Com. v. Marsh, J.

J-A28011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES T. MARSH
Appellant No. 1689 EDA 2014
Appeal from the Judgment of Sentence May 27, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-MD-0000229-2014
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 13, 2015
Appellant, James T. Marsh, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
conviction for the summary offense of criminal contempt.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issues for our review:
WAS THE FINDING OF CRIMINAL CONTEMPT FOR
VIOLATION OF 42 PA.C.S.A. 4132(1), (2), (3) NOT
SUPPORTED BY SUFFICIENT EVIDENCE SINCE THE
EVIDENCE DID NOT SUPPORT A FINDING THAT
[APPELLANT] KNEW OR ACTED INTENTIONALLY OR
____________________________________________
1
42 Pa.C.S.A. § 4132.
J-A28011-15
WILLFULLY THAT HIS CLIENT WAS NOT ENTITLED TO
WEAR HIS MARINE MILITARY UNIFORM DURING HIS
CRIMINAL TRIAL? WAS THE CONTEMPT FINDING NOT
SUPPORTED BY THE EVIDENCE SINCE [APPELLANT] WAS
THE VICTIM OF HIS CLIENT’S MISREPRESENTATION AND
DECEIT? WAS THE EVIDENCE INSUFFICIENT TO SHOW
[APPELLANT] HAD ANY INTENT TO OBSTRUCT JUSTICE,
ANY INTENT TO DELAY THE TRIAL, ANY INTENT TO
CREATE A MISTRIAL, ANY INTENT TO MISBEHAVE IN THE
PRESENCE OF THE COURT, ANY INTENT TO VIOLATE A
COURT ORDER, AND ANY INTENT TO ACT IN A
DISOBEDIENT FASHION IN OPEN COURT? WAS THE
FINDING OF CONTEMPT AN ABUSE OF DISCRETION? DID
THE EVIDENCE DEMONSTRATE NO WILLFUL OR
INTENTIONAL CONDUCT BY [APPELLANT]?
WAS THE FINDING OF CRIMINAL CONTEMPT FOR
VIOLATION OF 42 PA.C.S.A. 4132(1), (2), (3) AGAINST
THE WEIGHT OF THE EVIDENCE? SHOULD THE FINDING
OF CONTEMPT SHOCK THE CONSCIENCE OF THE COURT?
WAS THE FINDING OF CONTEMPT AN ABUSE OF
DISCRETION?
(Appellant’s Brief at 5-6).
A court’s power to impose a summary punishment for contempt is set
forth in Section 4132 as follows:
§ 4132. Attachment and summary punishment 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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J-A28011-15
(3) The misbehavior of any person in the presence
of the court, thereby obstructing the administration
of justice.
42 Pa.C.S.A. § 4132.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Genece E.
Brinkley, we conclude Appellant’s issues on appeal merit no relief. The trial
court opinion comprehensively discusses and properly disposes of the
questions presented. (See Trial Court Opinion, filed November 5, 2014, at
10-16) (finding: (1) Appellant knew or should have known his
misrepresentations would obstruct administration of justice by causing panel
of selected jurors to be discharged; court asked Appellant multiple times to
define the military status of his client (“Mr. Kennedy”) and each time
Appellant unequivocally answered that Mr. Kennedy was on active duty;
Appellant also repeatedly assured court that he could provide court with Mr.
Kennedy’s active duty papers; Appellant’s insistence and certainty regarding
Mr. Kennedy’s military status persuaded court to allow Mr. Kennedy to wear
his military uniform during jury selection; Appellant knew or should have
known his insistence would influence court’s actions; Appellant also knew his
misrepresentations would significantly disrupt court proceedings because
court warned Appellant that it would have to discharge jury if Appellant was
wrong about Mr. Kennedy’s military status; despite warnings from court,
Appellant continued to misrepresent Mr. Kennedy’s military status causing
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J-A28011-15
significant waste of court’s resources and delaying commencement of Mr.
