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COMMONWEALTH v. BENJAMIN FRANKLIN BETHEA (11/14/69)

November 14, 1969

COMMONWEALTH
v.
BENJAMIN FRANKLIN BETHEA, JR. ET AL., APPELLANT



Appeals, Nos. 384, 390 and 391, Jan. T., 1969, from judgments of Court of Common Pleas of Lancaster County, Quarter Sessions Journal No. 3, Miscellaneous pages 98 and 105, in case of Commonwealth v. Benjamin Franklin Bethea, Jr.; same v. William Boyer; same v. Robert Victor Boyer. Adjudications and judgments reversed.

COUNSEL

Daviel H. Shertzer, for appellants.

Henry J. Rutherford, First Assistant Distric Attorney, with him Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.

Before Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Contempt of court. Before Wissler, P. J., Johnstone, Jr., and Brown, JJ., without a jury.

Author: Eagen

Opinion by Mr. Justice Eagen, October 12, 1971:

The appellants herein were adjudged guilty of Contempt of Court in the court below. In each case, a prison sentence was imposed and these appeals were entered. The three cases were consolidated for argument before this Court and will be disposed of in this one opinion.

On April 10, 1969, the appellant, Benjamin Franklin Bethea, Jr., was adjudged quilty of Contempt of Court for conduct occurring on January 27, 1969, and was sentenced to imprisonment for a period of one year. On April 10, 1969, the appellant William Boyer, was adjudged quilty of Contempt of Court for conduct occurring both on January 24 and February 6, 1969,*fn1 and was sentenced to imprisonment for a period of one year. On April 10, 1969, the appellant, Robert Victor Boyer, was adjudged quilty of Contempt of Court for conduct occurring on April 10th, and was sentenced to imprisonment for a period of three months.

In each case a pretrial motion for a jury trial was denied, and the contempt adjudications were entered following a hearing before a court en banc.

The adjudications and sentences in the cases of Bethea and William Boyer must be reversed because the denial of a jury trial in these instances violated constitutional due process. See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444 (1968) and Boldwin v. New York, 399 ZU.S. 66, 90 S. Ct. 1886 (1970).

In Duncan, supra, the Supreme Court of the United States ruled that the Sixth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, requires that individuals accused of "serious offenses" must be afforded the right to trial by jury.*fn2 This includes those who are accused of criminal contempt. Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477 (1968). And an offense for which a term of imprisonment is imposed which exceeds six months is a "serious offense". Baldwin v. New York, supra.

We will not now detail the conduct of Bethea and William Boyer that caused the citations for contempt to be issued against them, but it is clear that these acts constituted criminal contempt. See Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956); Synder's Case, 301 Pa. 276, 152 A. 33 (1930); and Scouten's Appeal, 186 Pa. 270, 40 A. 481 (1898).

The trial resulting in the adjudication and sentence of Robert Victor Boyer also violated constitutional due process, but for reasons other than those present in the cases of Bethea and William Boyer. In this case the record discloses the following:

Robert Victor Boyer [a brother of William] was a spectator at the contempt hearings of Bethea and William Boyer. After the sentences were imposed he arose from his seat and proceeded to walk towards the door of the court room. Near the door, he said in a voice loud enough to be heard by the court reporter, "You will never do it Jack." One of the members of the court directed that Boyer be taken into custody "right away"; that he be searched and "secured"; and, that he be tried for contempt immediately. Since the accused was without counsel, Robert B. Going, Esq., who was also a spectator in the court room was appointed to represent him.

Mr. Going asked the court that he "be given a little time" to study the case, but this request was denied. Court was then advised that Boyer did not wish Mr. Going to represent him and wanted an opportunity to engage and consult his own personal attorney. The court then excused Mr. Going from participating in the case, but refused Boyer's request for time to engage his own attorney. The hearing then proceeded without Boyer having the assistance of counsel. At the conclusion of the hearing, Boyer was adjudged quilty of contempt and was sentenced to serve three months in prison.

Due process required that Boyer have the effective assistance of legal counsel during the proceedings. Assuming arguendo, that the court properly denied Boyer the opportunity of engaging private counsel, the counsel appointed by the court was at least entitled to a reasonable period of time to acquaint himself with the law and the facts in order to effectively represent his client.

Mr. Justice Cohen took no part in the decision of this case.

Mr. Justice Jones concurs in the result.

Disposition

Adjudications and judgments reversed.

Concurring and Dissenting Opinion by Mr. Chief Justice Bell:

I concur in the Majority's reversal of the sentence for contempt of Court imposed upon Robert Boyer. I also agree with the Majority Opinion that the conduct of the appellants Bethea and William Boyer clearly amounted to direct criminal contempt; but I cannot agree with the Majority's other holdings or conclusions. (1) A belligerent or boisterous or insulting or disruptive defendant (or witness or attorney) can and should be held for direct criminal contempt of Court, and (2) a sentence of six months or a year can be summarily imposed by the trial Judge (or trial Court) before Baldwin v. New York, 399 U.S. 66, without the right of such person to a jury trial, and (3) certainly Baldwin v. New York should not be held by this Court to be retroactive.

Because of the nature of this case and the important questions involved, I believe it is wise to set forth at some length the facts, as well as the pertinent and controlling principles of law.

William Boyer

William Boyer was tried (with five other persons, including Benjamin Franklin Bethea, Jr.) on charges of participation in a riot, assault and battery, and aggravated assault on a police officer in an affray, after a high school football game at McCloskey High School. On January 24, 1969, the jury returned a verdict of guilty on all three indictments. On February 6, 1969, two petitions for contempt of Court were filed by the District Attorney of Lancaster County. The first petition alleged and the Court found that after the jury had announced its verdict in Commonwealth v. William Boyer, and while it was being excused, appellant William Boyer said to the last juror, Eli S. Hart, as he was leaving the ...


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