Commonwealth v. RestifoCommonwealth v. Restifo
- Reporters:
- , ,
- Before:
- Wieand
Joseph Restifo, Esquire, was summarily found guilty of direct criminal contempt because of unspecified conduct occurring after a non-jury trial had been adjourned for the day and while the trial judge was leaving the bench. Our review of the record fails to disclose evidence sufficient to sustain a conviction for contempt. Therefore, we reverse.
Joseph Restifo, Esquire, was counsel of record for the plaintiff in a civil action being tried non-jury in the Court of Common Pleas of Philadelphia. The tone of the trial was set early when Restifo asked the trial judge if the judge had asked that the case be assigned to him. After a short recess called by the trial judge so that he could have “an opportunity to calm down,” the trial judge directed a tirade against counsel which accused counsel of suffering from a longstanding problem and suggesting that his “insulting and outrageously inflammatory question” may have been
After the trial had been adjourned at 5:15 p.m. and the trial judge was about to leave the courtroom, defense counsel inquired about the effect of a Jewish holiday upon the next day’s proceedings. As a part of the trial judge’s answer, he impliedly blamed Restifo for prolonging the trial and said, as the judge concedes, that Restifo “could care less about the entire schedule of anyone involved.”
2
What happened next is not clear. Because court had been adjourned for the day, no record of the succeeding interchange was made, and the versions of the trial judge and Restifo vary widely. The version placed on the record by the trial judge was that Restifo had become upset and had jumped up and begun shouting that he wanted to put something on the record. When told to be seated and to stop shouting and screaming, according to the trial judge, Restifo refused. This was denied by Restifo, who said that
The inherent power of a court to inflict summary punishment for contempt of court is restricted by
“The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.”
“[The Supreme Court] has consistently held that subsection 3 requires proof beyond a reasonable doubt of (1) misconduct, (2) in the presence of the court, (3) committed with intent to obstruct the proceedings, which (4) obstructs the administration of justice. [T]he Pennsylvania summary contempt statute has been interpreted to require that in order ‘[f]or conduct to constitute an obstruction of the administration of justice, it must significantly disrupt judicial proceedings.’ ” Commonwealth v. Cameron, 501 Pa. 572, 575, 462 A.2d 649, 650 (1983) (citations omitted). See also: In the Matter of Campolongo, 495 Pa. 627, 435 A.2d 581 (1981).
The record in this case does not suggest misconduct by counsel intended to obstruct or which obstructed in fact the
“A court of law,” it has been said, “is not the personal fiefdom of the individual who happens to be sitting on the bench____ If a lawyer can be denied the opportunity even to address the court on the subject of what he conceives to be valid objection, it is hard to imagine what part of his function as advocate is left to him.”
In the Matter of Nugent,
494 Pa. 2, 7-8, 427 A.2d 1154, 1157 (1980), quoting
Edmunds v. Chang,
365 F.Supp. 941, 948 (D.C.Hawaii 1973),
rev’d on other grounds,
509 F.2d 39 (9th Cir.1975),
cert. denied,
423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). It is the responsibility of counsel to represent zealously, but with due regard for the dignity of the judicial process, the position of his or her client.
Commonwealth v. Rubright,
489 Pa. 356, 364, 414 A.2d 106, 110 (1980). A trial court will not be permitted to stifle an attorney’s advocacy by refusing to allow an objection, and a request intended to perfect the record for subsequent review will not support a conviction for contempt. See and compare:
In the Matter of Nugent, supra.
Mere affront to the trial judge is not enough. Remarks that are injudicious, or even disrespectful, will not, without more, justify a summary conviction for contempt of court.
In the Matter of Campolongo, supra
495 Pa. at 633, 435 A.2d at 584;
Commonwealth v. Garrison,
478 Pa. 356, 373, 386 A.2d 971, 979 (1978). Inappropriate and even ill-mannered conduct which does not obstruct or delay the trial “falls short of that misbehavior which may be punished under [
Even if we assume in the instant case that appellant’s tone of voice was loud, or even insulting, his attempt to place on the record those remarks of the trial judge which were deemed inappropriate did not provide that requisite intent or that disruption of proceedings which is necessary to support a conviction for contempt. See: In re Cogan, 485 Pa. 273, 401 A.2d 1142 (1979).
Because the record does not support a conviction for contempt, we will reverse the order of the trial court and discharge the appellant. It is unnecessary, therefore, to consider appellant’s additional argument that he was deprived of a constitutional right to be judged by a neutral and dispassionate judge as required by Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).
The order of the trial court is reversed, and appellant is discharged.
Notes
. It is not our purpose to find fault in connection with this exchange. We refer to it only because it appears relevant in setting the stage for the events which followed.
. Restifo had initially estimated the length of trial to be several hours. Shortly before adjournment, he told the trial judge that he believed he would require all of the next day to present his evidence. The trial judge then suggested that counsel had prolonged the trial by conferring unnecessarily with his client throughout the proceedings.
. The record discloses that the trial judge’s version was placed on the record without interruption. Restifo’s version was interrupted repeatedly by the trial judge to register disagreement with counsel’s version.