Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1969, Nos. 600, 601 and 609, and May T., 1969, No. 1202, in case of Commonwealth v. Leroy Fletcher.
Harold Yaskin, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellant.
Richard Max Bockol, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Chief Justice Bell.
On October 15, 1969, appellant appeared for trial on indictments charging robbery and related offenses. At that time he informed the court that he had filed, some two weeks earlier, a petition for the appointment of new counsel to replace the Voluntary Defender. The following then occurred: "The Court: State your reason for a court-appointed attorney? Leroy Fletcher [the defendant]: Well, I put in a petition two weeks ago. I have copies of it if you would like to see it. The Court: I will hear your petition right now. State your reasons right now? Leroy Fletcher: The reason I want court-appointed counsel, I feel the case is major and I was down here about a month ago on an assault and battery and the Defender was asking me about a deal. I didn't want the deal. The Court: This is two charges of aggravated robbery, not assault and battery. You say you don't want the Voluntary Defender? Leroy Fletcher: No. The Court: Mr. Yaskin [the Voluntary Defender], you are relieved of your duties.
There will be no court-appointed counsel. You will go to trial by yourself. The voluntary defender, Mr. Yaskin, will sit along side of you at the table. He will carry out whatever you wished carried out. Your petition for court-appointed counsel is refused. Now, Mr. Fletcher, do you have a pretrial motions [sic] to make at this time? Leroy Fletcher: I will make them later. The Court: You will make them now. Leroy Fletcher: I will make them later. The Court: It will be right now and not later. Leroy Fletcher: I have nothing to say at this time, your Honor. The Court: Very well. Your trial will start tomorrow morning with a jury. The Court is not taking any orders from you. Mr. Moldovsky [Assistant District Attorney]: May it please the Court, is Mr. Yaskin in particular assigned to sit or any assistant defender? The Court: He is, because he is the most familiar with the case. Notify the Jury Assembly Room to have thirty jurors ready tomorrow morning. The Crier: Very good, your Honor. The Court: Mr. Fletcher, are there any witnesses you wish summoned in your behalf? Leroy Fletcher: Nothing to say at this time. The Court: You will say an answer of yes or no? Leroy Fletcher: (No response.) The Court: Answer me, yes or no? Leroy Fletcher: (No response.) The Court: I adjudge you in Contempt of Court and sentence you to one year in prison. (3:15 o'clock p.m., October 15, 1969) Mr. Moldovsky: May we still proceed? The Court: We will proceed tomorrow morning. Mr. Yaskin: Your Honor, I had filed motions on behalf of the defendant -- preliminary motions. The Court: You will do whatever the defendant says to do. You will continue to sit along side of him at counsel table. That will be all for today. (Recess for the day.)"
Following the judgment of sentence of one year in prison, appellant prosecuted this appeal. We reverse the judgment of sentence, and discharge appellant.
Initially we note that the Commonwealth agrees that appellant has been denied his right to a jury trial in these proceedings. Under Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477 (1968), an accused is entitled to a trial by jury in all cases of "serious" criminal contempts. Since these proceedings occurred after Bloom, Bloom is applicable in the instant case. See DeStefano v. Woods, 392 U.S. 631, 88 S. Ct. 2093 (1968) (holding Bloom not retroactive). To determine whether a contempt is "serious" under Bloom, "we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense." Bloom, 391 U.S. at 211, 88 S. Ct. at 1487.*fn* The penalty imposed in the instant case was a prison sentence of one year, and the United States Supreme Court has recently held that "no offense can be deemed 'petty' for purposes of right to trial by jury where imprisonment for more than six months is authorized." Baldwin v. New York, 399 U.S. 66, 69, 90 S. Ct. 1886 (1970). Hence, appellant was entitled to a jury trial in these proceedings.
Our inquiry, however, does not stop there, for there need not be a remand for a jury trial if appellant's conduct could not be found contemptuous. The trial judge justified his actions on that ground that "[t]he refusal of the witness to answer questions in criminal proceedings when lawfully ordered to do so is contempt," citing as authority Commonwealth v. Bell, 145 Pa. 374 (1891).
Bell was a case where a witness, under oath, refused to testify on the grounds of privilege; the court, holding that the privilege could not be invoked, then found Bell in contempt of court. Such cases, however, ...