*1 76 dismissed, 935, 76 (1955), appeal
559,
609
127 N.E.2d
Chehalis,
of
City
v.
45
Kaul
833,
(1956);
100
1463
S.Ct.
L.Ed.
of Mil-
City
Froncek v.
616,
(1955);
MANDERINO, Justice, dissenting. Resources of Environmental Department
I The dissent. water is unsafe when drinking (DER) has never decided drinking it has ever decided it has been fluoridated nor not been fluoridated. If it had has it when water is unsafe drinking water way ever decided the issue —either —all according to the or not to be treated state would have the DER did can it said that How then DER’s decision. I would affirm Commonwealth not abuse its discretion? Court. dissenting
NIX, J., joins opinion. in this
Argued Jan. 1978. Decided Oct. 1978. Reargument Denied Nov. *4 Assn, Phila., Lerner, Defender,
Defender Benjamin Miller, Defender, Packel, Jonathan Asst. Public John W. Chief, Div., Appeals Philadelphia, appellant. for
F. Fitzpatrick, Goldblatt, Emmett Dist. H. Atty., Steven Law, Gitomer, Deputy Atty. Dist. for Philadelphia, Glen appellee. *5 O'BRIEN, ROBERTS, EAGEN, J., POM- and
Before C. LARSEN, NIX, JJ. EROY, MANDERINO and OPINION POMEROY, Justice. in Stanshine, adjudicated was
Appellant lawyer, Martin fine of five pay to of court and sentenced contempt criminal this involves a direct hundred dollars. Because case was appeal a direct pleas, in a court of common brought here.1 Stevenson, in a George a defendant
Appellant represented in judge the trial criminal case. The record discloses of the jury members case addressed the frequently instructions. panel jurors” his voir dire “good during duty to Part with the jurors’ of these instructions dealt court, in and an follow the law the by as determined “I point, judge to the trial stated: apparent effort stress the am the law. I am is no law save me.” the law. There other rested, had parties After the all the evidence was jury. began the He his appellant closing his address to gave following: with summation
“Thank Your Honor. you, way it here is gentlemen jury,
“Ladies and speak guys get First the good from works here on. you, that’s me. Then the district attorney speak gets today. you nothing later. will be after There will talk the Law morning, good jurors, “Tomorrow enough of the facts to up with and we will end with you, guilty.” make it look Mr. like Stevenson law before “Now, first I some of the point want out we into the facts.” get supplied.)
(Emphasis summation, judge At the trial the completion read back the reporter had the court jury excused the appeal Appellate pursuant Jurisdiction Court We hear this Act, II, 202(5), July 17 P.S. 223 art. § Act of P.L. No. 722(4) 211.202(5) (Supp.1978), superseded Section since 28, 1978). Code, 722(4) (effective June Judicial Pa.C.S. § remarks quoted Appellant above. was thereupon found *6 contempt.
I.
The power
impose summary punishment
for con
tempt,
courts, see,
while inherent
in all
e.
Levine Con
g.,
tempt Case,
612, 618,
denied,
222,
372 Pa.
95 A.2d
346
cert.
858,
72,
Case,
74
(1953);
“II. To neglect disobedience or by parties, jurors or witnesses of or to the of the process lawful court;
“HI. To the misbehavior of in the any person presence court, thereby obstructing the administration of justice.”
Appellant’s contention that the evidence was insufficient support the conviction must be evaluated in of this light statute.
Appellant first argues that he could not be convicted
under
subsection I of the Act of
supra.
disagree.
We
it has
Although
suggested
been
I does not
subsection
include
by
misconduct
see
attorneys,
Commonwealth
Gar
rison,
478 Pa.
386 A.2d
977 (1978) (plurality opin
ion);
Johnson,
552, 556,
In re
(1976),
Pa.
The
of the Code of Professional Re
Court,
sponsibility, which have been
Pa.R.
adopted by
D.E. 203(a);
(1970),
this Court. To the
Rule
of the
Rules of
Disciplinary
provides:
Enforcement
“Nothing
deny
contained in these rules shall be construed to
to
any
powers
necessary
other court such
as
court to
are
for that
it,
proceedings
maintain control over
power
conducted
such as the
before
contempt,
prohibit
nor to
bar associations from censur-
ing, suspending
expelling
membership
or
their members from
in
the association.”
