*1 banc, court, en and the reason. As the trial different concluded, failed to appellant unreasonably Superior Court trial, appellant an obvious risk. At against take precautions down the basement falling testified that in the course of see that he was he was able to inspecting, of the house steps Thus, his own missing. testimony, appellant step condition visible dangerous plainly to observe a “fail[edj to his own regard safety.” nevertheless without proceeded] Exeter, v. Miller Board
(1951).
Appeal of Thomas E. HARTING E. In re Thomas HARTING. Pennsylvania. Supreme Court of Oct. 1979. Submitted 2,May Decided *3 Thomas G. Klingensmith, Lancaster Asst. Public County, Defender, for appellant. Eckman,
D. Richard Dist. Lancaster Atty., County, appellee. EAGEN, J.,
Before O’BRIEN, ROBERTS, C. NIX, LARSEN, KAUFFMAN, FLAHERTY and JJ. THE COURT
OPINION OF FLAHERTY, Justice. Court from an order of the appeal1 direct
This in County holding Pleas Lancaster Common follow, reverse we For the reasons of court. of sentence. judgment Thomas E. facts follows: Appellant, relevant are as Lancaster defender in public and was a Harting, Esquire, 1976, in repre- the course Friday, On July County. made client at a suppression hearing, appellant a senting on direct examination testimony given objections three utter- hearsay were as to objections detective. The police his third ances, making objection, and upon appellant’s occurred: following Miller said. to what Mr. objecting HARTING: I’m
MR. overruled. Do understand you Objection THE COURT: for truth and hearsay falsity— between the difference it, Your I do. Do understand you MR. HARTING: Yes Honor? later about I I’ll speak you
THE COURT: Yes do. Proceed. impertinence. this replace Honor, you I move that
MR. HARTING: Your judge and have another presiding judge yourself case. this I’ll later. you
THE COURT: Overruled. speak (Notes 13). Suppression Hearing Friday on suppression hearing
At the conclusion of the courtroom afternoon, the dismissed from the judge everyone *4 At that and a court appellant, reporter. a clerk except time, following exchange place: the took I Harting, Mr. did not understand
THE COURT: Now I knew the Court to whether you the remark made to What law, words to that effect. about the or something I to be an the reason for that remark which take was impertinence? pursuant Appellate Act of Appeal Jurisdiction is taken to the Court II, 202(5), 31, 1970, July 17 P.S. No. Art. § Act of P.L. 722(4) (Pamph.1979)). 211.202(5), (current at 42 Pa.C.S.A. version I to be
MR. HARTING: took it an when impertinence me, the same to If we you question asked Your Honor. are to have kind of discussion on whether or any proper law, ought I understand the I think we to be on you or think, Honor, I judge. terms. Your You equal you’re are thousand dollars a You should have paid forty year. the attorney, and as that of an and temperament patience when ask to force questions try attorneys you try them thing embarrass in front the court front in court, I think are not open doing your judicial that you function.
THE And think that I you question you COURT: asked was a which was deemed and intended embar- question rass you?
MR. It HARTING: was same context as my question.
THE COURT: And think— you MR. almost HARTING: identical. They THE And think was you my question you COURT: intended to embarrass you?
MR. If I you thought HARTING: asked question you to be one intended of impertinence yes.— THE And think that you COURT: was the intention of the Court—to embarrass you?
MR. There was no HARTING: doubt it was taken that words, other asked way. In me if I understood the you law.