Kennedy’s trial; therefore, evidence was sufficient to sustain contempt
convictions; (2) Appellant repeatedly assured court that Mr. Kennedy was
on active duty with the military despite Appellant’s uncertainty as to truth of
statements; Appellant continued to make these representations to court
even after court warned Appellant of consequences if Appellant’s assertions
were inaccurate; notwithstanding Appellant’s assurances to court that Mr.
Kennedy was on active duty, Mr. Kennedy testified at contempt hearing that
he and Appellant never discussed Mr. Kennedy’s military status or whether
Mr. Kennedy should wear his uniform to court; Appellant testified at
contempt hearing that he was indifferent to Mr. Kennedy wearing his
uniform to court, and Appellant did not understand true meaning of active
duty; court did not believe testimony that Appellant and Mr. Kennedy never
discussed Appellant’s military status or Mr. Kennedy wearing uniform, and
court found Appellant’s testimony to be patently incredible; instead, court
determined Appellant made misrepresentations about Mr. Kennedy’s military
status to incur benefit for Mr. Kennedy from appearing in court in military
uniform; court concluded Appellant’s actions recklessly or intentionally
misled court; thus, contempt finding did not shock one’s sense of justice and
Appellant’s challenge to weight of evidence fails). Accordingly, we affirm on
the basis of the trial court’s opinion.
Judgment of sentence affirmed.
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J-A28011-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2015
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IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH
.. '
MC-51·M0-0000229·2014 comm. v. Marsh, James T.
Op1n1on NOV' 0 ·5 2014
vs.
Criminal Appeals Unit
llll 111111111111111111 First Judicial District of PA
7219724841
SUPERIOR COURT
JAMES MARSH 1689 EDA 2014
BRINKLEY, J. NOVEMBER 5, 2014
OPINION
Defendant James Marsh appeared before this Court for a contempt hearing on March 20,
2014. This Court found Defendant in contempt and ordered him to pay a $500 fine. Defendant
appealed this sentence to Superior Court and raised the following issues on appeal: (1) whether
there was sufficient evidence to find Defendant in contempt; and (2) whether the finding of
contempt was against the weight of the evidence.
PROCEDURAL IDSTORY AND FACTS
On September 19, 2011, Defendant Marsh appeared before this Court representing his
client, Chal Kennedy, Jr. ("Kennedy"), at a status listing for an upcoming trial. At the hearing,
Kennedy wore a Blue Dress "D" Uniform from the United States Marine Corps. The .
Commonwealth objected to Kennedy wearing the uniform, and Defendant Marsh was instructed
that he would have to provide authorization from the armed forces if Kennedy wished to appear
in court again wearing his uniform. On October 15, 2013, the day scheduled for jury selection in
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Kennedy's trial, Kennedy again wore the uniform to court and the Commonwealth again
objected to it. This Court reminded Defendant Marsh that he was supposed to provide the Court
with permission for Kennedy to be dressed in uniform, and Defendant Marsh stated, "I can get ·
that, Your Honor ... I can have that for you right after lunch." (N.T. 10/15/2013 p. 5)
After Kennedy and his co-defendant were collcquied regarding any offers made by the
Commonwealth and whether they wished to proceed with trial, Defendant Marsh stated that he
had sent a text message to Kennedy's supervisor, Staff Sergeant Brad Jackson (" Jackson") and
Jackson replied, "He should have worn his Charlies or Alphas, but these are Deltas, but I don't
know of any regulations that said he can't. He has been working with me and that's the
uniform." Id. at 20. This Court then reiterated to Defendant Marsh that he needed.to show the
Court the official regulations in writing which stated that Kennedy was allowed to wear the
military uniform while on trial as a criminal defendant. Defendant Marsh assured the Court that
he would provide appropriate documentation. After the Court returned from lunch, Defendant
Marsh cited paragraph 2002 of the Marine Corps Uniform Regulations in support of Kennedy
being able to wear the uniform. According to this patagraph, "Commanders may prescribe Blue
Dress C [sic] as the uniform for the day for specified occasions or duties ... this uniform is
authorized for leave and liberty." Id. at 23-24. In addition, this Court received a fax from
Jackson which read, "I'm writing this letter to give guidance in reference to Corporal Kennedy
wearing his service uniform to court.: There are no rules to m'.y knowledge that say we cannot
wear our service uniform while appearing for a court hearing." Id. at 25.
