Commonwealth v. Garrison

356 element, doubt as to one beyond reasonable

burden must accused Commonwealth acquitted. Young, 258, 102, 111, 262 (1974); Pa. 317 A.2d Commonwealth 456 Roscioli, 59, 62, 309 Pa. A.2d Conklin, 160 A.2d Commonwealth v. Winship, also In re (1960). See U.S. (1970). original.) (Emphasis L.Ed.2d of sentence and judgment would reverse the discharge appellant. JJ., O’BRIEN, join opinion this POMEROY of reversal. support A.2d971 Pennsylvania

COMMONWEALTH Floyd GARRISON. SAGEL, Esquire, Appellant. Appeal of Bruce Supreme Pennsylvania. Court of Nov. 1977.

Argued 5,May Decided Assn, Phila., Defender Benjamin Lerner, Defender, Packel, Chief, Div., John W. Appeals Tischler, S. Harry Asst. Defenders, Public appellant. for F. Emmett Dist. Fitzpatrick, Atty., Goldblatt, Steven H. Law, Dist. Deputy Atty. Michael Stiles, R. Asst. Dist. Chief, Div., Atty., Appeals Randolph Goldman, Asst. Dist. for Atty., appellee. EAGEN, J.,

Before C. O’BRIEN, and ROBERTS, POM- EROY, MANDERINO, NIX and JJ.

OPINION ROBERTS, Justice.

While a of representing defendant accused rape, statutory rape, and of corruption minor, appellant Sagel, Bruce contempt. held in criminal summarily was twice

Esquire, McDermott, court, T. fined Judge appellant James The trial Appellant and the second. for the first offense $50 $200 supported by convictions are not contempt that his contends sen- We reversed of agree, judgments evidence.1 sufficient discharge appellant.2 tence and for the Defender Association attorney an Appellant, Garrison Floyd as counsel for acted defense Philadelphia, 1976 to March 1976. March a trial held from the that had sought prove raped Garrison Commonwealth woman with whom had Garrison daughter year-old trial, the times first during day Several living. been misconduct, not him but did hold appellant court accused the witness mother took complainant’s until contempt time, requested that attorney that the district At stand. stand: order Garrison to Would the court instruct the de- “MR. CUNNINGHAM: fendant to stand? been sworn? Has this witness

THE COURT: Yes, sir. MR. CUNNINGHAM: well. Have the defendant stand. Very THE COURT: rose). (The defendant EXAMINATION

DIRECT MR. CUNNINGHAM: BY now in this man standing . . know this

Q. you .do courtroom, left? my pursuant Appellate appeal Jurisdiction Court We this

1. hear II, 31, 1970, 202(5), July 17 P.S. P.L. art. § Act of Act 211.202(5) (Supp.1977). § appellant’s disposition, we do not consider assertion of our view summary criminal denied him due convictions for both sufficiently specify (1) contempt charge not process did because conviction; (2) underlying permit first review of the facts underlying the statement of the facts denied the court’s conviction; long delay (3) impermissibly occurred between first imposition contempt; contemptuous alleged conduct and second hearing, (4) or other elements of were without notice the convictions in, (5) deeply process; trial court was so embroiled due by, alleged it misconduct could personally offended impose impartially the convictions. MR. is Judge, SAGEL: absurd. That is absurd. Yes. A. absurd,

MR. SAGEL: That is and I object. THE COURT: You’re to continue going me, shouting you? aren’t

MR. I was SAGEL: not Honor. shouting, your THE COURT: Don’t tell me what you were doing. That not the proper way an interpose objection, by sug- to be gesting something absurd. Will follow the you rules or not?

(No response)

THE Are COURT: you going follow the rules or not? Yes, MR. SAGEL: sir.

THE COURT: do suggest you so.

MR. IMay SAGEL: be heard on my objection? No,

THE COURT: be seated.

MR. SAGEL: client be May my seated as well?

THE you COURT: Did hear what I said?

MR. May my well, SAGEL: client be seated as or is he to flagellated front of the jury? that, THE COURT: What was sir? stand,

MR. SAGEL: Is he to just as if they don’t know other, each then to be identified to the Jury?

THE jurors COURT: Take the out. (The was removed from Jury the Courtroom at P.M.) 2:19 Court, THE COURT: Come to the bar of the sir. You’re Court, in contempt of this sir. You are fined Take $200. him into We will recess. custody.

MR. I please Honor, SAGEL: be heard May on your record?

THE sir, COURT: You will not be heard me in fashion you choose to address me. You conducted your- in a self most unprofessional manner. You have been here all sitting morning shouting at this Court. I have all regard your zealousness. You are entitled to struggle client, on behalf of if your you choose. But we have certain rules here are you apparently familiar with. so, objection interpose, you have an do Court

If you not that. You are it, after you quiet on rules your flagellated Court that client being the suggest sir, in contempt, the You are jury. and conse- before fined. Take him into custody. have been you quently custody. P.M.).” Recessed at 2:20 was taken into (Counsel (Emphasis supplied) between the court there was obvious friction

Although the did the next two during days, appellant of trial day until third contempt again appellant hold was Henry, cross-examining Mr. attorney, a district when of this cross-examination subject investigator. defense thought witness attorney an interview district complainant. Appellant sought with the conducted had had conducted by Joseph the interview been out that point the Defender Associa- attorney of Block, Esquire, another tion: took place, This conversation how HENRY:

“MR. take; five seconds? did it long minutes; I suppose twenty fifteen guess maybe IA. minutes. min- twenty were out there you You said

MR. HENRY: before on direct examination just minutes and utes —ten the jury— tell you didn’t Honor, I think he’s mistaken— your No SAGEL:

MR. an objection. Do have you COURT: THE objection. I have an MR. SAGEL: It is COURT: overruled. THE He’s Mr. said that. mistaken. Block MR. SAGEL: case, I’ll withdraw that. If that’s HENRY: MR. Thank you. MR. SAGEL: Sagel.” Mr. setting, The sun is COURT:

THE the court day, excusing jury, after the end of At for these statements.3 contempt summarily held day, explicitly hearing stated that at the end of the the court 3. At formed basis of the the text above forth in the remarks set opinion again Although the court in its stated conviction. second citations, contempt the court opinion support In its concluded: warnings

