Com. v. Parker, J. ( 2017 )

J-S40038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON PARKER :
:
Appellant : No. 956 EDA 2016
Appeal from the Judgment of Sentence February 12, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-MD-0000081-2016
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 25, 2017
Jason Parker appeals from the judgment of sentence entered on
February 12, 2016, in the Court of Common Pleas of Philadelphia County
following his summary conviction of direct criminal contempt.1 Parker
received a sentence of two months, 28 days to five months, 29 days’
incarceration. In this timely appeal, Parker claims there is insufficient
evidence to support his conviction. After a thorough review of the
submissions by the parties, relevant law, and the certified record, we
reverse and vacate the judgment of sentence.
Our standard of review is as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. § 4132(3).
J-S40038-17
[I]n considering an appeal from a contempt order, we
place great reliance on the discretion of the trial judge.
Each court is the exclusive judge of contempts against its
process, and on appeal its actions will be reversed only
when a plain abuse of discretion occurs. In cases of direct
criminal contempt, that is, where the contumacious act is
committed in the presence of the court and disrupts the
administration of justice, an appellate court is confined to
an examination of the record to determine if the facts
support the trial court's decision.
Commonwealth v. Jackson, 367 Pa.Super. 6, 532 A.2d 28,
31-32 (1987)(internal citations omitted); Accord Ricci v. Geary,
447 Pa.Super. 609, 670 A.2d 190, 191 (1996). In making this
examination: “we must evaluate the entire record and consider
all evidence actually received.” Commonwealth v. Falana, 548
Pa. 156, 161, 696 A.2d 126, 128 (1997) quoting
Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256(1986).
A court's power to find an individual in criminal contempt is
conferred by Section 4132 of the Judiciary Code, which provides
in relevant part:
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:
***
(3) The misbehavior of any person in the presence of the
court, thereby obstructing the administration of justice.
42 Pa.C.S.A. § 4132(3). Consequently, to sustain a conviction
for direct criminal contempt under this provision there must be
proof beyond a 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, 554 Pa. 465, 469, 721 A.2d 1972, 1073
(1998); Commonwealth v. Martorano, 387 Pa.Super. 79, 563
A.2d 1193, 1197 (1989), appeal denied 529 Pa. 632, 600 A.2d
952 (1991).
Commonwealth v. Williams, 753 A.2d 856, 861 (Pa. Super. 2000).
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On February 12, 2016, Parker was in court for a Grazier2 hearing.
Parker was seeking to represent himself on appeal in another contempt
matter.3 We quote two relevant portions of that hearing.
The Court: All right. Mr. Parker, let’s go. All right, let’s go, Mr.
Parker.
Parker: Good morning, Your Honor.
The Court: Good morning to you, Mr. Parker.
Parker: (Unintelligible)
(Pause)
The Court: All right. Mr. Parker, let’s go.
Parker: (Unintelligible)
The Court: No. You’re right there, Mr. Parker.
Parker: Here? Okay, we’ll do it right here, Your Honor.
The Court: Okay, Mr. Parker.
Parker: How you doing?
The Court: So you’re here for a PCRA Hearing. You are
representing yourself, right?
Parker: Yes, sir; because counsel is not doing anything.
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2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3
That matter is also before this appellate panel. See Commonwealth v.
Parker, 3318 EDA 2014, J-S40037-17. This related case helps provide
context to the instant matter. Interested parties may refer to that case.
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The Court: All right. I appointed you counsel, right? Mr. Earl
Raynor, right?
Parker: He’s not doing anything. He’s a bad guy. He’s a bad
dude.
The Court: So you’re upset with Mr. Raynor, right?
Parker: Very upset.
The Court: All right. Can you hire your own counsel?
Parker: I’ll do it myself, Your Honor.
The Court: Okay, good. You’ll hire your own counsel.
Now, Mr. Raynor – Mr. Parker.
Parker: Yes, sir.