After the Commonwealth attorney, Nicole Pedicino, Esquire, stated that her co-workers
who ate reservists in the military would not wear their uniform in court because they are in the
reserves, the following exchange took place:
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THE COURT: Well, is [Kennedy] in the reserves?
MS. PEDICINO: I have no idea. He's-
THE COURT: What is his status?
DEFENDANT
MARSH: He's on liberty as of today. He would be working
if he wasn't in here today, Your Honor. He's
active duty.
THE COURT: No, that doesn't answer my question. He's active
duty?
DEFENDANT
MARSH: That's correct, Your Honor.
THE COURT: He's not a reservist?
DEFENDANT
MARSH: He's not.
Id. at 25-26. Defendant Marsh further stated that "[Kennedy has] never not been on active duty",
and that "he could get [Kennedy's] orders that say [Kennedy] is active duty." Id. at 27. Shortly
thereafter, in response to this Court's question whether Kennedy was still working in the
Marines, Defendant Marsh stated, "That's correct, Your Honor ... on active orders." Defendant
Marsh further claimed, "We can get those orders if we take a recess, Your Honor." Id. at 29.
After Ms. Pedicino expressed doubt that Kennedy would still be on active duty after being
incarcerated for roughly a year and asked this Court whether the Marine Corps initiated a
separation action against Kennedy during that time period, Defendant Marsh stated, "That was
withdrawn that action against him ... and he was put back in active duty." Id. at 29-30. Based on
Defendant Marsh's repeated assurances, this Court stated that Kennedy could wear the uniform
during jury selection. Id .. at 39-40.
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After this Court returned from a brief recess, Ms. Pedicino stated that her office had been
in contact with Jackson: Ms. Pedicino stated that Jackson told her office that Kennedy was not
on active duty, but was a reservist who had been working for Jackson for only three weeks. In
response; Defendant Marsh asserted, "We can bring [Kennedy's] active orders as I suggested
tomorrow to you.,, Id. at 41-42. After this Court stated it had allowed Kennedy to remain in his
uniform "because I accepted it when you said that you knew he had active duty papers,"
Defendant Marsh again stated, "Okay, and I can do that tomorrow." Id. at 43. This Court then
stated, "I'm concerned because I believe that there is some ... sort of fraud on the Court because
I've been very specific about what I required and I've been very specific about the reason that I
required it." Id. This Court further stated, "See my concern is this: This panel has seen him in
uniform. I've given them the cautionary instruction. I don't want to waste a day ... and have to
release this whole panel tomorrow because I'm sure that that's what the Commonwealth is going
to ask to do .. .I don't want to waste time here. I don't want to waste this day. So where are the
papers because they should have been brought anyway. I had asked about this last time." Id. at
45. Defendant Marsh then stated, "we'll bring the documents in tomorrow at 8:30", and assured
the Court, "He'll have them." Id. at 50, 62. This Court asked Defendant Marsh if he would allow
the Court to ask Kennedy directly whether he was on active duty, and Defendant Marsh stated,
"Not when he's going to produce the documents as you requested per your order tomorrow." Id.
at63-64.