“That counsel and instruction persisted despite . . . contempt cannot be read less than overzealous- were “the immediate cause of the that these remarks citation,” justify attempted noting also the convictions it it comments,” “argumentive at least three instances of had overlooked appellant objected interrogation three instances where of witness- byes the court and two instances of “remarks sarcastic in nature.” “argumentive purportedly The first comment” occurred at sidebar conference: “MR. That’s not it. SAGEL: your objection. Objection I’ll THE COURT: . . . overrule overruled. Judge, may say thing? MR. SAGEL: one more Objection overruled. THE COURT: Attorney’s statement, If I understand the District MR. SAGEL: say, say going going to to if someone what the mother is had— THE COURT: she’s Objection overruled.” (End conference) of side bar following: is the The second such comment further, you pursue you “THE ... If want to that COURT: questions. specific ask if she remembers should MR. her But if she doesn’t recall what was said— SAGEL: me, argue just questions. THE COURT: Don’t with ask If she remember, say doesn’t she can it.” following: The third incident is the May question proposed by “MR. SAGEL: the witness answer the Attorney? the District answering anything. stopped He wasn’t from THE COURT: your interrupted, MR. He was Honor. He started to SAGEL: interrupted. was answer. THE I believe he Sit down.” COURT: improper by appel- of these instances demonstrates conduct None most, trial, they during lant. At show that at certain times testimony import appellant misunderstood the substance of or the replies to his statements. the court’s times, court, by as the trial At three different noted so, interrogation objected to the court’s of witnesses. To do course, See, Myma, right. g., e. Commonwealth v. was his (1924) (questioning by proper only 123A. 486 of witnesses instance, bounds). appellant’s objection within certain In each was if respectfully example three entered. One cited the trial point. court will serve to demonstrate this May respectfully object question. “MR. I to his Honor’s SAGEL: You are overruled.” THE COURT: objections properly any These could not serve as the basis for contempt. conviction of allegedly The two sarcastic remarks are as follows: a is a in all who gross immaturity trial disrupts ness to this individual shout permit or it. To indulge practice while Court, anger or outbursts of indulge epicene a down or jury arcane dance with mating some performs he to give to license childish effron- simply audience is was deliberate contempt, We his conduct believe tery. We of trial. orderly process obstructed fact designed not to only disrupt his believe to.present the trial effort Court, but to obstruct an Judge, object to “MR. I that. SAGEL: This cross-examination. It’s overruled. Except THE COURT: case, your in the that’s not fact Honor. MR. SAGEL: THE COURT: Overruled.” Objection. HENRY: “MR. question? I ask a MR. SAGEL: Can About what? MR. HENRY: Yes, about what? THE COURT: applied Judge, I that the rules that to me assume MR. SAGEL: apply well, correct, Attorney as is that sir? District Yes, they you Do find some fault with that? do. THE COURT: No, just object Attorney— District SAGEL: would MR. objecting are what? You THE COURT: objection, stated the reason should be on the SAGEL: To MR. record. Yes. THE COURT: to, object your what I Honor.” MR. SAGEL: That’s appear Appellant’s sarcastic. In the second ex- comments do not appellant. attributable to change, would seem sarcasm purported in the instances trial court find no misconduct We Thus, may sought have that the trial court to the extent overlook. imply it were connected the one which that these incidents day, contempt the appellant the third connection must be in on held rejected. Likewise, may that the trial court have to the extent appellant for which it held sought that the second incident to indicate provocations appellant, contempt of the climax of series in rejected. Compare Buckley, In Re 10 implication must also be 121, 237, (1973) Cal.Rptr. 514 P.2d 1201 with In re 110 Cal.3d 924, (1974). Carrow, Cal.Rptr. Cal.App.3d 601 115 alleged opinion other in its referred to misconduct trial court The basis of the remarks which formed the after the which occurred contempt. has also cited for The Commonwealth conviction second alleged parts to of of the record demonstrate incidents to other may by appellant. engaged none these in We consider of misconduct they the references of court are irrelevant because references. controversy. occurred after the events in conduct which concern cannot be considered because of Commonwealth The references avoid issues and inferences otherwise beyond of scope More, conduct, the rules. we believe his in particularly of the light warnings, a deliberate to many attempt poison the record with his conduct as to so ultimately vitiate proceedings.”4

Courts have unquestionably power inherent to punish willful which misconduct obstructs a fair and trial. orderly Martorano, 66, 464 Pa. 346 A.2d 22 (1975); Common Patterson, v. wealth (1973); accord, Pa. 308 A.2d 90 Wilson, United States v. 421 U.S. 95 S.Ct. (1975);

L.Ed.2d 186 ABA on for Project Standards Criminal Justice, Standards Relating Function the Trial 6.3, 7.1 6.5(h), Draft, Judge (Approved 1972). This power §§ includes the to authority con impose summary criminal v. tempt. Commonwealth 459 Pa. Mayberry, A.2d 86 Case, 276, 152 (1974); Snyder’s Pa. A. 33 United Wilson, supra. States

“The court has inherent to power punish any in to protect rights order defendant interests public by assuring the administration shall justice of criminal not be thwarted. The trial judge and, cite power has the if necessary, punish summarily who, court, in in presence his anyone open ob- willfully structs course criminal proceedings.” purport rely alleged the trial court not on did these instances of misconduct. filing Appellant, argument, after briefs and oral submitted a criticizing delaying filing to this letter Court the trial court for of its opinion support appellant of Garrison’s convictions until after had officially appeal Superior filed an for Garrison Court. The responded sought present Commonwealth this letter and new grounds denying emphatically relief. We condemn attempts, Appellate parties’ both violation of the Rules Proce- dure, inject arguments 2501(a); not of record. Pa.R.A.P. cf. Jasper, (1976) (appellate Commonwealth Pa. A.2d 395 may record); consider facts not of Commonwealth Thomas, (1976) (same); 465 Pa. A.2d 847 Commonwealth v. (1974) Young, (same). 317 A.2d 258 366 Justice, Project for Criminal

ABA on Standards Standards Judge to the Function of the Trial 7.1 Relating (Approved § Commonwealth Draft, 1972); accord, Patterson, v. supra, Proffitt, v. United States 94; at at 498 Pa. 308 A.2d 452 1124, 1128 denied, 419 (3rd 1974), Cir. cert. 95 F.2d U.S. 320, 42 277 (1974). L.Ed.2d S.Ct. however, its a court uphold authority,

When acting should first consider power use least possible must contempt imposing such as civil before less severe remedies Martorano, Unit- summary contempt. supra; criminal States, Wilson, v. v. United supra; Shillitani ed States 384 Project 16 622 ABA 86 L.Ed.2d U.S. S.Ct. Justice, to the Relating for Criminal Standards on Standards Draft, 1972). Judge (Approved of the Trial 6.3 Function § resort to criminal sanctions after he only “The should judge determines, reason, civil would be remedy for good States, United Shillitani n.9, supra at 371 inappropriate.” Shillitani principle n.9. Following 86 S.Ct. 1536 Standards, courts have reversed appellate the ABA contempt criminal where a caution- summary for convictions or would have restored order jury instruction to the ary see United behavior, ill effects of counsel’s negated Oliver, ex (7th 1972); rel. Robson States 470 F.2d 10 Cir. Carrow, re (1974), In Cal.Rptr. Cal.App.3d contempt criminal would have nonsummary civil or where Marra, States v. United purpose, court’s trial served some other effective (2d 1973), where Cir. F.2d McConnell, re available, see U.S. sanction (1962) (trial using court erred in 1288, 8 L.Ed.2d where did not criminal counsel contempt of summary power court); see disobey generally out threat order carry Fisher, (4th (trial United States 1973) 477 F.2d 300 Cir. them); Project ABA lawyers by censuring control may Justice, Standards Relating for Criminal on Standards Draft, 1972) (Approved Trial 6.5 Judge Function § available). sanctions (listing criminal power impose summary only

available “such conduct as created an threat to open the orderly procedure of the court and such flagrant defiance of the person presence and of the judge that, before the public if not instantly and suppressed punished, demoralization of the court’s authority will follow.” Clark, Jessup 1068, (3rd 490 1973) F.2d Cir. (quota- States, Cooke v. United omitted); accord, tion marks 517, 536, 390, 394-95, U.S. 45 S.Ct. 767 (1925); L.Ed. Marra, United States v. supra Only 1201. in such circum- a stances court may subject punishment contemner the procedural protections without otherwise accorded the criminally accused. Commonwealth,

In this the power of courts to inflict summary contempts carefully limited. The Act of June 16, 1836, P.L. (1962) 17 P.S. § provides: §

“The of the power several courts of this commonwealth to . inflict summary punishments for contempts of court shall be restricted to cases, the following to-wit:

“I. To the official misconduct of the officers of such respectively; courts To officers,

“II. disobedience or neglect by parties, or witnesses of or to jurors the lawful of process court; of