Schofield,
supra,
See also In re
[******] of a
justness
the
“(4)
opinion
Assert his
as to
personal
witness,
.
. or as to
cause,
of a
.
credibility
the
”6
accused;
of an
.
.
.
guilt
the
or innocence
his cause with the side
Having thus identified himself and
on the
right,
judge
the trial
appellant proceeded
place
jurors,
morning, good
other side when he said: “Tomorrow
up
enough
the
will
we will end with
you,
Law
talk with
guilty.”
of the facts to make it look like Mr. Stevenson is
with
We
belief
equate
expression
personal
cannot
aby
be determined
proper advocacy;
quite properly
it could
the trial
a
prediction
fact finder that the remark was
in favor of
judge’s
of the evidence would
biased
summary
Discipli-
is condemned
prosecution.
by
Such a statement
cii, which
7-106(C)(6),
provides
Rule DR
438 Pa. at
nary
undignified
a
or discourteous
lawyer
“[ejngage
shall not
Accord, ABA
the tribunal.”
degrading
conduct which is
Justice,
Relat-
on
Project
Standards for Criminal
Standards
Draft,
ing
7.1(a), (c) (Approved
to the Defense Function §
1971).
well summarized
The reasons for this rule have been
lawyer
“The
of the
obligation
the Standards as follows:
for
to maintain
toward the court
‘not
respectful
attitude
office,’
give
but to
judicial
incumbent of the
temporary
judge
in the
recognition
by
due
held
position
attitude,
his
commu-
administration of law. The lawyer,
professional
courtroom the
nicates to the
in the
laymen
Id.
lawyer.”
relation which
between
judge
exists
omitted).
also
7.1(c),
(citation
See
Scouten’s
Commentary
§
Appeal,
This is not a case in which
language
ill-chosen
was
by
uttered
a layman who could not
necessarily
expected
Tulsa,
v. City
to know of
Eaton
standards,
courtroom
415
697,
1228,
U.S.
94
39
(1974),
S.Ct.
L.Ed.2d 693
or where an
attorney’s overstepping
advocating
of ethical boundaries in
his client’s cause must be viewed as de minimis. See Com
Garrison,
monwealth v.
Instead,
supra.
the accusation of
here,
deliberate,
bias
is similar
to
seemingly
to those found
Schiffer,
in United
be contemptuous
States
F.2d 91
351
denied,
cert.
(6th
1965),
1914,
Cir.
384
16
U.S.
86 S.Ct.
(1966),
L.Ed.2d 1017
in which counsel
accused the court
running a “drum head court martial” and a “star chamber
In
re
proceeding,”
Buckley,
and
10 Cal.3d
110
Cal.Rptr.
denied,
cert.
(1973),
II. above, contempt adjudi- As noted the made its lower court as hearing jury appellant of the as soon cation out of the con- The completed had his summation. entire adjudication of the following: sisted the opening read me back Reporter,
“THE Mr. COURT: the jury. lines of address to counsel’s court by was the (A portion repeated of the testimony [sic] reporter.) That was I said that. thought you
THE COURT: in of contempt You are highly contemptible statement. court. this I mean
MR. didn’t that. STANSHINE: statement to That is highly irresponsible THE COURT: You are fined 500 contempt make. in of court. You are to sir, authorities appropriate I to report you, dollars. will inquire irresponsibility. into your I appeal— MR. wish to STANSHINE: THE You will due course.” appeal COURT: here, procedure Appellant summary attacks the use of a argu- of broad his while we do not the outlines accept ment, particular in the we it has merit do think that circumstances of this case. are of court contempt
Summary proceedings
“the
steps of
adjudication
in which
omits the usual
those
the
answer, holding
process,
complaint
of
of
issuance
service
awaiting
evidence,
hearings, taking
listening
arguments,
briefs,
with a
goes
and all that
findings,
submission
States, supra,
v.
conventional court trial.”
