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.
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
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
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 ...