“HI. To misbehavior any person the presence court, thereby obstructing administration justice.”5 Likewise, Congress of the United States has restricted the power impose summary of the federal contempt. courts to criminal Wilson, See United States v. 421 U.S. 95 S.Ct. 44 L.Ed.2d McConnell, 370 U.S. 82 S.Ct. 8 L.Ed.2d (1962). (1969) provides: § U.S.C. power “A punish by court the United States shall have fine or discretion, imprisonment, authority, at its such of its and other, as— none “(1) any person presence Misbehavior its or so near thereto justice; as to obstruct the administration “(2) transactions; Misbehavior of of its officers in their official “(3) writ, order, process, Disobedience resistance its lawful decree, rule, or command.” By 42(a), contempt power may F.R.Crim.Pro. this be exercised sum- marily. Because the federal statute is identical all material re- designed particular these subsections is to reach a

Each of of conduct. type

A. Johnson, (1976) In re 359 A.2d 739 we I. That subsection scope described subsection compel courts ... their officers “permits duties. For exam- their ministerial properly perform must ple, process, reporters sheriffs must serve testimony prothonotaries record transcribe must . . receive, and file documents. . date Subsection the court to the misconduct of of punish authorizes functions to administration day day necessary of justice.” 741; 556, accord, at Pa. 359 A.2d Cammer v.

Id. 467 at 456, States, 399, 405, 459, 76 350 U.S. 100 L.Ed. United S.Ct. subject (1956). punish 474 A not an “officer” lawyer Cammer v. provision. ment under this United by contempt 460-01; 407-08, accord, at States, 76 Bloom v. supra at 206, 1477, 1484, 194, 20 L.Ed.2d 522 Illinois, 391 88 S.Ct. U.S. 156, Brown, In re 147 (1968) (dictum); U.S.App.D.C. 454 999, (1971). 1003 F.2d

B. II, Under subsection orders, witnesses must must decrees obey

“parties jurors present must themselves subpoenaed, when appear must be a formal order directed to a called. There when persons, but the refusal group person specific presence.” in the court’s need not occur comply 556, at Johnson, 467 Pa. 359 A.2d at 741 supra, In re contempt A for violation of (dictum). conviction if the order or decree was only can sustained order no “definite, clear, uncertainty” and left doubt or specific whom it was addressed of the person the mind statute, Pennsylvania spects this looks Court guidance interpreting 17 P.S. See § federal decisions 199, (1977); Washington, 470 368 v. Pa. A.2d 263 Commonwealth (1976). Washington, 466 Pa. 353 A.2d 806 v. Commonwealth

369 prohibited. conduct Richmond Black Police Officers v. City Richmond, Va., (4th 548 1977); F.2d 129 Cir. United (7th Joyce, 1974); States F.2d Cir. Brown, n.49, supra, U.S.App.D.C. 454 F.2d at 1008 n.49. “The long-standing rule in salutary contempt cases is ambiguities and omissions in orders redound to the of the person benefit with charged Ford v. contempt.” Kammerer, (3rd 1971); accord, F.2d Cir. United Industries, v. Christie States 465 F.2d (3rd 1972). Cir. Compare Industries, United v. Christie States supra (injunc- tion gave fair warning prohibition of sale of specified Kammerer, with Ford v. product) supra (contempt reversed because court order contained “no ex- prohibitory language addressed” to the plicitly appellant’s act) Rubin, and In re (3rd F.2d 104 1967) (no Cir. violation of court order question where existed whether the appellant’s fell conduct prohibition within of interference with certain property).

Contempt under II subsection is justified if the only contemner had notice of the specific decree, order or East Cain Township Carter, 440 Pa. 269 A.2d 703 Gaston, Commonwealth v. (1975) 333 A.2d 779 (plurality opinion); accord, Finney Arkansas Board of Corrections, (8th 505 F.2d 1974); Rubin, Cir. re (3rd 378 F.2d 104 1967); Cir. see v. Wash Commonwealth 199, 470 ington, (1977), Pa. 368 A.2d 263 the act constituting volitional, violation was Commonwealth v. Washington, 199, 470 Pa. 368 (1977); accord, A.2d 263 United States v. Seale, 345, (7th 1972), 461 F.2d 368 Cir. and the contemner acted with wrongful intent. Commonwealth v. Washington, 506, accord, 466 353 A.2d Pa. 806 Pennsylvania v. 542, Local International Union of Operating 552 Engineers, 498, (3rd F.2d 510 1977); Williams, Cir. In re 949, 509 F.2d (2d 1975); Brown, 960 Cir. In re supra, this Court has adopted standard intent in the prevailing federal or courts that contemner “knows should reasonably that his aware conduct is wrongful.” Commonwealth v. 265; 470 at Washington, supra, 203, accord, Pa. 368 A.2d at v. Commonwealth Washington, supra, 508, 466 Pa. at 353 370 Marx, v. 874, (4th 807; 553 F.2d 876 United States

A.2d at 542, 510; v. Local United at supra 1977); Pennsylvania Cir. Oliver, United States v. 13; v. ex rel. Robson States supra Seale, for Criminal Project ABA on Standards see supra; the Trial to the Function of Justice, Relating Standards Draft, power has 1972) (judge (Approved 7.1 Judge § Draft, obstructions) 7.2(i) (Approved willful and § punish con- contemptuous” “willfully available for 1972) (contempt duct). orders, of court willful violations convictions for

Contempt have been where proceeding, upheld obstructing judicial hearing. at a See appear as directed attorney an failed Unit 1977); (1st Lespier, v. F.2d 624 Cir. United States 558 Realty Marx, v. First National v. supra; Douglas ed States 409, (1976); compare 543 F.2d 894 U.S.App.D.C. Corp., 177 930, Niblack, F.2d cert. U.S.App.D.C. (1973) 38 L.Ed.2d denied, 414 U.S. warnings disregard explicit demonstrated (willfulness v. Wash with Commonwealth noncompliance) and previous (no miscon (1977) willful 199, 368 A.2d 263 470 Pa. ington, knew that judge attorney where to appear duct in failure did not show and record engagement conflicting had appearance) notice of expected received attorney v. Washington, 353 A.2d 806 Commonwealth late caused appearance reversed where (1976) (contempt alarm). upheld courts have also Appellate to set by neglect dis where a party willfully imposed convictions Eichhorst, 544 F.2d United States injunction, an obeyed Fiore, 470 F.2d 1149 (3rd Mitchell v. 1976); (7th Cir. Brennan, Fiore v. 411 U.S. sub nom. cert. denied 1972), Cir. decree, (1973), a consent L.Ed.2d 399 938, 93 S.Ct. Barnette, (5th 1977), cert. F.2d 187 Cir. United States (1977), 54 L.Ed.2d denied, 98 S.Ct. 434 U.S. v. Quade, United States court orders. See variety of a prohibit order (trucker violated 1977) Cir. (8th 563 F.2d Mitchell, 556 F.2d United States shipments); certain ing ordered (defendant supply refused to 1977) (6th Cir. 371 States, 781 United 518 F.2d exemplar); Mazzetti voice

371 (10th 1975) Cir. (photographer violated court rule against in certain picture taking parts courthouse); Brown, In re 147 supra, n.24, at 161 U.S.App.D.C. 454 F.2d at 1004 n.24 (attempt by disbarred to undertake attorney legal represen tation) (dictum); Corporation DeVilliers, Atlas 447 F.2d (10th 799 1971), denied, 933, Cir. cert. 405 939, 92 U.S. S.Ct. (1972) (debtor’s 30 L.Ed.2d 809 attempt levy block upon execution); v. Martin, (2d United States 525 F.2d 703 Cir. 1975), denied, 1035, cert. 570, 423 96 U.S. S.Ct. 46 L.Ed.2d (1975) (witness 410 refused to obey court order to answer prosecutor’s question). Williams, But see In re supra (con tempt reversed where witness’s defiance of court order was not an intentional obstruction proceedings).