THE COURT: Is there further wish to anything you say about this? No,
MR. HARTING: Your Honor. adjourned.) (Whereupon hearing (Notes of Suppression Hearing 34-36). Monday
On held morning, July judge appel- lant in of court and ordered him to later appear At sentencing afternoon for sentencing. proceed- counsel, ing, with four appellant appeared, judges before all and his was given Lancaster Court counsel an County
361 Appellant apologized on his behalf. opportunity speak previous Finally, behavior. time for the court that severe reprimand administered a Judge the President conduct. disrespectful for his appellant states, is in jurisdiction our based which upon The statute shall have exclusive “The Court part: Supreme relevant of Courts of final orders the of from jurisdiction appeals . of cases classes any following Common Pleas in added). (emphasis . . . .”2 contempt criminal (5) direct Act, Appellee Note 1. supra Jurisdiction Court Appellate the court arguing that premature, that this is objects appeal a of sentence on judgment did not enter below is not a without a sentence that a conviction conviction and whether the Thus, we determine initially order. must final as was administered to which reprimand” “severe remarks constitutes contemptuous for his the sanction sentence, e., i. a final order. appealable judgment or contempt imprison- is fine punishable Traditionally, See, The enacted Sentenc- recently ment. 17 2042.3 P.S. § however, sentencing alter- Code,4 variety authorizes ing of each case. 18 natives, the circumstances depending upon alternatives 1321. One of the enumerated Pa.C.S.A. § “[a] 18 without further Pa.C.S.A. guilt penalty” determination in light the court 1321(a)(2), may imposed by which be § “[i]f circumstances, would be probation appropriate of all the it ., probation 1322 . . but appears under . § . .”5 18 1323. unnecessary . Pa.C.S.A. § dealing clearly since 2. direct criminal We with dignity authority primary purpose vindication of its court’s allegedly contumacious behavior occurred actual Marcone, 572, presence court. See Commonwealth (1980). 759 1836, 784, 24, 16, (current 42 3. Act of June version at Pa.C.S.A. P.L. § (Pamph.1979)). 4132 § amended, 4. Act of December P.L. No. seq. (Supp.1979-80). et Pa.C.S.A. §§ guidelines determining appropriateness 5. of an order of probation 1322: are set forth 18 Pa.C.S.A. § probation Order It that we have before us a sentence of appears “guilt *6 without an order of have penalty.” Although probation may case, appropriate been in this it is apparent probation was unnecessary.
In instances, some the court decide that the needs of may alone, justice guilt fulfilled a determination by without for further The shame and necessity penalty. trauma of conviction be public may punishment enough and there be no need of for ‘reformation’ or may any plan cases, control. In such the courts should be free to make such a without useless judgment requiring probation. Toll, Annotated, S. Crimes Code Pennsylvania (Supp. § 1978) Committee of Bar (Report Special Pennsylvania Thus, court, lower Association). meting out a “severe reprimand”, acknowledged appellant’s guilt without impos- such, ing punishment. other form of As we have a any “determination without guilt further as autho- penalty” following grounds, controlling The while not the discretion of the
court, weight probation: shall be accorded in favor of an order of (1) The the defendant nor criminal conduct of neither caused threatened serious harm. (2) contemplate The did not that his defendant conduct would cause or threaten harm. serious (3) strong provocation. The defendant acted under a (4) grounds tending justify There were substantial to excuse or defendant, though failing the criminal conduct of the to establish a defense. (5) The victim of the criminal conduct of the defendant induced or facilitated its commission. (6) compensated compensate The defendant has or will the vic- damage injury tim of his criminal for the conduct or that he . sustained. (7) history prior delinquency The defendant no has or criminal activity law-abiding period or has led life for a substantial of time present before the commission of the crime. (8) The criminal conduct of the defendant was the result of unlikely circumstances to recur. (9) of the The character and attitudes defendant indicate that he unlikely to commit another crime. (10) particularly likely respond affirmatively The defendant is to probationary treatment. (11) The confinement of the defendant would entail excessive hardship dependents. to him or his (12) grounds desirability probation. Such other as indicate the final, 1321,1323, which constitutes rized Pa.C.S.A. §§ order. appealable us, before we case is properly determined that this
Having con- Appellant the merits. a consideration of now turn to to support evidence was insufficient tends that Act of June P.L. under the contempt conviction 2041, reenacted as 42 Pa.C.S.A. 23, 17 P.S. § in pertinent which provides, part:6 courts of this Commonwealth several power punishments inflict summary attachments and to issue be following of court shall restricted contempts cases,
III. of any person presence To the misbehavior the administration of court, obstructing the thereby of “subsection justice, III”] [hereinafter judg- reverse the agree appellant accordingly We with and ment of sentence.7 for contempt convictions principles controlling well settled: the contempt,
