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COMMONWEALTH PENNSYLVANIA v. HENRY GASTON (03/18/75)

decided: March 18, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
HENRY GASTON, APPELLANT. APPEAL OF RONALD J. BROCKINGTON, ESQ.



COUNSEL

Harold L. Randolph, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurred in the result. Pomeroy, J., filed a dissenting opinion in which Jones, C. J., and O'Brien, J., joined.

Author: Manderino

[ 460 Pa. Page 386]

OPINION

The appellant, Ronald J. Brockington, was retained as defense counsel by Henry Gaston, who was arrested and charged with the illegal possession and sale of narcotic drugs. Because appellant had just been retained, a preliminary hearing scheduled for June 30, 1972, was continued to August 23, 1972. On that date, and on three other dates during the following two months, the preliminary hearing was scheduled but did not take place because appellant was engaged in other trials or hearings. On each occasion, appellant submitted a "busy notice" to the court and continuances were granted. When the last continuance was granted, the case was marked "Must be tried at next listing by the defendant's attorney. No

[ 460 Pa. Page 387]

    further continuances allowed." The preliminary hearing was scheduled for November 13, 1972.

On that date, appellant was also scheduled to be in another nearby courtroom for a suppression hearing in a homicide case in which he had been appointed to represent the defendant. As he had done on previous occasions, appellant submitted a "busy notice" on November 13, 1972, informing the court before whom the preliminary hearing was scheduled that he was engaged in the suppression hearing in another courtroom. Sometime during that morning, the preliminary hearing judge spoke by telephone with the suppression hearing judge who verified that appellant would probably be engaged in the suppression hearing for two days. Later that morning, in response to a request from the preliminary hearing judge, appellant appeared before the preliminary hearing judge during a short recess in the suppression hearing. Appellant said he was ready to proceed that day if he were excused by the suppression hearing judge. When asked by the judge to explain why he had not given advance notice of his schedule conflict to the district attorney's office, appellant said that he had no knowledge of the listing of the preliminary hearing until he read of it that morning in the Legal Intelligencer. Appellant was then summarily convicted of direct criminal contempt of court and fined two hundred dollars. This appeal followed.

Appellant contends that his conduct was not contemptuous, but was in accordance with the prevailing practice of the Philadelphia courts with respect to conflicting engagements. Appellant argues that he did not receive a notice of the preliminary hearing rescheduled for November 13, 1972, and that it was not until that morning that he realized that he had a schedule conflict. He said it was not until the recess that he learned of the court's prior order that "no further continuances would be allowed." Appellant asserts that since he had already

[ 460 Pa. Page 388]

    been attached to try the homicide case, and since there was no attachment outstanding in this case, he filed a "busy notice" in the latter courtroom as he had done previously.

"A direct criminal contempt consists of misconduct of a person in the presence of the court, or so near thereto to interfere with its immediate business, and punishment for such contempts may be inflicted summarily." ...


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