C. misconduct Finally, in or near occurring the courtroom falls III, under “grants subsection which power court will ensure lawsuits in a heard manner conducive just resolution of the orderly issues presented.” Johnson, re 467 Pa. at supra, 359 A.2d at 741. Trial courts normally punish allegedly contemptuous behavior of trial counsel under this provision its federal analogue. Johnson, See Commonwealth v. supra; McMillan Inc., v. Mountain Racing, Laurel 356 A.2d 742 v. Local Pennsylvania supra; United States ex Oliver, supra; rel. Robson v. cf. Haefner, Commonwealth v. Pa. (1977) A.2d 686 (defendant); Tenenbaum v. Caplan, (1973) (witness); Pa. A.2d 428 Common Patterson, (defendants); wealth v. supra Williams, In re Abascal, (witness); United supra States v. (9th F.2d 752 denied, Cir.), cert. U.S. 45 L.Ed.2d (1975) (spectator); Proffitt, United States supra (de fendant). III,

Subsection like its federal counterpart, 401(1), requires proof U.S.C. reasonable beyond § doubt misconduct, (1) (2) court, in the presence (3) commit ted with intent obstruct proceedings, (4) which ob the administration justice. Johnson, structs supra, 372 Seale, United States v. 742; at 359 A.2d at

467 Pa. 366-67; on Standards for Crimi Project at see ABA supra of Justice, to the Function the Trial Relating nal Standards Draft, 1972). No 6.3, 6.5, 7.1, 7.2 Judge (Approved §§ misconduct has been contemptuous definition of satisfactory that misconduct is best definition is Perhaps the developed. the role of the actor. that is to inappropriate behavior Seale, v. III, United States in Part see cases cited supra; if his behavior is in misconduct attorney engages infra. An Dellinger, In re for truth. to hinder the search calculated United v. States (7th 1972); Cir. see F.2d 400 461 Schiffer, denied, 1965), Cir. cert. 384 U.S. (6th 351 F.2d (1966) (contempt upheld 1914, 16 L.Ed.2d 1017 86 S.Ct. pressure ruling court into attorney attempted where a being govern court of tool of accusing favorably by if of the court presence occurs in the ment). Misconduct or if the conduct occurs witnesses the conduct itself court it so near thereto obstructs the courtroom but outside Wilson, v. United States justice. the administration United n.6; n.6, at 1806 at 315 S.Ct. U.S. supra, Seale, wrongful A acts with States contemner supra. be aware that his reasonably if “knows or should intent he Seale, United States at supra is wrongful.” conduct II). An obstruction subsection standard for (same judi significant disruption a justice administration Johnson, re In on supra; Project ABA See proceedings. cial Justice, Relating for Criminal Standards Standards Draft, 1972). Judge (Approved 6.5 of the Trial § Function actual, imminent prejudice is a showing is required What of the court’s authori preservation proceeding to a fair Johnson, re In where counsel’s (no contempt supra ty. signal shared prosecutor judge to jury statement Seale, supra United States v. disruption); caused no system or even probable; not be remote “must danger 370. This at Little, In re 553, 555, 404 U.S. imperil.” immediately it must accord, re 659, 660, 30 L.Ed.2d 708 92 S.Ct. McConnell, supra failed reversed where (contempt attorney order); United States disobey out threat carry Seale, supra at

Courts require high likelihood imminent disrup tion because a lesser standard would deter vigorous court room advocacy. Dellinger, at supra 398. “It is also essential to a fair of justice administration that lawyers be able make honest good-faith efforts to present their client’s McConnell, cases.” In re supra, at U.S. 1292. In Case, Bloom Discipline (1966), this A.2d Court stated that under the Canons of Professional Responsibility “ ‘The owes lawyer “entire devotion interest

client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and abili- to the end that ty,” nothing be taken or withheld from him, law, save the rules of No legally applied. fear of judicial disfavor or public should unpopularity restrain ”’ from discharge him full of his . . . duty. 196, Id. 423 Pa. at 223 A.2d at (emphasis 714 in original). Thus, id., that remarks are injudicious, an affront court, or dignity sensibility of the States, Offutt v. United 11, 11, accord, 348 U.S. 75 S.Ct. 99 L.Ed. (1954); 11 Brown v. States, 148, United 356 622, U.S. 78 2 S.Ct. L.Ed.2d 589 (1958); Seale, United 369; States v. supra Johnson, at In re 560, 467 supra, 743, Pa. at 359 A.2d at even disrespectful or insulting, Oliver, United States ex rel. Robson v. at supra 14; not, In re Dellinger, more, at will supra without justify conviction for summary criminal contempt.

“The ‘heat of courtroom debate’ may prompt statements which are ill-considered and might later regretted. be In Hallinan, 71 Re Cal.2d 81 Cal.Rptr. 459 P.2d 255 (1969). Substantial freedom of expression should be toler- ated in this area since are ‘[J]u/lges supposed to be men of fortitude, able thrive a hardy climate.’ v. Craig 367, 376, 67 Harney, 1249, 1255, U.S. S.Ct. 91 L.Ed. 1546.” 400; accord,

In Dellinger, supra Johnson, re at supra, 467 Pa. at 359 A.2d at Only in an atmosphere where counsel feels secure actively and zealously present- ing his client’s cause can fair and thorough proceeding to be vocifer- right persistent, have a “Attorneys assured. contentious, even to the ous, imposing, point appear- re obnoxious, in their client’s behalf.” acting when ing at 400. Dellinger, supra

II whether sufficient evidence exists examining Before convictions, we must determine which subsec to sustain upon imposing the court relied each tion of 17 P.S. § this because the must make determination conviction. We statutory either provision specify trial court failed This or in its opinion. it the convictions imposed the time criminally of due for a problem process, raises a omission him. charges against fair notice of is entitled to accused (1974); Mayberry, Pa. 327 A.2d Commonwealth Taylor Hayes, accord, 418 U.S. Brannon, F.2d 1242 United States

L.Ed.2d Criminal 1977); Project ABA on Standards for (5th Cir. Function of the Trial Justice, Relating Standards Draft, the court 1972). If did (Approved 7.4 Judge § enable him charges notice sufficient give process due would argument response, an present v. Taylor the to reverse convictions. See this require Court not charges the specify Because the did Hayes, supra. determine search the record to we must appellant, against for the convictions authority the formed which subsection said to have understood reasonably can appellant and if under that subsection. See Com charged that he had been Africa, A.2d monwealth opinion). (1976) (plurality I because have acted under subsection court could not Cammer attorneys. not extend to does provision Brown, States, In re if Even attor- supra; supra.

United when held in appellant, that provision, subject were neys by object- discretion exercising professional contempt, therefore was not He a line ol cross-examination. ing n re subsection I. See In duty ministerial under a performing Johnson, supra.