The Court: It’s come to my attention you were videotaping the
authorities here, and it’s the CJC [Philadelphia Criminal Justice
Center], right? I guess you –
Parker: That’s not true, Your Honor.
The Court: Okay. Well, fine. You cannot videotape here. You
cannot videotape here, and your videotape is ordered, by court
order, confiscated. I order the sheriffs to take the videotaping
equipment that you had, taping out front of the CJC, inside the
CJC. Wherever you may have videotaped, it’s ordered
confiscated.
Parker: I was outside the building, in the waiting room, Your
Honor, in the lobby.
The Court: You cannot do that.
Parker: There’s no signs posted that you can’t use your phone in
the lobby, Your Honor.
The Court: Well, I order it, by court order. This is a court order.
It’s confiscated.
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Now, turn it over to the sheriffs right now.
N.T. Grazier Hearing, 2/12/2016, at 3-5.
The trial court continued questioning Parker about his cell phone and
then changed topics again, which led to this exchange between Parker and
the Court.
The Court: Constitutional statements. I know you’re trying to
get an audience. And so that they[4] know, you’re practicing law
without a license.
Parker: I’m not practicing anything.
The Court: You took money from poor people and –
Parker: That’s a lie.
The Court: -- said you’ll (unintelligible).
Now, you’re facing contempt again. Now, I order you to be
quiet. I will give you - the next statement out of your
mouth will be five months and 29 days.
You have a sentencing coming up in the Court of Common Pleas
where you’re found guilty by jury, of 12 individuals, of practicing
law without a license, false impersonation. You were acting like
a – you took money from poor people. That’s who you took
money from, poor people who gave you their money and you
took them.
And you interfered with the public defender, and I have the
record here, so read it. So there it is.
Now I am finished with you. Your next date for status, and you
must be prepared to go on – and you want to hire your own
____________________________________________
4
This appears to be a reference to the people, who were also present in the
courtroom.
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lawyer, you don’t want Earl Raynor, who I gave to you. Your
next status date, in this room, for status only, for you to file
your paperwork for your PCRA, which is – that’s the – get it out.
You were either drinking on a subway or smoking on a subway.
They stopped you. You had a summary offense. I threw you out
of the CJC. I called down to the room. They postponed and
gave you another year. You were found guilty in absentia. I
waived the $30 fine, or $100 fine. But you filed a PCRA on all
this. Okay. So status for you to file all of your motions will be
on 30 days from today. Today is March - February 12th. Your
date is the 20 – the 11.
Parker: Your Honor, you’re outside of the scope here, Your
Honor, this is not for the smoking on the train, this is for –
The Court: Okay. Fine. I told you –
Parker: When I came (unintelligible).
The Court: No more.
Parker: - for the contempt
The Court: I find you in contempt. Five months and 29
days. Sheriffs take him.
N.T. Grazier Hearing, 2/12/2016, at 6-8 (emphasis added).
The trial court explained, in its Pa.R.A.P. 1925(a) opinion, that Parker
was “told repeatedly by this Court to remain quiet or he would be held in
contempt of court.” Trial Court Opinion, 4/22/2016, at 1. Nonetheless,
Parker, “proceeded to ignore these warnings and continued to speak.” Id.In doing so, the trial court determined,
These statements were also made with the intent to disrupt the
proceedings, as not only were the statement made immediately
after [Parker] was told not to speak. [Parker] had consistently
interrupted this Court during the hearing to offer unnecessary or
untrue information, including insisting his name was “The Wolf,”
and arguing the facts of the case underlying 3318 EDA 2014.
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Finally, the statements made by [Parker] disrupted the
administration of justice as they were made immediately after
this Court warned [Parker] not to speak again. Further, they
were made as this Court was attempting to conclude the
hearing, the statements prolonging the conclusion and holding
up this Court. Therefore, [Parker] was in Contempt when he
made the statements on February 12, 2016.
Id. at 2 (citations to record omitted).