On October 16, 2013, the next day, Defendant Marsh failed to bring in any
documentation showing that Kennedy was on active duty. Defendant Marsh stated that he was
unable to do so because he had a personal matter to attend to the night before and did not have
the time to obtain any documentation. (N.T. 10/16/2013 p. 4). This Court then stated that it
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would have to discharge any jury members who had seen Kennedy in his uniform in order to
cure the prejudice against the Commonwealth. Id. at 5. After a short recess, this Court read from
a fax it received directly from Staff Sergeant Jackson. According to Jackson, "Corporal
Kennedy has been volunteering (emphasis added) his support to my office ... His assistance
would set him up to apply (emphasis added) for active duty program known as EAD and also
give him points towards his promotion. This program allows the reservist to become active duty
recruiters ... Corporal Kennedy from my knowledge at this time is a reservist who can be
activated to be on active duty to help with the needs of the Marine Corps." Jackson further
stated, "While working with Corporal Kennedy he asked my advice in regards to wearing his
uniform to appear in court. When I answered the question, which was based on my experience in
active duty, I told him we are. In the past I have worn my uniform for court in regards to traffic
violations. I wasn't fully aware of Corporal Kennedy's charges he was facing when I presented
the information to him." Id. at 13.:. 14. Based upon this fax, this Court stated that the unequivocal
representations Defendant Marsh had made to this Court that Kennedy was on active duty were
incorrect. This Court further stated that, consequently, it would schedule a contempt hearing for
Defendant Marsh after Kennedy's trial was complete. Id. at 14.
On March 20, 2014, this Court held a contempt hearing. The Commonwealth was
represented at the hearing by Ms. Pedicino while Defendant Marsh was represented by Stephen
Older, Esquire. The defense called Kennedy as its sole witness. Kennedy testified that he had
appeared in court on October 15, 2013 in his dress blue Delta uniform. Kennedy stated that he
had worn his uniform to court that day because he was told that he could wear it, and because he
planned on going to work after he appeared in court that day. Kennedy testified that he
volunteered at the Marine Corps Recruiting Center on Broad Street and Cecil B. Moore Avenue.
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Kennedy testified that Defendant Marsh never told him to wear the uniform in court, nor did he
· ever discuss wearing the uniform in court with Defendant Marsh. Kennedy stated that he had
never told Defendant Marsh that he was on active duty, but he did tell Defendant Marsh he was
checking into a new unit sometime between October 17, 2013 to October 23, 2013. Kennedy
stated that he told Defendant Marsh this on October 15, 2013, and he never had any discussions
with Defendant Marsh regarding his status in the military prior to that date. Id. at 3-6, 14-15.
This Court then asked Kennedy to clarify exactly what he meant when he stated that he would be
checking into a new unit. Kennedy stated that he had received orders to begin active duty
training as a reservist. Kennedy stated that he was not on active duty with the Marines on
October 15, 2013 or October 16, 2013. Id. at 18-20.
Mr. Older argued that Defendant Marsh lacked the necessary intent to be held in
contempt. Mr. Older stated that Defendant Marsh believed that Kennedy was on active duty
based on conversations he had with Kennedy and Kennedy's stepfather. Mr. Older stated that it
was only when Defendant Marsh received Kennedy's orders on the night of October 15, 2013,
that he knew that Kennedy was not on active duty. Mr. Older stated that Defendant Marsh did
not lie to this Court about Kennedy's status because he believed that Kennedy was active. Mr.
Older argued that a lie required the declarant to know that the statement made was false, and
Defendant Marsh had no knowledge or reason to believe that Kennedy was not on active duty.
Id. at 23-26. Mr. Older further stated there was no evidence to show that Defendant Marsh had
made a willful misrepresentation to this Court that he knew to be false because Defendant Marsh
had reason to believe that Kennedy was on active duty. Id. at 34. Mr. Older further argued that
Defendant Marsh would not have continued to assert that Kennedy was on active duty if he knew
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that to be false and that he would be unable to produce any documentation showing that Kennedy
was on active duty. Id. at 37-38.