When imposing the first contempt, the court could not acting have been under subsection II because appellant had violated any not order or ruling of the Thus, court.6 only possible statutory for the authority first conviction was subsection III. We therefore will consider legality first conviction on only the basis of that provision. conviction, imposing second the court could have acted under either subsection II or subsection III because had violated a appellant allegedly ruling the court. At close of trial, the third day the court held short hearing at which it convicted appellant of the second con- At that tempt. hearing, court stated that it was fining appellant because he had refused “to acquiesce in the rules the court conduct your bordering absolutely unprofessional.” At other times during the hearing, court again referred to appellant’s alleged violation of the rules of the court and his alleged misconduct. From these comments, we cannot determine whether the court relied subsection II or upon subsection III. The court’s reference argues 6. The appellant’s Commonwealth that one indication of mis disregard behavior was his of a court order. The record does not appellant ruling. show that violated a court The court had overruled appellant’s objection and directed him be seated. The record does appellant seat, disclose whether took his but it is clear that he was not held in for failure to sit. The record does appellant acquiesced ruling show that in the court’s that the defend question defendant, having ant stand. His ordered, was whether the as arisen face, ruling could now sit. clearly On its the court’s did not specifically prohibit question. this See Richmond Black Police Richmond, Va., City (4th 1977); Officers v. 548 F.2d Cir. (7th Joyce, 1974). Therefore, United States v. 498 F.2d 592 Cir. any ruling cannot be said to have violated of the court. Kammerer, (3rd 1971) See Ford 450 F.2d (contempt Cir. violation prohib of court order reversed because order contained “no itory language explicitly act); appellant’s addressed” to the Rubin, (3rd 1967)(contempt 378 F.2d 104 Cir. ques reversed where appellant’s tion existed whether the prohibiting conduct fell within court’s order property); Finney interference with certain v. Arkansas Corrections, (8th (no 1974) Board of 505 F.2d Cir. opinion only “strongly implied” of court order where court’s that performed); specific (5th Joyce, act must cf. In re 506 F.2d 1975)(no obey Cir. failure to “request court order where court LaMarre, conduct); (6th ed” certain F.2d 758 -59 Cir. (same). 1974) of the court suggests in the rules acquiesce a to to refusal mind, II in but the references court had subsection that the III that subsection formed the basis indicate to misconduct the second conviction. the court once more stated that opinion, appellant its In court, to of the but the clear obey rulings had refused misbehavior: The purported was on appellant’s emphasis “continuous, with conduct of a appellant court charged nature,” to “overzealousness that a disrupts referred abusive to attempted had “shout trial,” that asserted down court,” “epicene anger” an outburst and unleashed the effrontery.” The court concluded that in “childish engaged trial,” orderly process “obstructed conduct appellant’s to the Court” and “obstruct “designed disrupt to was to the record attempt poison deliberate and was “a trial” vitiate ultimately proceedings.” so as with his conduct III, viewed which Thus, that the court subsection it appears obstructing justice, the administration misconduct reaches authority for the second contempt source statutory as as for the first.” as well conviction this conclusion. compel Ap- other considerations Several in charged believed that he had been both apparently pellant III, argument the primary subsection under contempts not cause an obstruction of his conduct did brief was that his to cause such that he lacked intent and proceedings brief Moreover, the Commonwealth its did obstruction. To the contrary, assumption. appellant’s challenge Commonwealth, the relevant subsec- specify which failed that the relevant subsection to believe tion, appeared also III, the court for its argument was subsection short, did not In the court disruption. quell acted con- authority impose of its statutory source specify court was but indi- ambiguous language tempt, III, subsection upon appellant apparently it relied cated subsection, under that charged had been that he believed not alert this Court did the Commonwealth acquiesce authority appeared statutory proper circumstances, to test the assumption. these appellant’s convictions under II would subsection reward the obscurity of the trial court and the Commonwealth while subjecting to review under a provision he did not reasonably believe was at issue. Perhaps most importantly, because an offense under II subsection contains different elements from III, those subsection we would deprive appellant of due if process we sustained the contempt convictions under subsection II when the trial court did not give appellant charges notice of under that provision. By reviewing the III, second conviction under subsection we avoid the risk of such a violation of process. due

Therefore, both of appellant’s convictions must be tested according 2041(111). standards of 17 P.S. §

Ill With the mind, standards of subsection III in we do not believe that appellant’s statement triggering the first con- citation tempt was misconduct punishable under subsection III. Appellant had to objected the court’s direction that the defendant stand to be by identified the mother. The court overruled the objection stated, “be seated.” The de- fendant rose and was identified by the complainant’s moth- er. then Appellant asked whether his client could also be seated, and inquired, “is he be flagellated in front of the jury?” requested appellant repeat his com- ment, to which appellant “Is he replied, just stand, as if other, don’t they know each then to be identified to the jury?” Although appellant rephrased his remark in unemo- terms, tional the court dismissed jury held appellant in contempt.

Appellant engaged misconduct under subsection III if his only expression, “is he be in front of flagellated jury?” exceeded the bounds of zealous advocacy. Johnson, supra, defense counsel asserted in closing argument court and the district attorney employed system and, when signals, asked by the court how long his be, summation would “I responded, don’t know how I long will judge, speak long will as as We held necessary.” punishable statements were misconduct under that these Case, supra, this III. In Bloom Court Discipline subsection a conviction for criminal where counsel reverséd as objected disposition the court’s proceedings had court, a fact asserted because we disputed unfair and In say that the statements were misconduct. could not Inc., counsel, Racing, v. Mountain Laurel supra, McMillan hear that the court “will no more com- when admonished “I will under an ultimatum like ment,” operate not replied, statement not This Court held that counsel’s that.” obstructing the administration of justice. misconduct have reached the same result on com- jurisdictions Other Oliver, ex rel. facts. In United States Robson parable of involving charges in a trial mutilation of supra, counsel a witness if he had seen a at the sign records asked draft Ye Who Hope of hall “Abandon All proclaiming, end Here,” applause and shouts. Al- provoking laughter, Enter as and inflam- provocative it described this though question had the court held that counsel matory, engaged Hallinan, In re 71 In supporting contempt. misbehavior Cal.Rptr. (1969), 459 P.2d 255 defense 81 Cal.2d restrictions have imposed that “the been counsel stated are unfair to the defendant.” The Cali- upon evidence counsel’s conviction for sum- Court reversed Supreme fornia contempt by the trial court. Similar- imposed criminal mary Carrow, Cal.Rptr. 601 Cal.App.3d in In re ly, Honor, I this is “Your submit trial (1974), objected, counsel court found these words joke.” appellate becoming “ill-chosen,” contemptuous Appellant’s but not misbehavior. was less offensive than statements made conduct of were reversed decisions where convictions these appeal. on these cases and com- appellant’s

The contrast between ments, upheld courts have determina- and those cases where Schiffer, misbehavior, clear. United States tions tool the court was a counsel’s accusation supra, risk unfair carried imminent and otherwise government favorable pressured awarding into might that-the Accord, In re rulings to the defense. Buckley, Cal.3d Cal.Rptr. 121, (1973), 514 P.2d 1201 cert. denied, 418 U.S. (1974) L.Ed.2d (counsel’s charge during trial that “This Court obviously doesn’t want to apply the law” created imminent threat to court’s authority by judicial alleging dishonesty).