We begin our analysis by noting that whatever transpired in court on
February 12, 2016, it was not a Grazier hearing.5 The trial court made no
attempt to inquire regarding any of the factors listed in Pa.R.Crim.P. 121,
regarding waiver of counsel.6 After Parker indicated he wanted to represent
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5
Despite calling it a PCRA hearing at the opening of the hearing, in its
Pa.R.A.P. 1925(a) opinion, the trial court stated, “On February 12, 2016, the
defendant, Jason Parker, appeared before this Court for a Grazier hearing.”
6
Specifically, Pa.R.Crim.P. 121 states, in relevant part:
(1) The defendant may waive the right to be represented by
counsel.
(2) To ensure that the defendant's waiver of the right to counsel
is knowing, voluntary, and intelligent, the judge or issuing
authority, at a minimum, shall elicit the following information
from the defendant:
(a) that the defendant understands that he or she has the
right to be represented by counsel, and the right to have
free counsel appointed if the defendant is indigent;
(b) that the defendant understands the nature of the
charges against the defendant and the elements of each of
those charges;
(c) that the defendant is aware of the permissible range of
sentences and/or fines for the offenses charged;
(Footnote Continued Next Page)
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himself, the trial court responded, “Okay, good. You’ll hire you own
counsel.” Id. at 4. Then, without further colloquy, the trial court, sua
sponte, moved onto other topics.
When the court informed the courtroom at large that Parker had been
convicted of smoking or drinking on a subway, Parker simply told the trial
court that smoking on the subway had nothing to do with why he was in
court that day and appeared to try to return the conversation to why he
came to court that day. At that point, the trial court found Parker in
contempt.
_______________________
(Footnote Continued)
(d) that the defendant understands that if he or she
waives the right to counsel, the defendant will still be
bound by all the normal rules of procedure and that
counsel would be familiar with these rules;
(e) that the defendant understands that there are possible
defenses to these charges that counsel might be aware of,
and if these defenses are not raised at trial, they may be
lost permanently; and
(f) that the defendant understands that, in addition to
defenses, the defendant has many rights that, if not timely
asserted, may be lost permanently; and that if errors occur
and are not timely objected to, or otherwise timely raised
by the defendant, these errors may be lost permanently.
Pa.R.Crim.P. 121 (1),(2). See also, Commonwealth v. Stossel, 17 A.3d
1286, 1289 (Pa. Super. 2011); Commonwealth v. Robinson, 970 A.2d
455 (Pa. Super. 2009).
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Our review of the certified record leads us to find that the facts do not
support the trial court’s findings. Although the trial court has asserted
Parker “consistently interrupted this Court to offer unnecessary or untrue
information,”7 our review of the record demonstrates it was the trial court
that directed the hearing away from the purpose of the Grazier hearing by
accusing Parker of improperly using his cell phone in the lobby of the
Criminal Justice Center and confiscating the phone.
After confiscating Parker’s phone, the trial court then berated Parker
regarding his recent criminal charges. When the trial court finished that,
and began to close the hearing, Parker seemingly attempted to return the
conversation to the original topic. It was at that time Parker was found to
be in contempt.
The trial court has opined that Parker’s final comments were designed
to disrupt the administration of justice by “prolonging the conclusion and
holding up this court.” We disagree. Because the record reflects that the
trial court failed to take any steps in fulfilling the purpose of a Grazier
hearing, we conclude Parker cannot be held in contempt questioning the
court’s conclusion of the hearing with a reference to an unrelated case that
involved Parker.
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7
Trial Court Opinion at 2.
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We understand the frustration this trial court. However, the record
shows that Parker did not actually obstruct the administration of justice.
Parker attended a hearing expecting a Grazier hearing. Under the facts of
this matter, Parker’s attempt to question the court’s reference to his other
case is not contemptuous behavior, even if the trial court told him not to
speak.
Judgment of sentence reversed. Finding of contempt is vacated.
Judge Dubow joins this memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2017
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