Ms. Pedicino, on behalf of the Commonwealth, stated that Kennedy had been
volunteering for the Marine Corps for only three weeks prior to October 15, 2013. Ms. Pedicino
further stated that common sense would cause a reasonable person to question whether someone
who had recently been in jail for ten months awaiting trial on multiple felony charges would be
on.active dutywith the military. Ms. Pedicino argued that Defendant Marsh had an ethical
obligation to speak the truth to this Court, and yet he continued to insist that Kennedy was on
active duty even though he did not know that. Ms. Pedicino stated in candor to the Court that
Defendant Marsh could have told the Court that he needed to confirm that Kennedy was on
active duty prior to making any representations to the Court, but instead Defendant Marsh
continually lied to the Court and stated that he knew Kennedy was on active duty. Id. at 44-46.
Defendant Marsh then spoke on his own behalf. Defendant Marsh stated that Kennedy
was his only source of information and that he never made any other representations. Defendant
Marsh stated that he was zealous in his representation of Kennedy, and both he and Kennedy's
· stepfather thought that Kennedy was on active duty. Defendant Marsh further stated that he did
not know what active duty meant and that it was not his job to find out what it meant. Defendant
Marsh stated that he did not want Kennedy to wear the uniform throughout the trial, and did not
care if Kennedy wore the uniform. Defendant Marsh stated that he believed his client when
Kennedy told him he was on active duty, and that he had an ethical duty to believe his client or
withdraw from the case. Defendant Marsh claimed there was no benefit to Kennedy wearing his
uniform during jury selection and he believed that Kennedy was allowed to wear it based on his
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conversation with Jackson. Id. at 52-55. This Court then found Defendant Marsh in contempt and
deferred sentencing. Id. at 59-60.
On May 27, 2014, this Court held a sentencing hearing for Defendant Marsh. Defendant
Marsh was represented at sentencing by Samuel Stretton, Esquire, while the Commonwealth was
represented by Ms. Pedicino. Mr. Stretton asked this Court to reconsider the contempt finding.
Mr; Stretton argued that, because Defendant Marsh was never in the military, he did not
understand the distinction between being a reservist and being on active duty. Mr. Stretton
stated that Defendant Marsh believed that Kennedy was on active duty, and that he was allowed
to wear his uniform ifhe was on active duty. (N.T. Sentencing 5/27/2014 p. 3, 8). Mr. Stretton
stated that Defendant Marsh had a reasonable belief that Kennedy was allowed to wear the
uniform, and he did not mislead this Court in any way. Mr. Stretton argued that contempt
required either intentional misconduct or grossly reckless conduct, and that the mistake
Defendant Marsh made did not rise to the level of either. Mr. Stretton claimed that Defendant
Marsh did not intend to influence the jury by having Kennedy in his uniform, but merely
believed it was permissible for Kennedy to be in uniform. Mr. Stretton stated that Defendant
Marsh had a good reputation in Philadelphia and had always been respectful in court. Id. at 10-
14.
Ms. Pedicino, on behalf of the Commonwealth, stated that whether Defendant Marsh had
good character or reputation was no reason to reconsider the finding of contempt. Ms. Pedicino
argued that this Court had conducted an extensive hearing on this matter, that it had been fully
litigated, and that the evidence was clear that Defendant Marsh was guilty of contempt. Id. at 14.
This Court denied Defendant Marsh's motion for reconsideration. This Court stated that
Kennedy previously had appeared in court and testified that he never misrepresented his military
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status to Defendant Marsh. This Court further stated that Defendant Marsh continually insisted
that Kennedy was on active duty, and that Defendant Marsh never told Jackson that Kennedy
was standing trial for felony criminal charges. This Court noted that the Commonwealth had
objected to Kennedy wearing his uniform atprevious listings, and Defendant Marsh was told
repeatedly that he needed to prove to the Court that Kennedy was allowed to wear the uniform.
Id. at 14~21.