Appellant’s conduct does not rise to the level of the Schiffer, misbehavior in United States supra, and Buckley, supra. Appellant’s statement did not exceed the “outermost limits his role” and proper rather “[hinder] In re Dellinger, supra than facilitate the search for truth.” 400; Dobbs, Court, see D. Contempt 56 Corn.L.Rev. (1971). We therefore appellant’s reverse first con viction of criminal summary contempt.7

IV When held in contempt trial, on the first day had been appellant instructed the court that the proce rise, dure for was to objections announce an objection and await the court’s silently ruling. Counsel was not to offer objection reasons for his any unless the court so specifically requested.8 Appellant held in a contempt second time ground, 7. Because we reverse on this we do consider whether appellant’s conduct an caused obstruction to the administration of justice justice. or whether intended to obstruct procedure objections prohibit- 8. We note that the court’s rule for of ing grounds objections except by permission, of statement for is contrary Project to recommended standards. ABA on for Standards Justice, Relating Criminal Standards to the Function of the Trial Draft, Judge 1972) (Approved provides: 5.7§ “Duty judge objections requests rulings. present of counsel’s on judge respect obligation trial “The should of counsel to objections procedures admissibility evidence, and to of to re- motions, quest rulings proof, on to make offers of and to have the rulings judge record show adverse counsel considers and reflect conduct of the which prejudicial. permitted Counsel should be succinctly grounds objections requests; state of his or but the judge length argu- should nevertheless control the of manner ment.” Mathis, Accord, U.S.App.D.C. United States v. 535 F.2d (1976) (quoting approval); Dellinger, ABA Standard with In re 1972). (7th Commentary F.2d Cir. to this section notes when, objection the court overruled his to a line of after cross-examination, he he was explained Ap- why protesting. however, did not cause obstruction persistence, pellant’s an of trial create imminent threat orderly process Thus, the second conviction for disruption. of significant must also fall. It well under subsection III that “the established . of with court order showing noncompliance mere sufficient, alone, Common prove contempt.” is never 392, 396, Haefner, v. 368 A.2d wealth Inc., supra (con v. Racing, Mountain Laurel see McMillan despite counsel’s violation court order to reversed tempt reversed Caplan, supra (contempt Tenenbaum proceed); prohibiting violation order despite specific witness’s United States v. subject); Snyder, on certain testimony (4th 1974) (contempt despite Cir. reversed defend F.2d 645 stand); him to Jess requiring violation of court order ant’s viola Clark, supra (contempt despite reversed counsel’s up time). at designated order Under appear tion of court subsection, conduct will not allegedly contemptuous this contempt except criminal summary justify imposition the administration it an obstruction of where causes accord, Johnson, United States v. supra; justice. 371; Rac McMillan v. Mountain Laurel Seale, supra see Inc., v. Snyder, supra United States supra; compare ing, where violation court order conviction reversed (contempt cause obstruction to proceedings) from seat did not to rise Patrick, (7th 1976), 542 F.2d 381 Cir. with United States denied, 51 L.Ed.2d 775 430 U.S. cert. judge the trial exer is intended to admonish “This standard permitting prosecu in counsel for the and fairness cise self-restraint duties,” perform and that the defense to their “the tion and for right of counsel ... to make known the affirms the standard general objection.” rule grounds The reason for this is that of the Stafford, disfavored, g., objections e. Commonwealth Pa. are 2775, denied, cert. U.S. S.Ct. 299 A.2d Marshall, (1973); 287 Pa. 135 A. Commonwealth L.Ed.2d (1864), Wagstaff, 48 Pa. 300 and that “it is Cullum colloquy judge may recognize through the his mistake and such infecting Dellinger, supra prevent error from record.” (1977)(contempt upheld where witness’s refusal as testify ordered caused considerable expense delay and may have precluded opportunity government an bring against suspected criminals). indictment conduct did not Appellant’s cause any obstruction of jus- tice. There was no disruption or in delay proceedings an imminent threat such fact, disruption. the district attorney admitted that he was in error and withdrew the disputed Because question. the court waited until the end of the day impose there was contempt, no delay It is even proceedings. unclear whether the trial court thought appellant’s statements were contemptuous when uttered, for the court at that time said “Mr. only, Sagel, the setting,” sun is and waited until the end day inform that he was court. Com- Johnson, pare In re supra (contempt reversed where coun- sel’s statement district attorney the judge brief, shared a signal system was caused no disruption or was neither an delay, assault on the authority personal nor vicious attack on the and the judge jury was influenced) with improperly Commonwealth v. Mayber- ry, (1969) 255 A.2d 131 (plurality opinion), on grounds, vacated other 400 U.S. (1971)

L.Ed.2d 532 (contempt upheld where defendant inter- rupted proceedings by with interfering charge to jury, called judge trial a “hatchet man for State,” S.O.B.,” “a dirty “burti,” and a and asserted judge illness). suffered mental In McMillan v. Mountain Laurel Inc., Racing, supra, coun- sel and the court engaged in a dispute over counsel’s course of cross-examination. The court twice warned counsel that if he did not proceed with the ordered, as questioning court would sanctions. impose When counsel refused to the court comply, held him in summarily criminal contempt.9 following colloquy 9. The occurred between counsel and the court: Gorr, you may “THE COURT: Mr. cross-examine. CROSS EXAMINATION BY MR. GORR: city Townsend, you expect Mr. do Q. this tomorrow and Friday? conduct did not ob- counsel’s reversed because This Court it though even had justice the administration struct Tenenbaum delay proceedings. in the a slight caused where conviction a contempt reversed a we Caplan, supra, to testify concerning not witness, twice warned We in violation of court orders. point, testified a certain where the unjustified contempt summary held proceed- trial or disrupt interrupt did misconduct Friday. city engagements tomorrow out IA. have purpose of interesting, it? but what is That is THE COURT: my question, objection Your to Honor? an Is there MR. GORR: get case. Let’s not into stick to this Yes. Let’s COURT: THE disregard question. jury Pro- will the last The intercourse. social to this questioning matters relevant the witness with with ceed case. object I the words— to GORR: MR. Gorr, you please proceed with the case. Mr. will THE COURT: my proceeding with case. I am GORR: MR. you no— will entertain Proceed THE COURT: courtroom— demeanor this MR. GORR: Gorr, proceed you going with this case Mr. are THE COURT: not, appropriate take sanctions. right If we will now? case, proceeding Your'Honor. with am MR. GORR: question. a go Ask Then ahead. THE COURT: question, Honor. Your I asked a MR. GORR: totally improper. question is That THE COURT: proper— my question ruled If MR. GORR: Proceed, Mr. Gorr. THE COURT: proceeding, Your Honor. I am MR. GORR: question. Ask a THE COURT: Honor, is unfinished business on there Your MR. GORR: like finish. I would which record Mr. Gorr— THE COURT: Yes, Your Honor. MR. GORR: question relevant will ask a You either THE COURT: you the next fifteen seconds case within subject of this matter being imposed $100 as going a to have fine are you you have fifteen seconds? Do understand Court. this I understand. MR. GORR: more comment. hear no I will COURT: THE like If operate that. an ultimatum under I will not MR. GORR: sanctions, you impose do so. you wish pay question.- will forthwith a You to ask Proceed COURT: THE you Jail until do. or be committed $100 fine Bodnar, you may Beinkemper, cross-ex- sheriff. Mr. call the Mr. this witness.” amine Inc., Racing, 467 Pa. 267 356 A.2d Laurel v. Mountain McMillan (1976). ings. See Commonwealth v. Haefner, supra (contempt re versed where witness testified on subject despite court order do so). to not federal