United
Sacher
the
Although
at
at
“We think the distinction finds its reason any not more in the of the ability judge see and hear what happens open court than in the that unless such an danger open threat orderly procedure the court and such a flagrant defiance of the person and presence judge before the in the public ‘very hallowed place justice,’ *11 it, Blackstone has is not and instantly suppressed pun- ished, demoralization of the court’s will authority follow. Punishment without issue or trial was so contrary usual and ordinarily indispensable hearing before judg- ment due constituting process that that assumption the court saw that everything went on in court was open required to justify exception; but the need for imme- diate penal vindication of the of the court created dignity it.” States, Cooke v. 517, 536, United 267 U.S. 45 S.Ct. 390, 394, 767, 69 (1925). L.Ed. 773-74
It is precisely because “the necessities of the ad
ministration
justice
such
require
summary
.
dealing
a mode of vindicating
law,
majesty
in its active
[as]
manifestation, against
it,”
obstruction and outrage to
Offutt
v.
States,
11,
United
14,
11, 13,
11,
348 U.S.
75 S.Ct.
99 L.Ed.
(1954),
16
that
the summary contempt power has been
upheld against
attacks, see,
due process
e.
Cooke v.
g.,
States,
United
534,
supra,
390,
It is our considered case. necessary not this power was summary contempt rest one, neither the isolated Appellant’s remark was an record as a whole mani summation nor the appellant’s With the close judge. to the trial fests additional insults in the active participation his to the jury, address over; true, the Common while it is was nearly trial addi could have committed appellant wealth suggests, gestures or through acts statements tional contumacious that an trial, indicates later the record during stages that, in view of his the court lawyer by announcement to the remarks, would forthcoming citation would be In such conduct. addi have been a sufficient deterrent tion, in which to have been one clearly situation seems of appel could have countered the effect charge court’s pertinent lant’s It is to note addition remarks.10 *12 improperly or disrupt, conduct did not obstruct not affect While this factor does prolong proceedings. the not appellant’s the different of whether or very question contumacious, on wheth- bearing conduct was it does have a ques- present opportunity the an in the case. On was not afforded must, summary contempt punishment as a matter tion of a whether during process, the the trial that of due contempt be entered at the moment 497-98, occurs, Taylor Hayes, supra, v. 418 U.S. at see S.Ct. 41 L.Ed.2d at and cases cited therein. summary charge emphasize court’s 10. Such a would that the another; presented one side or evidence was not in order to favor any segment mentioning failing particular that in or to mention evidence, any emphasis placing or lack the had no intention of court it; solely summary presented upon with a view thereof to that the was deliberations; jury’s assisting jury that the recollec- the in its weight judgment regarding the tion of the evidence and its credibility governing. of the evidence were adjudication summary er the should have been nature.11
“We do not mean to
the discretion
imprison
the
judges within
mechanical
rules. The nature of
rigid
States,
supra,
v.
Offutt
United
it.”
problem precludes
Much weight
U.S. at
at
11.
of the use of the
When the situation is
summary contempt power
indisputable.
g., United States v.
E.
Wilson,
States,
supra;
supra;
v.
Sacher v. United
Commonwealth
Strickier,
(1978);
v. Afri
481 Pa.
Since
matter.
From
address one final
appropriate
we think it
summary
in a
case warrants
proper
the same
necessity
permissibility
also the
contempt
for
comes
punishment
saw the
who heard and
judge
of sanctions
imposition
absent,
is
the reason
necessity
misconduct. But when that
insult
object of
who has been the
allowing
judge
As a constitutional
over the
is also absent.
preside
hearing
reveals a “run
matter,
the record
required
recusal
is
when
offend
and the
ning,
judge
bitter
between
controversy”
v.
91 S.Ct.
er.
Mayberry
Pennsylvania,
Taylor Hayes,
also
L.Ed.2d
See
501-03,
supra note
909-10.
376
84
S.Ct.
(1964).