Mr. Stretton then asked this Court to impose a fine of one hundred dollars. Mr. Stretton
argued that Defendant Marsh believed that Kennedy had a right to wear his military uniform and,
although this belief proved wrong, it should not warrant Defendant Marsh having to pay for the
costs of the courtroom. Mr. Stretton stated that a substantial fine or restitution would be
financially burdensome to Defendant Marsh. In addition, Mr. Stretton stated that Defendant
Marsh still would have to answer to the disciplinary board of the Pennsylvania Bar because he
wasfound in contempt. Id. at 23-25.
Defendant Marsh then spoke on his own behalf. Defendant Marsh apologized for his
actions and requested that this Court impose a fine of five hundred dollars. Defendant Marsh
stated this matter had caused him to reconsider his behavior in court and that he would be more
careful in the future as to what he represented to the court. Defendant Marsh stated that Kennedy
still owed him approximately sixteen-thousand dollars on this case. Defendant Marsh further
stated that he was a sole-practitioner and was responsible for all tasks in his office. Defendant
Marsh stated he usually worked seven days a week and twelve hours a day. Defendant Marsh
claimed that Kennedy came to him on October 15, 2013 in uniform, Defendant Marsh stated he
asked Kennedy if he was active duty and Kennedy said he was. Defendant Marsh stated that by
the time he realized that Kennedy was not active duty it was too late to correct his error.
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Defendant Marsh stated that he now understood that he should tell the court if he was unsure of
an answer and that he would do things differently in the future. This Court then imposed a fine of
five hundred dollars. Id. at 26-29.
On June 3, 2014, Defendant Marsh filed a Notice of Appeal to Superior Court through
counsel. On June 30, 2014, after receiving all the notes of testimony, this Court ordered defense
counsel to file a Concise Statement of Errors pursuant to Pa.RAP. l 925(b), and defense counsel
did so on July 16, 2014.
ISSUES
I. WHETHER THERE WAS SUFFICIENT EVIDENCE TO FIND
DEFENDANT IN CONTEMPT.
II. WHETHER THE FINDING OF .CONTEMPT WAS AGAINST THE
WEIGHT OF THE EVIDENCE.
DISCUSSION
I. fflE EVIDENCE WAS SUFFICIENT TO FIND DEFENDANT IN
CONTEMPT.
'The evidence presented at the contempt hearing was sufficient to find Defendant in
contempt. A review of the sufficiency of the evidence to support a conviction requires that the
evidence be reviewed in the light most favorable to the Commonwealth as verdict winner.
Commonwealth v. Walter, 2004 PA Super. 147, 849 A.2d 265, 267 (2004) (citing
Co'mmonwealth v. Rose, 463 Pa. Super. 264, 344 A.2d 824, 825 (1975)). The Commonwealth is
also entitled to all favorable inferences which may be drawn from the evidence. Commonwealth
v. Sanchez, 2006 Pa. LEXIS 1833 (2006) (citing Commonwealth v. Collins, 550 Pa. 46, 50, 703
A.2d 418, 420 (1997)). The evidence put forth by the Commonwealth will be considered
sufficient if it establishes each material element of the crime beyond a reasonable doubt, even if
by wholly circumstantial evidence. Commonwealth v. Dargan, 2006 PA Super. 74, 897 A.2d
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496, 503 (2006) (citing Commonwealth v. DiStefano, 2001 PA Super. 238, 782 A.2d 574, 582
(2001 )).
When determining whether the evidence is sufficient to support a guilty verdict, the
appellate court must examine the entire trial record and consider all of the evidence actually
received. Jg. However, the trier of fact is entitled to believe all, part or none of the evidence
received at trial and the appellate court cannot substitute its judgment for that of the fact-finder.
Commonwealth v. Frisbie, 2006 PA Super. 430, 889 A.2d 1271, 1274 (2006) (citing DiStefano,
782 A.2d at 574); Commonwealth v. Kim, 2005 PA Super. 383, 888 A.2d 847, 851 (2005)
(citing Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003)). The facts and
circumstances established by the Commonwealth need not eliminate any possibility of the
defendant's innocence; rather, any doubt is to be resolved by the fact-finder unless the evidence
is so weak and inconclusive that, as a matter of law, no probability of fact could be concluded.