In a for criminal Common- prosecution element of the proving every wealth has the burden of prove a reasonable doubt ... To crime beyond be acted may upon of court which contempt criminal 16, of of III of the Act June under subsection authority 1836, intent, prove improper must an the Commonwealth of of an and an the administration action obstruction justice. identify specific did the subsection of Section
6. The court below pursuant appellant it in his 23 to which acted. Because the states III held in under and because brief that he was subsection opinion the must fall within the we are of the misbehavior all, III, purview 17 P.S. 2041 we subsection if it comes within at of applicability do not the of the other subsections. consider appellant’s unsupported by find conviction be the Because we ground, judgment of on this we evidence and reverse the sentence process need due that he have not reach claim should presided judge been other than the one who at the tried before suppression hearing language complained whom the of at directed. 364 739, (1976). 552, 557, A.2d 742 Johnson, 359
In re remarks obstruct- appellánt’s issue is whether The threshold of the be an obstruction conduct to justice. ed “[F]or disrupt interfere with and it must justice, of administration 558, 359 A.2d Id., 467 Pa. at of a court.” the orderly process Id., is not enough.” the trial judge “Mere affront to at 742. “An of 560, at 743. obstruction Pa. at 359 A.2d 467 judi- disruption significant is a justice administration 356, Garrison, 478 Pa. cial Commonwealth proceedings.” are injudi- remarks 971, (1978). 386 A.2d “[T]hat sensibility or dignity affront to the ... an cious . insulting or disrespectful or even the court ... crimi- summary not, more, conviction justify will without Inap- at 979. 386 A.2d Id., 478 Pa. contempt.” nal or that “did not obstruct ill-mannered conduct propriate of that misbehavior . falls short . hearing delay Act of III of the under subsection which bemay punished Pa. In re Cogan, 1836.” stan- conduct, foregoing judged by
(1979). Appellant’s punishable which would be dards, not amount to that did were of The remarks made by contempt. criminal progress we do not find the nature and momentary remarks thereby. Appellant’s been hearing impeded to have were, however, clearly impertinent. representing responsibility
A has the lawyer within the bounds possible, to the fullest extent client *8 7-1. EC Canon Responsibility, law. Code of Professional must be lawyers adversary system, As in an advocates their pursue vigorously latitude to significant afforded however, lessens way in no obligation, client’s cause. Such the dignity and respect uphold to duty the absolute lawyer’s 7-36; Standards, The Id., ABA EC process, of the judicial Function, 7.1. Defense § the form of existence in corporeal is given
The “law” function, the judicial the When out judge. carrying the When of itself. justice personification becomes a judge is judge the judicial process, of the any aspect over presiding courtroom, subject to person another merely of the law- “The obligation and insult lawyers. affront by court is ‘not toward the maintain a attitude respectful yer judicial the incumbent of temporary for the sake of the by held to the office,’ give recognition position but to due of the law.” ABA Stan- in the administration the judge 7.1, 259. Function, at dards, Commentary The Defense and court, the of insolence display The is and judge law itself. to him is insult to the disrespect majesty an court’s an while in the attorney conduct Disrespectful and much more than impact has much presence greater and “Public re- judge lawyer. between dispute merely which image measure from the large for law derives in spect It enough of is not justice presents. the administration done; justice the appearance be there must also be justice ” Function, 7.1, Standards, ABA The Defense Justice so Pomeroy pertinently at As Mr. Commentary stated, the bound lay lawyer duty
Unlike the person, the an toward professional respect manifest attitude can its His conduct in the courtroom processes. court and proceedings on the extent to which the great impact have defendant, dignified by juror, are fair and perceived witness, spectator. possesses unique capability and He the clothed through the denigrating proceedings eloquently charges impropriety. Johnson, J.,
In re: 746 (Pomeroy, Pa. at dissenting). suppression judge ap characterized appropriately A remarks as become
pellant’s impertinent. lawyer may overruled, but repeatedly frustrated when objections give publicly judge’s this does not him license to insult the to wheth Appellant’s judge as intelligence. questioning was manifestly improp er he understood the law of hearsay Furthermore, er. later comment that he and when the law discussing to be on terms” judge “ought equal pa his comment upon judge’s “temperament respect evidence a for the office of tience” clear lack judge, appellant judge. By directing impertinences *9 366 even disapproval in firm warranting
has conduct engaged did not rise to the level of contempt. the conduct though discharged. reversed and appellant of sentence Judgment EAGEN, J., a concurring opinion. C. filed ROBERTS, J., in which concurring opinion filed KAUFFMAN, JJ., join. O’BRIEN and. LARSEN, JJ., dissenting opinions.