Two decisions illustrate the line which separates advocacy from obstruction under subsection III. In Dellinger, F.Supp. (N.D.Ill.1973), counsel continued after argue to the court had overruled an objection. Despite specific three orders cease argument, counsel continued to point.10 his On remand press from the of appeals, court following colloquy 10. The is the between counsel and the court: my ruling I “The Court: will let stand. Weinglass: Mr. Your Honor— my stand, ruling I The Court: said I’d let sir. Weinglass: permit opportunity Mr. Your Honor must us the responding to that. permitted you. I permitted The Court: have speak, I have Mr. Kunstier to you fsic, ‘may’ now question and ask another omitted] this witness. Weinglass: Abernathy Mr. Reverend was mentioned as an officer of the National Mobilization. Weinglass— The Court: Mr. Dellinger: Mr. He was co-chairman. you I The Court: direct to— Weinglass: Mr. He was national co-chairman. Honor, Mr. Foran: Your there were seven individuals who are still part in this as case of this indictment. There is no national— you The Court: Will continue with the examination— Honor, Weinglass: Mr. I Your would like to ask Mr. Foran what relationship speaker the unidentified had with the National Mobili- speech zation. His was— you examination, Court: order to continue with his sir. Weinglass: your sensitivity Mr. I understand Honor’s to what Abernathy particular Reverend said time. go The Court: And I direct that that remark out. Weinglass: McCarthy Mr. And spoke. Senator also jury disregard The Court: And I direct it. Weinglass: Mr. Two McCarthy witnesses referred to what Senator say, had to and he is not a defendant here. examination, your Mr. Foran: On cross Honor. On cross examina- men, by by tion government. these not on direct examination Weinglass: Mr. On direct examination— comply my you The Court: Will with order? Honor, going part Mr. Kunstier: Your I am to answer the second argument. Goodwin, Weinglass: Mr. Richard when he was as called a witness us, by McCarthy. referred to exact words Senator you comply my The Court: Will with order? obey counsel’s failure to the court’s held that district was not an obstruction proceed and orders ruling contrast, Local Pennsylvania By proceedings. where counsel convictions upheld of appeals the court supra, The trial court contempt. summarily adjudged was twice persisted after counsel stat- conviction the first imposed after the court overruled the objection his reason for ing his Be- counsel not state reason. directed and objection contempt, held in criminal counsel summarily the court fore to state the him seven times not directed specifically it had him four had warned objection, specifically reason he would be held in failed to comply if he times with proceedings speak delayed had Here, delay caused no in chambers. counsel court. did not cross Appellant no defiance exhibited argument part the that second What about Mr. Kunstler: on direct? mentioned mule train was the The Court: you sit down. 1 will ask Honor, your Honor ruled that but that Your Mr. Kunstler: not — irrelevant. was The Court: lawyers an examination and conduct I let two cannot objections. handle conducting I raised the examination. I am not Kunstler: Mr. second answered, Mule was not SCLC argument and that demonstrators, why Train, did was afraid of if mule train day? Abernathy speak next Ralph to them the my you comply order? with Will The Court: permit jury your to hear what Weinglass: If Honor will not Mr. Abernathy said— Reverend that, your Just to that. Isn’t Honor. listen Foran: Listen Mr. that classical? remark, again. make it I and don’t will strike last The Court: Marshall, laughs anyone jury disregard who it. Mr. I direct aloud please rulings will than the of the court at the —other the court room. to leave asked defendants —be Mr. Kunstler: Honor, my 1 am entitled to an answer to Your objection? you. I have heard The Court: Well, responded. prosecutor has not He has Mr. Kunstler: ignored it. you. I have heard The Court: just Reverend Weinglass: to show that want the record Mr. wat, Abernathy Mobilization. of the National an officer Oh, sorry Weinglass. Weinglass. 1 am Mr. Mr. The Court: —” (N.D.Ill. 1973)(brackets in Dellinger, F.Supp. -37 In re original). the line which separates re Dellinger, F.Supp. 1304, supra, from v. Local Pennsylvania supra, therefore appellant’s second conviction must be reversed.11 appellant’s

In reversing convictions for criminal summary we a contempt, emphasize that in proper case a court retains the power impose summary criminal contempts. Further, for those situations not justifying sanction, this drastic less sanctions, severe such as civil contempt and nonsummary contempt, criminal are available. See United States v. Shillitani, ABA supra; Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial 6.3, Judge Draft, 6.5 (Approved 1972). §§ appellant’s Neither of convictions of contempt is sup- ported by sufficient evidence. We therefore reverse appel- lant’s convictions and discharge him. Commonwealth v. Africa, supra.

Judgments reversed and appellant discharged.

Mr. Justice Packel did not in the participate consideration or decision of this case.

MANDERINO, J., joins this opinion and a files concurring opinion. J.,

EAGEN, O’BRIEN, J., C. concur in the result. POMEROY, J., files concurring opinion. J.,

NIX, concurs the result.

POMEROY, Justice, concurring. I concur in the decision of the Court that on this record appellant was not of guilty criminal of contempt the trial cannot, however, court. I agree with much that is said in the plurality’s prolix opinion, and deem it appropriate to give reasons in this my separate opinion. ground,

11. Because we reverse on this we need not consider whether and, so, engaged in misconduct if whether he did so with proceedings. intent to obstruct the

I. outset, my At the reiterate emphatically disagreement Mr. construction of our con with Justice ROBERTS’ basic Johnson, in my dissenting opinion statute.1 See tempt 552, 561, (POMEROY, J., A.2d 739 dissent (1976) 467 Pa. EAGEN, JONES, C. I would J.). J. and ing, joined by that, view, reliance on Cammer my add here simply States, 399, 76 100 L.Ed. 474 United 350 U.S. is con lawyer for that a not to be (1956), proposition the the within of meaning an “officer of court” sidered supra statute, Pennsylvania contempt subsection I of Cammer Court misplaced. Supreme quite note presented with detailed legislative the United States of of statute the con contempt compelling the federal history were not of the clusion that “officers” federal courts lawyers statute.2 See of at 403 meaning within U.S. no Pennsylvania history 456. There is such indicat 76 S.Ct. had intention to use the Assembly any that our General ing than its accepted other anything commonly term “officer” as of our clearly cases meaning. meaning, perusal That Shigon, re Ing., shows, see, 329 A.2d 235 e. 16, 1836, (¡962). P.L. 17 P.S. $ Act of June § 1. provides: statute power . the several courts of this Commonwealth to “The of contempts summary punishments of court shall be re- inflict cases, following to-wit: stricted to the officers of such courts “I. To official misconduct of respectively; officers, parties, jurors neglect or or “II. To disobedience court; process lawful witnesses of or to the any person presence in the “HI. the misbehavior of To court, obstructing justice.” thereby administration of provides: That statute 2. 18 U.S.C. 401. § of court Power “§ power punish by shall have fine “A court of the United States discretion, authority, imprisonment, at its its such other, as-—(cid:127) none “(1) any person presence or thereto in its so near Misbehavior justice; as to obstruct the administration of “(2) in their transac- its officers official Misbehavior tions; order, writ, process, “(3) its lawful or resistance to Disobedience rule, decree, or command.” Schofield, 201, 1, Pa. 204 n. 675, A.2d (1949), therein, n. 1 and cases cited includes a lawyer appear- before a ing court this state.3 See also Act 14, of April 1834, 333, 69, P.L. 17 P.S. (1962) § (re-enacted § in Code, Section 2522 of the Judicial Pa.C.S., with slight which changes wording), requires an as attorney, part of office, his oath of to swear to act “with all good fidelity, as well as court to client.”

It be should also noted that under the plurality’s construc- tion of the Act of “what is sauce for the goose is sauce gander.” say, if That the statute cannot be punish brazenly used stop unethical conduct in open counsel, by defense neither can it be so used with respect to prosecutorial misconduct. The consequence in many cases will that the only should remedy, the trial end conviction, will be to correct an unfair trial by reversing for a new remanding trial. E. g., Commonwealth v. Joyner, (1976). 365 A.2d 1233 Trial judges circumscribed, should not be so and trials should not be See, susceptible such taint. e. easy g., Commonwealth v. Potter, Pa. 267 & n. 386 A.2d 925 & n. (1978) (opinion support affirmance).