Commonwealth V; Lambert, 2002 PA Super. 82, 795 A.2d 1010 (2002) (citing Commonwealth
v. Cassidv, 447 Pa. Super. 192, 194, 668 A.2d 1143, 1144 (1995)).
When reviewing a contempt conviction, much reliance is given to the discretion of the
trial judge. Accordingly, the appellate court is confined to a determination of whether the facts
support the trial court's decision. Conunonwealth v. Debose, 2003 PA Super 316, 833 A.2d 147,
149 (2003}(citing Williams v. Williams, 452 Pa. Super. 52, 681 A.2d 181, 183 (1996)). To find
direct criminal contempt there must be proof beyond a reasonable doubt of misconduct in the
presence of the court, committed with the intent to obstruct justice, that obstructs the
administration of justice. Stewart v. Foxworth, 2013 PA Super 91, 65 A.3d 468, 472 (2013)
(citing Himes v. Himes, 833 A.2d 1124, 1125-26 (Pa.Super. 2003)). Conduct constitutes an
obstruction of the administration of justice if it significarttly disrupts the proceedings. Yoskowitz
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v. Yazdanfar, 2006 PA Super 120, 900 A.2d 900, 904 (2006) (citing Commonwealth v.
Martorano, 387 Pa.Super. 79, 563 A.2d 1193, 1197 (1989)). Wrongful intent will be found where
the contemnor knows or reasonably should be aware that his conduct is wrongful. Stewart, 65
A.3d at 472.
In the case at bar, Defendant Marsh knew or should have known that his
misrepresentations to this Court would, and did indeed, obstruct the administration of justice by
causing a panel of eight selected jurors to be discharged. Defendant Marsh was asked multiple
times to define Kennedy's status with the military. He was asked specifically whether he was
sure that Kennedy was on active duty. In each instance Defendant Marsh responded
unequivocally that Kennedy was on active duty and assured this Court that he would be able to
bring Kennedy's active duty papers to court the next day. Even after being warned by this Court
that the jury would have to he discharged if these representations turned out to be false,
Defendant Marsh persisted in unequivocally stating that Kennedy was on active duty. As this
Court noted, Defendant Marsh's insistence and certitude in representing that Kennedy was on
active duty persuaded this Court to allow Kennedy to wear his uniform during jury selection. At
the contempt hearing, this Court stated, "I believed [Defendant Marsh]. I believed everything
thathe said. He was so insistent. He was so sure. He was so insistent that [Kennedy] was on
active duty that I said, okay." (N.T. 3/20/2014 p. 51). Defendant Marsh deliberately
misrepresented to this Court his client's status with the military. On the basis of his insistence
and certainty in making these misrepresentations, this Court allowed Kennedy to wear his
uniform during jury selection. Defendant Marsh knew or should have known that his insistence
and certainty would influence this Court in deciding whether to allow Kennedy to wear his
uniform, Furthermore, Defendant Marsh knew that his misrepresentations would significantly
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disrupt the proceedings after this Court warned him that the jury would have to be discharged if
Defendant Marsh was making false statements. Nevertheless, Defendant Marsh persisted in
misrepresenting his knowledge about Kennedy's status with the military. This Court would have
continued its reliance on Defendant Marsh's assurances if it had not conducted its own inquiry
and asked for clarification from Staff Sergeant Jackson. As a result of Defendant Marsh's
misrepresentations, all of the jury members who had seen Kennedy in his uniform had to be
discharged, and the administration of justice was obstructed. This was a significant waste of the
Court's resources and time, and delayed the commencement of Kennedy's trial. The evidence,
therefore, was sufficient to find Defendant Marsh in contempt.
II, m.E FINDING OF CONTEMPT WAS NOT AGAINST THE WEIGHT OF
THE EVIDENCE.