NIX filed EAGEN, Justice, concurring. Chief is whether I do that “The threshold issue agree justice.” appellant remarks obstructed Since appellant’s acting an officer of the court and the time involved was his remarks constituted that the issue is whether capacity, Johnson, 552, 359 In re 467 Pa. “official misconduct.” See Jones, J., (1976) dissenting, joined by A.2d 739 C. (Pomeroy, close, after J.). question very J. and While Eagen, that I am not per- consideration of occurred everything constituted “official misconduct.” suaded remarks Hence, reached Mr. Justice Flaher- I concur in the result ty-
ROBERTS, Justice, concurring. reach- Flaherty
While I with the result Mr. Justice agree es, my the reasons emphasize I must write separately code a “se- sentencing It is clear that under the decision. falls within the without reprimand” “guilt penalty” vere Thus, the sentence 1321(a)(2). 18 Pa.C.S. provision. See the merits constitutes a final order. On imposed appealable at the suppression hearing I believe that conduct contempt. not rise to the level of direct criminal did This conduct in no constituted ob- 4131(3). way Pa.C.S. § In re justice. administration of See orderly struction (1979); 485 Pa. 401 A.2d Commonwealth Cogan, Garrison, (1978) (plurality opinion). evidence of record is insuffi- I Accordingly, agree and that must be cient to the conviction support discharged. KAUFFMAN, JJ., this join opinion.
O’BRIEN
367 NIX, Justice, dissenting.
I dissent from the conclusion that majority’s in actions the trial court did not rise to the level of contuma- cious conduct under Section 23 of the Act of 1836. Act of 23; 16, 1836, 784, June P.L. 17 majority, P.S. 2041. The it has become so in its of appears, immersed subsec- analysis Act, III tion of that that it has overlooked the existence of two other subsections of The provision. application that of these other subsections to the instant is appeal summarily rejected (P. 109). at note 6 of the Majority Opinion
First,
it is clear
the “obstruction”
of
requirement
subsection III which forms the basis of the
find-
majority’s
case,
of no
in this
under
ing
prerequisite
not a
Second, it
subsection I.1
is clear that
shown to
disrespect
court,
officers,
one of
of a
during
its
course
judicial proceeding
prohibition
falls within the
of subsection
were,
I. The majority concedes that
remarks
“appellant’s
., clearly
(P. 110).
remark
impertinent.”
“[A]
[that
calculated to belittle the court in the
eyes
persons
is]
courtroom,
its
thereby
impair
dignity
Levine
authority”
recognized
contemptuous.
has been
as
Case,
Contempt
226 cert.
222,
372 Pa.
95 A.2d
858,
72,
denied 346
74
(1953).
U.S.
S.Ct.
Unquestionably, the nature of counsel’s and those of responsibilities other Ackerman, court. Ferri v. officers of the 193, 100 444 U.S. 23, I, provides pertinent 1. Section subsection the Act 1836 part: penal contempts Classification of power of the several courts of this commonwealth to issue summary punishments contempts attachments and inflict cases, following court shall be restricted to the to-wit: courts; I. To the official misconduct officers of such 368 Danforth, 479, 355; Reese 402, L.Ed.2d 62
S.Ct.
always
‘officer’ as it has
“The word
(1979).
I am of the view contemp- what conduct is in determining must be considered attor- I, concluding rather than tuous under subsection from the entirely proscriptions excluded should be neys not an advocate does Here counsel’s role as the section. justify impertinence. his client represent has the duty
“Although lawyer that offends conduct engage any he should zealously, Pa.Code of of the proceedings.” and decorum dignity A lawyer 7 EC 7-36. Cannon Responsibility, Professional or discourteous undignified “in engaging from precluded Id. DR 7- to the tribunal.” degrading which is conduct the sup- to the question 106(C)(6). response Appellant’s hearsay counsel understood court as to whether pression zeal- beyond situation moved to the given rule’s application and con- deliberately misconduct. Counsel ous advocacy with the sole competence the court’s sciously questioned I am dignity authority. its purpose offending “official mis- conduct constitutes challenged view that court sufficient to sustain an “officer” of the conduct” the Act. subsection I of under finding Justice, LARSEN, dissenting. dissent; contemptuous the conduct of the
I of sentence. judgment I would and thus affirm A.2d 113 Pennsylvania COMMONWEALTH of LONG, Appellant. Michael Pennsylvania. Supreme Court 21, 1979. Sept. Submitted 2,May Decided