On Mаy 9,1975, Melvin Shaw was sentenced to concurrent terms of eleven and one-half to twenty-three months imprisonment following his conviction of theft by unlawful taking and conspiracy. He filed a direct appeal therefrom
On May 31, 1978, a private complaint was filed alleging that Shaw committed criminal offenses on June 22, 1977. Indictments were later returned charging Shaw with theft by failure to make required disposition of funds, theft by unlawful taking, theft by deception, and deceptive business practices. On February 6, 1979, Shaw entered a plea of guilty to deceptive business practices. The other charges were nolle prossed.
On or about February 22, 1979, the Delaware County Probation Office sent Shaw written notice that the guilty plea evidenced a parole violation and that a parole revocation hearing would be conducted on March 13, 1979. This notice was mailed to Shaw, but delivery was refused. However, Shaw was advised by his parole officer by phone of the parole revocation hearing.
At the hearing on March 13, 1979, Shaw appeared and moved that the proceedings be deferred until after disposition of a petition to withdraw his guilty,plea of February 6, 1979. This motion was denied and the hearing proceeded.
In connection with the plea to deceptive business practices, Shaw’s parole officer testified that, on May 31, 1978, a complaint was filed charging that, on June 22, 1979, Shaw was given a check for $3,000 as рayment on account for the purchase of an automobile but neither the car nor the money was delivered, and that, on February 6, 1979, Shaw plead guilty to deceptive business practices and was ordered to make restitution. The parole officer also testified that, in making restitution which was a condition of his parole, Shaw was required to pay $100 per month but had not fulfilled this condition. The record of the guilty plea was then introduced into evidence without objection.
Shaw did not challenge the еvidence of the guilty plea at the revocation hearing but challenged the authority of the court to proceed to determine if a parole violation had
Court reconvened at 2 p. m., but Shaw failed to appear. The court proceeded with another matter and reconvened the parole revocation hearing at 3 p. m. Shaw still had not arrived. The court then revoked Shaw’s parole and sentenced him to a term of not less than two nor more than four years imprisonment. A bench warrant was then issued. Three days later, the court, realizing the illegality of the sentence, entered an order vacating the sentence and then resentenced Shaw to pay a fine of ten dollars and the costs of prosecution, and to undergo imprisonment in the county prison for the balance of the term of his original sentence, to wit, ten months and twenty-six days.
On March 23, 1979, Shaw filed a petition for reconsideration of the order revoking parole alleging that the petition to withdraw the guilty plea to deceptive business practices had been granted and the charge had been nolle prossed.
On March 29, 1979, the court entered a citation against Shaw to show cause why he should not be held in contempt of court for his failure to appear at the hearing when it reconvened on March 13, 1979. No answer was ever filed.
At a hearing on the petition for reconsideration of the order revoking parole on April 10, 1979, Shaw’s attorney stated that Shaw had gone into hiding on March 13, 1979 and remained in hiding until March 23, 1979, the date of his hearing on the motion to withdraw the guilty plea. Shaw then testified аs to the circumstances of his guilty plea. He stated that the district attorney’s office had originally agreed to drop the charges made in the private complaint if he would pay the victim by February 5, 1979, the trial date, but he did not and the district attorney then prеpared to go
On the same day as the reconsideration hearing, the court held a hearing on the contempt citation. The Commonwealth presented testimony by Shaw’s parole officer as to Shaw’s failure to return to the parole revocation heаring. The parole officer testified that, several days after the revocation hearing, he received a telephone call from Shaw who indicated he was still in the area and had left the hearing because he wanted to straighten out his business and lessen the burden of business affairs on his wife. The Commonwealth then offered the record of the March 13, 1979 hearing and the record of the reconsideration hearing which contained an admission by Shaw that he consciously did not appear at the reсonvening of the revocation hearing.
Shaw then testified as to his reasons for not returning to the March 13, 1979 revocation hearing. He stated that his wife was more important than the court; that he feared jail; that he wanted to straighten out his business; and, that he wantеd to lift the burden from his wife. Shaw further stated that he had run his business from a phone booth and did not reappear until March 23, 1979, the date of the hearing on the petition to withdraw his guilty plea. Finally, he admitted that he did not attempt to contact the revocation hеaring judge to explain why he did not appear and that he made a conscious decision not to return to the revocation hearing.