The finding of contempt in this case was not against the weight of the evidence. Under
Pennsylvania law, a weight of the evidence claim concedes that the evidence was sufficient to
sustain the verdict. Commonwealth v. Smith, 2004 PA Super. 77, 853 A.2d 1020, 1028 (2004)
(citing Commonwealth v. Bennett, 2003 PA Super. 212, 827 A.2d 469 (2003)). The weight of
the evidence is "exclusively for the finder of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses." Commonwealth v. Rice, 2006 PA
Super: 143, 902 A.2d 542, 546 (2006) (quoting Commonwealth v. Champney, 574 Pa. 435, 832
A.2d 403, 408 (2003)). In addition, "where the trial court has ruled on the weight claim below,
an appellate court's role is not to consider the underlying question of whether the verdict is
against the weight of the evidence, ... rather, appellate review is limited to whether the trial court
palpably abused its discretion in ruling on the weight claim." Commonwealth v. Kim, 2005 PA
Super. 383, 888 A.2d 847, 851 (2005) (quoting Champney, 832 A.2d at 408). An appellate court
cannot substitute its judgment for that of the fact finder; therefore, a verdict will be reversed only
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in the extraordinary situation where the verdict is "so contrary to the evidence as to shock one's
sense of justice" and the award of a new trial is imperative so that right may be given another
opportunity to prevail, Commonwealth v. Tharp; 574 Pa. 202, 830 A.2d 519, 528 (2003) (citing
Conunonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1189, (1994)); Conunonwealth v. Smith,
580 Pa. 392, 861 A.2d 892, 896 (2005) ( citing Conunonwealth v. Drumheller, 570 Pa. 117, 808
A.2d 893, 908 (2002)).
In the case at bar, the finding of contempt was not against the weight of the evidence. As
previously discussed, defendant repeatedly and consistently assured this Court that Kennedy was
on active duty with the military. Defendant Marsh made these representations to this Court
despite his alleged uncertainty about their truthfulness, and he persisted in misrepresenting to this
Court his knowledge regarding Kennedy's status with the military even after being warned by
this Court of the consequences if his misrepresentations proved to be inaccurate. At the
contempt hearing, Kennedy testified that he and Defendant Marsh never discussed whether he
was on active duty nor did they specifically discuss whether he should wear his military uniform
to court. Notwithstanding all of his assurances during jury selection that he believed Kennedy
was on active duty based upon representations made by Kennedy and his stepfather, Defendant
Marsh later claimed that he actually did not know what the term "active duty" meant. He further
stated that he was indifferent to Kennedy wearing his uniform during court proceedings. The
Court found this testimony to be patently incredible. This Court did not believe that Defendant
Marsh and Kennedy never discussed the uniform and Kennedy's military status. Furthermore,
this Court was incredulous that Defendant Marsh later claimed that he did not know what "active
duty" meant or that he did not care about Kennedy's ability to wear his uniform. This is
particularly incredulous in light of Defendant Marsh's repeated and adamant affirmations that
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Kennedy was on active duty and his insistence that Kennedy should be permitted to wear his
uniform. Obviously, Defendant Marsh believed his client would derive some benefit in the eyes
ofthe jury by appearing in court in a military uniform. The Court, serving as factfinder, chose to
believe none of the evidence offered by Defendant Marsh at the contempt hearing, and instead
found that Defendant Marsh had recklessly or intentionally misled the Court. In light of this
Court's credibility determinations, it cannot be said that the contempt finding was so contrary to
the evidence so as to shock one's sense of justice. Therefore, the finding of contempt was not
against the weightof the evidence and this Court's decision should not be disturbed on appeal.
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CONCLUSION
After a review of the applicable rules of evidence, statutes, case law and testimony, this
Court committed no error. The evidence was sufficient to find Defendant Marsh in contempt.
The Court's finding of contempt was not against the weight of the evidence. Therefore, this
Court's decision should be upheld on appeal.
BY THE COURT:
I~ 1.
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