II. I find particularly two disturbing other statements in the plurality opinion, notwithstanding that they are dic- merely ta. The first is the pronouncement that a court should “first less severe remedies consider such as civil contempt before imposing summary criminal contempt,” ante at and that criminal non-summary too is usually preferable to criminal Ante contempt. at 385. In civil contempt, of course, the contemnor “has the keys jail in his pocket” his through ability purge himself contempt by with the court’s complying order. Can the coercive effect of that sanction have any usefulness when the contemptuous legislature: 3. As we have bee.i admonished “When the words of a statute clear ambiguity, are and free from all the letter of it is disregarded pretext pursuing to be under spirit.” its Statutory 1921(b) (Supp.1977). Act Construction Pa.C.S. § with, when the offensive over and done words conduct is uttered, and when the caused damage by been already have be with ethical standards cannot undone? noncompliance silent while a fair trial a trial remain is judge And must of lawyers, conduct and by unprofessional being jeopardized over, sanctions until the trial is of imposition aside put is a new trial?4 To both only remedy which point at Furthermore, be “no.” surely the answer must questions preferable civil is the course is contempt that suggestion with the views to reconcile recent- impossible if not difficult in three members of this Court by ly expressed Grand Investigating Jury, 475 Pa. Special 1975 November in of affirmance (1977) (opinions support 1313 123, 379 A.2d POMEROY, J., ROBERTS, joined by and both J. necessary where swift action is O’BRIEN, J.). In situations -136, see id. 475 Pa. at 128 authority, the court’s to vindicate of in of affirmance (opinion support at 1318-19 379 A.2d -140, A.2d at (opinion at 136 ROBERTS, J.), 475 Pa. POMEROY, J.), the two reme- affirmance of in of support contempt plurality opinion in today’s suggested dies —-civil well contempt criminal useless.5 non-summary nigh —are opinion in Mr. Justice ROBERTS’ other observation the second is the assertion that response prompts that must be treated as having here at issue conviction contempt 1836, Act of supra III of the under subsection imposed been of due Al- process. avoid a violation 1, in order to note of con- adjudication that the trial judge’s I agree though that a fuller would explanation ambiguous tempt cl. Fed.R.Crim.P. 42(a), the desirable, plurality’s have been criminal cannot summary contempt insistence apparent “reads the Riot Act” literally the court unless imposed be may availability be constitutional- a new trial some cases 4. The may way. Jeopardy in the ly suspect, Clause stand for the Double 251, Potter, 478 Pa. 386 A.2d 918 generally, See Commonwealth affirmance). support (1978) (opinion in course, summary contempt say, that the use of the This is not authority. only vindicate the court’s power means available to is the open reprimands court can and at side bar or case th» usual contempt power is to. resorted be used before should see ante court, recites the Act of 1836 in open seems me to quite unwarranted. It has been well said by the Supreme Court the United States that appellate judges not to are “imprison discretion of trial judges within rules,” Offutt v. rigid mechanical States, United 348 U.S. 11, 14, 75 S.Ct. (1954) L.Ed. 11 (Frankfurter, J.), and a most inappropriate area for generalizations. broad Mayberry Pennsylvania, 400 U.S. 455, 463-64, L.Ed.2d (1971) J.). (Douglas, And as we noted Commonwealth Mayberry, (1974) (citations A.2d and footnote omitted): need exists to fit criminal contempt, a crime “[N]o sui into generis, procedures the mold of for more commonplace offenses. This Court has in the past recognized that due is a flexible process concept and not one wed to fixed I formalities.” would leave any discussion of due process that this case questions might present for a time when the constitutional point to a necessary decision.

III. Addressing now the factual situation of us, the case before appraisal of the lawyer’s should, conduct view, in my be undertaken in light factors set forth in my dissenting Johnson, in In re supra: opinion person,

“Unlike the lay the lawyer is bound duty manifest an attitude of professional respect toward the court and its His processes. conduct in the courtroom can a have great impact on the extent to which the proceed- ings are as perceived fair and dignified by juror, defend- ant, witness, and spectator. He possesses the unique of capability denigrating proceedings through elo- quently charges clothed of impropriety. Unlike the lay he can person, justice obstruct without being overtly bel- ligerent great and without a taking up deal of the court’s words, time. His carefully chosen softly spoken brief- ly put though be, they may can submerge the dignity in insinuations of improprieties. The im- proceedings must, therefore, action pact of be assessed in lawyer’s ’ of these considerations.” light Pa. at 746.

A.2d at Mr. conduct under this I Viewing Sagel’s approach, agree did not the two acts involved warrant a finding judgment, defense contempt. my lawyer’s question court, well, client be seated as or is he “May my to be ill-chosen, while flagellated jury?”, front of the and his of the substitute interruption prosecutor’s short cross-exami- viewed as de minimis. The record reveals nation can only trial marked some friction hotly a contested between the counsel, but it trial and defense cannot be said that judge Mr. failed to show “an attitude of Sagel professional respect Johnson, supra, processes,” toward the court and its or “insults complained the conduct constituted and tactics taken from street brawls and judge, trial trans- Mayberry Pennsylvania, supra, to the courtroom.” ported simply 91 S.Ct. at 504. There was no need U.S. hold Mr. Sagel for the trial court to order to authority.6 vindicate its judge agree with Mr. Justice ROBERTSthat the trial is not to be forbidding practice counsel to state on the commended record- his reasons ruling. his objection question, for an to a an answer 542, Pennsylvania Ante at 379 n. 8. But cf. Local Interna- (3d 1977). Operating Engrs., U. 552 F.2d 498 Cir. Worth tional Of however, repeating, is the of Mr. in admonition Justice" Jackson States, 1, 9, 451, Sacher v. United 343 U.S. 72 S.Ct. 96 L.Ed. 717 389, (1952), (7th approval Dellinger, quoted with re 461 F.2d 1972): Cir. course, right every litigant press it is the of counsel for his “Of claim, untenable, appears even if it farfetched and to obtain the enjoyment ruling. right, Full of that with court’s considered allowance due controversy, protected by appel- for the heat of will be infringed ruling trial if late courts when courts. But is adverse, right it is not counsel’s to resist it or to insult the only preserve judge right respectfully point is his —his appeal.” McConnell, 230, Moreover, Dellinger nor In re neither U.S. 1288, (1962), upon plurality also 8 L.Ed.2d 434 relied lawyer proposition given grant opinion, stand for the that a is “a immunity good for all conduct undertaken faith” on behalf of his 461 F.2d at 398. client. I agree

Because the record reveals insufficient evi- dence for convictions contempt under any part of the Act of 1836, note I concur in the supra result.

MANDERINO, Justice, concurring. Court; join opinion however, in the I do not all holding jurisdictions endorse cases from other cited cases, therein. In some of those conduct which did clearly constitute was held to be contemptuous. I do not Secondly, agree that appellant’s conduct in this case could have constituted contempt under subsection II 16, 1836, Act of June P.L. 784 17 P.S. § § (1962). Subsection II limited to the failure to comply with order, Johnson, formal see In re 359 A.2d (1976).

386 A.2d 989 Pennsylvania v. COMMONWEALTH SMITH, Appellant. Howard S.

Supreme Pennsylvania. Court of

Argued May 1976.

Decided June

Case Details

Case Name: Commonwealth v. Garrison

Court Name: Supreme Court of Pennsylvania

Date Published: May 5, 1978

Citation: 386 A.2d 971

Docket Number: 1645 and 1647

Court Abbreviation: Pa.