decided: October 16, 1974.
COMMONWEALTH OF PENNSYLVANIA
RICHARD O. J. MAYBERRY, APPELLANT
Jack J. Levine, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief Appeals Div., Stephen J. Mathes, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., dissents. Pomeroy and Nix, JJ., concur in the result of Part I of this Opinion and join Part II. Manderino, J., concurs in the result.
[ 459 Pa. Page 94]
This is an appeal from judgments of sentence imposed after a 1972 finding that appellant was in contempt of court on four occasions during his 1966 trial for perjury. Six months imprisonment was assessed as punishment for each of the four acts of contempt. Because the sentences actually imposed exceeded six months and because appellant, despite a timely request, was not afforded the opportunity to be tried by jury, we reverse and remand
[ 459 Pa. Page 95]
for a new trial. See Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974).
The history of the present appeal begins with appellant's 1961 plea of guilty to charges of prison breach. Two years later appellant filed a petition for habeas corpus in the Philadelphia Court of Common Pleas, claiming that his 1961 plea was coerced; this claim was denied. As a result of representations made by appellant in his petition, he was charged with committing perjury. In 1966, he was tried for perjury and a jury found him guilty.*fn1
At the conclusion of the perjury trial, the trial court found that appellant had been in contempt of court on five occasions during that trial. For each of these five acts of contumacious behavior, sentence was imposed at one year imprisonment, with the sentences to run consecutively.*fn2 This Court affirmed. Commonwealth v. Mayberry, 435 Pa. 290, 255 A.2d 548 (1969).
Appellant later sought federal habeas corpus relief*fn3 on the basis of Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).*fn4 That decision
[ 459 Pa. Page 96]
held that where a trial court "becomes embroiled in a running, bitter controversy" and does not act until the end of trial,*fn5 "by reason of the Due Process Clause of the Fourteenth Amendment a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor." Id. at 465, 466, 91 S.Ct. at 505. See also Taylor v. Hayes, 418 U.S. 488, 495-501, 94 S.Ct. 2697, 2702-2704, 41 L.Ed.2d 897 (1974). Compare Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1973). The federal habeas judge agreed with appellant's claim and ordered that he be retried before a judge other than the one who presided at the perjury trial. United States ex rel. Mayberry v. Johnson, Civil No. 71-1862 (E.D.Pa., filed Sept. 22, 1971). The Commonwealth took no appeal from this ruling.
Prior to retrial appellant moved that the proceedings commence by preliminary hearing, indictment, and complaint. This motion was denied.
[ 459 Pa. Page 97]
On March 29, 1972, a second trial was held with another judge from the Philadelphia Court of Common Pleas presiding. Appellant timely asserted that he had a right to be tried by jury. This motion was refused and the trial court found him guilty of four acts of contemptuous behavior.*fn6 Appellant was this time sentenced to six months imprisonment for each contempt, with the sentences to run consecutively for a total of twenty-four months imprisonment.*fn7 This appeal ensued.*fn8
The Constitution*fn9 requires that one accused of a "serious offense" be given a jury trial. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Cf. District of Columbia v. Clawans, 300 U.S. 617, 624-625, 57 S.Ct. 660, 661-662, 81 L.Ed. 843 (1937); Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (1888). No exception to this constitutional first principle is made for criminal contempt, direct or indirect, because "[c]riminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both." Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968).*fn10 Indeed, Bloom
[ 459 Pa. Page 98]
specifically held that the right to jury trial "must also be extended to criminal contempt cases." Id. at 208, 88 S.Ct. at 1485. But Bloom also made clear that "criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved." Id. at 211, 88 S.Ct. at 1487. See also Taylor v. Hayes, 418 U.S. 488, 496, 94 S.Ct. 2697, 2702, 41 L.Ed.2d 897 (1974).
The question becomes whether the crime charged, criminal contempt or otherwise, is "serious."*fn11 The test is clear. The decisions of the Supreme Court of the United States "have established a fixed dividing line between petty and serious offenses: those crimes carrying more than six months sentence are serious and those carrying less are petty crimes." Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974). See Taylor v. Hayes, supra; Baldwin v. New York, 399 U.S. 66, 68-69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970); Frank v. United States, 395 U.S. 147, 149-150, 89 S.Ct. 1503, 1505-1506, 23 L.Ed.2d 162 (1969); Commonwealth v. Patterson, 452 Pa. 457, 463 n. 3, 308 A.2d 90, 93-94, n. 3 (1973); Commonwealth v. Bethea, 445 Pa. 161, 282 A.2d 246 (1971); Commonwealth v. Fletcher, 441 Pa. 28, 269 A.2d 727 (1971).
Ordinarily this task is accomplished by viewing the permissible sentences authorized by the Legislature for a crime. Baldwin v. New York, supra; Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); see Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966); cf. Louisiana State Board of Medical Examiners v. Bates, 258 La. 1049, 249 So.2d 127 (1971). Where, however,
[ 459 Pa. Page 99]
the Legislature has not fixed the maximum penalties that may be imposed on a conviction for a crime, then in order to determine whether a jury trial is required, a court must consider the sentence actually imposed. Codispoti v. Pennsylvania, supra, at 515, 94 S.Ct. at 2693; Taylor v. Hayes, supra, at 495, 94 S.Ct. at 2701-2702; Frank v. United States, supra; Cheff v. Schnackenberg, supra. Cf. In re Dellinger, 370 F.Supp. 1304, 1307, n. 5 (N.D.Ill.1973). If the sentence actually imposed is greater than six months, then the accused must be afforded an opportunity to be tried by jury. Codispoti v. Pennsylvania, supra; Baldwin v. New York, supra; Cheff v. Schnackenberg, supra, at 379-380, 86 S.Ct. at 1526.
