limited in this Commonwealth by 42 Pa.C.S.A. § 4132.
Pursuant to Section 4132, the court has the power to issue attachments and
to inflict summary punishments for contempt in the following circumstances:
§ 4132. Attachment and summary
punishments for contempts
The power of the several courts of this
Commonwealth to issue attachments and to impose
summary punishments for contempts of court shall
be restricted to the following cases:
(1) The official misconduct of the officers of
such courts respectively.
(2) Disobedience or neglect by officers,
parties, jurors or witnesses of or to the
lawful process of the court.
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(3) The misbehavior of any person in the
presence of the court, thereby
obstructing the administration of justice.
42 Pa.C.S.A. § 4132.
If a court finds a person in contempt under Section 4132, it is
considered criminal rather than civil contempt. Stewart v. Foxworth, 65
A.3d 468, 472 (Pa.Super. 2013). Instantly, it appears the municipal court
found appellant to have violated Section 4132(2), which permits punishment
for “[d]isobedience or neglect by officers, parties, jurors or witnesses of or
to the lawful process of the court.” Contempt under Section 4132(2) can be
sustained only if the following four elements are present:
(1) The court’s order or decree 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;
(2) The contemnor must have had notice of
the specific order or decree;
(3) The act constituting the violation must
have been volitional; and
(4) The contemnor must have acted with
wrongful intent.
Further, unless the evidence establishes an
intentional disobedience or an intentional neglect of
the lawful process of the court, no contempt has
been proven. Moreover, a conviction for criminal
contempt requires proof beyond a reasonable doubt.
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Commonwealth v. Kolansky, 800 A.2d 937, 939-940 (Pa.Super. 2002)
(quotation, quotation marks, and citations omitted).
Our review of the notes of testimony indicates appellant was
sentenced for both his original possessory narcotics offense and for his
failure to complete the court-ordered community service. The municipal
court found appellant’s failure to complete the community service was
contemptuous conduct. We are constrained to disagree with that
determination.
As reflected by the record, on July 29, 2011, Judge Simmons found
appellant guilty of possession of a small amount of marijuana and sentenced
him to no further penalty, pending completion of 50 hours of community
service. When the municipal court ordered community service, it was a
conditional order. Clearly, if appellant completed the community service, he
would not be sentenced to any further penalty. If he did not complete the
community service, then the court would be free to sentence him to the
penalty prescribed by statute for possession of a small amount of marijuana.
On February 15, 2013, the municipal court, fully aware that appellant did not
complete the 50 hours of community service, sentenced appellant to 15 to
30 days on the possession charge. The court then proceeded to hold a
contempt hearing for appellant’s failure to complete the 50 hours of
community service. We believe this was in error.
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There was no order given by the municipal court at any time
prohibiting appellant from engaging in any conduct. The order to complete
community service was a conditional order related to the sentence the court
would ultimately provide on the possession of a small amount of marijuana
charge. Appellant failed to complete the community service which resulted
in him being sentenced to 15 to 30 days’ incarceration. The municipal court
had no authority to separately sentence appellant for his failure to complete
the community service. As a result, the sentence appellant received of 2½
to 5 months’ incarceration for contempt is vacated. Consequently, we have
no need to address appellant’s remaining arguments.
Judgment of sentence vacated; jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
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