Judgment of sentence reversed and case remanded further proceedings consistent with this opinion. J.,
LARSEN, concurring joins opinion in this and files a opinion. Appellant proceedings prior to the sum- himself characterizes the Appellant mation as “hassle free.” Brief for at 6. Decorum, generally, Special Concerning
15. See Rules Courtroom supra 609.2(d): note “(d) Disqualification Judge judge alleged The before whom the contumacious conduct oc- hearing disqualified presiding plenary curred is or trial from at the (as distinguished summary action) except from with the defend- ant’s consent: (1) allegedly primarily of If the contumacious conduct consists personal judge; disrespect vituperative or to or criticism of n of, (2) judge’s testimony concerning the If the recollection or allegedly necessary adjudi- constituting contempt conduct for an cation; or (3) judge If the that in view of his recollection of the concludes solely on the basis events he would be unable to make his decision hearing.” of the evidence at the J., O’BRIEN, in the result. concurs in which MANDERINO, J., opinion a dissenting filed ROBERTS, J., joins. dissents, believing that the comments did not
NIX, J., conduct. amount to contumacious Justice,
LARSEN, concurring. However, I would Pomeroy’s I Mr. join opinion. Justice *15 state- T. McDermott’s Judge like to issue with James take There is no “I law. I the law. jury, ment to the am the am is a statement pompous save me.” This rather other law can beings being human the law. Human mortal. No law; is, justice. of the the cause only serve serve MANDERINO, Justice, dissenting. opinion Pomeroy’s plurality
I dissent
from Mr. Justice
Johnson,
in In re
which
refuses to follow our recent decision
(1976),
majority
case in which a
Pa.
Finally, grants subsection III the court to ensure power that lawsuits will be heard in a manner conducive to the just and resolution of the orderly presented. Any issues conduct ‘in the of the court’ which presence ‘obstructs administration of justice’ may punished be under grant power. The third subdivision no formal requires order, but incorporates implicit rather an standard decorum within the of the court. The conduct presence punished involved in this case could exercise of only the contempt power granted under subsection III . . .” (Emphasis added.)
Id.,
556-557,
We recently
súpra,
stated in Matter of
“Cases
of the administration of
finding an obstruction
of a conviction for
justice, as evidenced
the affirmance
by
III,
some idea
give
of court under subsection
contempt
See, e. g.,
Commonwealth
meant
by
phrase.
what is
Patterson,
with
(1973) (fighting
A.2d 90
452 Pa.
an unlaw-
they stopped
sheriffs in courtroom after
deputy
Common-
leave);
ful
criminal defendants
attempt by
(defend-
Snyder,
wealth v.
(1971)
Our narrow definition of the
“obstruction
with that
justice”
unanimously
administration of
accord
Court of the
accepted by
Supreme
the members of the
Little,
See,
Larry
In the Matter of
United States.
Indeed,
affirming
92 S.Ct.
beyond a reasonable doubt that his acts constituted obstruc- the hold- justice, tion of the administration of contravenes what ings Supreme regarding of the United Court States contempt can the crime of constitutionally constitute Little, of Larry In the Matter court in the state system. supra; 131, Holt v. Virginia, 14 L.Ed. S.Ct.
An examination of the United
Supreme
States
Court’s
Little,
decision in In the Matter of
Larry
supra,
highly
instructive.
In that case
Little was
himself
Larry
defending
charge
on a
of carrying a concealed
In his summa-
weapon.
tion to the
Little
.
jury,
“.
. made statements that the
court was biased and had
prejudged
case and that
petitioner
political
was a
Id. 404
prisoner.”
U.S. at
S.Ct. at
. must be on guard against confusing offenses to
their sensibilities with obstruction to the administration of
justice.”
Id. at
Involving contempt as it did reversal of a court, state courts not binding Little on us. are State appel- free conclude that conduct such as for which lant was held in contempt constitutes court unless it actually disrupts court See also proceeding. Holt v. Virginia, supra.
In this case the evidence fails any disruption to establish therefore, of court conduct proceedings, cannot be said to have obstructed the of justice, administration required by the Act before found guilty one be may contempt of court.
The order appellant should reversed and should be ordered discharged.
ROBERTS, J., joins opinion. this dissenting
Argued Jan. 1978. Decided Oct.