In this Commonwealth the Legislature has not indicated the limits of imprisonment that may be imposed as a sentence for a conviction of direct criminal contempt. See Act of June 16, 1836, P.L. 784, §§ 23, 24, 17 P.S. §§ 2041, 2042 (1962). Therefore, our inquiry turns to the sentence actually assessed.
Here, the sentences of incarceration totaled twenty-four months. Yet, despite appellant's timely request, he was denied his constitutional right to a jury trial. Codispoti v. Pennsylvania, supra. Appellant, therefore, is entitled to a new trial, this time before a jury of his peers if he so desires.
The Commonwealth argues that since each sentence was only for six months, a jury trial is not required. See Commonwealth v. Snyder, 443 Pa. 433, 440-442, 275 A.2d 312, 317 (1971). However, this argument was nicely laid to rest by the United States Supreme Court in Codispoti.
"We find unavailing [the] contrary argument that petitioners' contempts were separate offenses and that, because no more than a six months' sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding
[ 459 Pa. Page 100]
[this] characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired."
418 U.S. at 517, 94 S.Ct. at 2693-2694. See also United States v. Seale, 461 F.2d 345, 352-356 (7th Cir. 1972).
In this case, the individual contempts arose at a single trial, were charged by a single judge, were tried in a single proceeding, and the individual sentences were aggregated. This appellant thus falls within the Codispoti rule.
Although Codispoti was announced subsequent to appellant's second trial, it is plain that he is to be given the benefit of that decision. "The general rule . . . is that an appellate court must apply the law in effect at the time it renders its decision." Thorpe v. Housing Authority, 393 U.S. 268, 281, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969).*fn12 The United States Supreme Court has recently and unanimously reaffirmed this principle.*fn13
[ 459 Pa. Page 101]
L.Ed.2d 632 (1972); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948).*fn14 But no need exists to fit criminal contempt, a crime sui generis, into the mold of procedures created for more commonplace offenses.*fn15 Taylor v. Hayes, supra; Groppi v. Leslie, supra; see United States v. Bukowski, 435 F.2d 1094, 1099-1102 (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). See also United States v. Seale, 461 F.2d 345, 356 n. 19 (7th Cir. 1972). This Court has in the past recognized that due process is a flexible concept and not one wed to fixed formalities. E. g., Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764, cert. denied, 404 U.S. 1000, 92 S.Ct. 563, 30 L.Ed.2d 552
[ 459 Pa. Page 103]
(1971). With this the United States Supreme Court is in complete agreement. See Groppi v. Leslie, 404 U.S. at 500, 92 S.Ct. at 585; Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 894-895, 81 S.Ct. 1743, 1748-1749, 6 L.Ed.2d 1230 (1961); Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960).
Certainly the Constitution does not require any particular mode of informing an accused of the charges against him. Taylor v. Hayes, 418 U.S. at 495-500, 94 S.Ct. at 2702-2704; Groppi v. Leslie, 404 U.S. at 502, 92 S.Ct. at 586 (1972); Fed.R.Crim.P. 42(b). Neither is there a constitutional right, federal*fn16 or state,*fn17 to a preliminary hearing. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); see Commonwealth v. McCloskey, 443 Pa. 117, 131-133, 277 A.2d 764, 771-772, cert. denied, 404 U.S. 1000, 92 S.Ct. 563, 30 L.Ed.2d 552 (1971). Nor does the United States Constitution require states to proceed against an accused by means of a grand jury indictment or presentment.*fn18
[ 459 Pa. Page 104]
preliminary hearing,*fn21 and indictment for charges of criminal contempt. This is not so. Our rules were not written to supersede the legislative direction that summary procedures may be used to deal with contempts which, inter alia, involve "the misbehavior of any person in the presence of the court, thereby obstructing the administration of justice." Act of June 16, 1836, P.L. 784, § 23, 17 P.S. § 2041 (1962); see id. § 24, 17 P.S. § 2042 (1962). And see Commonwealth v. Lofton, 389 Pa. 273, 133 A.2d 203 (1957). As we said in the context of investigating grand juries, "The Rules of Criminal Procedure at present simply do not concern themselves with this long established practice, nor do they foreclose any of the other traditional exceptions to proceeding by a preliminary
[ 459 Pa. Page 106]
hearing." Commonwealth v. McCloskey, 443 Pa. 117, 129, 277 A.2d 764, 770 (footnote omitted), cert. denied, 404 U.S. 1000, 92 S.Ct. 563, 30 L.Ed.2d 552 (1971); see Commonwealth v. Bunter, 445 Pa. 413, 420-422, 282 A.2d 705, 708-709 (1971). Similarly, our criminal procedural rules are not designed for the initiation of summary criminal contempt proceedings.
However, the Constitution does require that a contemnor "should have reasonable notice of the specific charges and opportunity to be heard in his own behalf." Taylor v. Hayes, 418 U.S. at 499, 94 S.Ct. at 2703. Accord, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950);*fn22 Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129 (1938); Grannis v. Ordean, 234 U.S. 385, 394-396, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914); In re Dellinger, 370 F.Supp. 1304 (N.D.Ill.1973).
On retrial, appellant is to be given the opportunity to be tried by jury. And he must be afforded reasonable notice of the specific contempt charges against him.
Judgment of sentences reversed and a new trial granted consistent with this opinion.