The court found Shaw guilty of contempt of court and sentenced him to a term of three months in the county jail. This appeal followed.
Shaw contends the decision to revoke his parole was an abuse of discretion. Shaw first argues the revocation of his parole at the conclusion of his parole revocation hearing was improper because the revocation was based on a guilty plea which was under attack. This argument is meritless.
Shaw next argues that the court abused its discretion in denying his motion for reconsideration because at the time of the reconsideration hearing, the guilty plea had been withdrawn. Shaw thеrefore contends the evidentiary predicate on which the revocation of parole was based no longer existed.
The resolution of this question depends upon the reason for which the guilty plea was allowed to be withdrawn. Only if the reason for the withdrawal of the guilty plea brought into question the veracity of the admission of involvement in criminal activity included in the plea would the resultant withdrawal destroy the probative value of that admission to evidence criminal activity.
In
Commonwealth v. Kates,
Shaw’s next contention is that there was insufficient evidence to find him guilty of that type оf contempt of court for which imprisonment may be imposed. 1
“The power of, the several courts of this Commonwealth to issue attachments and to inflict summаry punishments for contempts of court shall be restricted to the following cases:
Hi He * * sf: Hs
(2) Disobedience or neglect by officers, parties jurors or witnesses of or to the lawful process of the court.”
2
Section 4132 of the Judicial Code, 42 Pa.C.S.A., provides the punishment of imprisonment for contempt as provided in 42 Pa.C.S.A. § 4131 “shall extend only to such contempts as shall be committed in open court, and all other contempts shall be punished by fine only.” In this regard, failure of a defendant to appear on schedulеd dates in a court convened and declared open for the transaction of its proper business has been held to be in “open court,” thus permitting that defendant to be punished by imprisonment where that failure is contemptuous, see n. 2.
Commonwealth v. Ferrara,
More refined, Shaw’s argument is that 42 Pa.C.S.A. § 4132 limits punishment by imprisonment for contempts under 42 Pa.C.S.A. § 4131 to situations wherein the contemptuous conduct occurs
in the presence of the court.
But 42 Pa.C.
Shaw also argues that the failure to provide a jury trial vitiates the contempt finding. However, our Supreme Court has held that, where the sentence actually imposed is not greater than six months, a defendant need not be afforded a jury trial.
Commonwealth
v.
Mayberry,
Shаw next contends that the sentence imposed, after the finding of a parole violation, of ten months and twenty-six days was excessive under the circumstances. We find this claim to be waived. Pa.R.Crim.P. 1410 provides that a motion to modify sentence must be filed within ten days оf the imposition of sentence, thereby giving the sentencing court the first opportunity to modify the sentence. This was not done; therefore, the issue has not been preserved for our review. See
Commonwealth v. Clair,
Shaw also alleges that his counsel, not present cоunsel, at sentencing for the parole violation, was ineffective for not making a motion for the sentencing judge’s recusal. Shaw argues that the comments of the sentencing judge displayed obvious animosity. Most of the judge’s comments which allegedly evidence animosity were made subsequent to March 16, 1979 or the date on which sentence was imposed following revocation of parole. Counsel cannot be faulted for failing to seek recusal at sentencing because of judicial conduct which occurred subsequent to sentencing. As to the comments made at sentencing, they were, for the most part, not such as would have presented counsel with an issue of arguable merit regarding recusal because, given the facts of this case, they merely represented, albeit strongly, what the facts established about Shaw and his conduct, and hence, can be viewed as statements of the reasons for the
Judgments of sentence affirmed.
Notes
. Technically, the contempt order was an independent final order from which a separate appeal should have been filed. But, since the Commonwealth does not advance this position and since the pro
Also, the Commonwealth argues that the Superior Court does not have jurisdiction from final orders of the Court оf Common Pleas in matters of direct criminal contempt. 42 Pa.C.S.A. § 722(4);
In re Ebo,
.
Commonwealth v. Garrison,