Defender Assn. of Philadelphia, Vincent J. Ziccardi, Defender, John W. Packel, Chief, Appeals Div., William Sayer, Asst. Defender, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Benjamin Levintow, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., joins and filed a concurring opinion. Pomeroy, J., filed a dissenting opinion. Nix, J., filed a dissenting opinion in which Jones, C. J., and Pomeroy, J., join.
This is an appeal from a six month prison sentence, summarily imposed after a finding of direct criminal contempt of court.*fn1 The courtroom misconduct found to be contemptuous occurred during the murder trial of Arthur Crawford. Appellant, also charged with this crime, testified for the prosecution at Crawford's first trial which resulted in a conviction.*fn2 Between Crawford's first and second trial, appellant was separately tried and acquitted for his alleged role in the killing.
During the second trial of Crawford, appellant was again called as a witness by the Commonwealth. Following appellant's refusal to testify, the court warned him that failure to testify would result in sanctions being imposed. Upon his continued refusal to testify, appellant was summarily held in contempt of court and sentenced to six months in prison.
Appellant advances several assignments of error. We find one to be persuasive and accordingly reverse*fn3 the judgment of sentence.
Appellant contends that the right to counsel is mandatory despite the summary nature of the proceedings. Appellant was not represented by counsel during the summary contempt proceeding.*fn4 In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972),
the Supreme Court expanded the Gideon principle*fn5 by holding that an indigent defendant may not be tried for an offense, even though it is classified as "petty," when he is subject to a term of imprisonment without being furnished counsel or without validly waiving counsel. We agree with appellant that Argersinger is controlling here, and so held in Commonwealth v. Abrams, 461 Pa. 327, 336 A.2d 308 (1975). In Abrams, which is directly on point, we said:
"During the contempt proceedings in the trial court [following his refusal to testify], [appellant] was without the assistance of legal counsel. Moreover, he was not advised of his right to such assistance and admittedly did not knowingly and intelligently waive this right. Under these circumstances, the proceedings violated due process and render the adjudication of contempt null and void.
See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and Commonwealth v. Bethea, 445 Pa. 161, 282 A.2d 246 (1971)."
Id. at 328-329, 336 A.2d at 309. Here, as in Abrams,*fn6 the summary conviction for contempt of court of a witness who was not represented by counsel cannot stand,
and the appellant's judgment of sentence must be vacated.*fn7
Judgment of sentence vacated, cause remanded for a new trial.
EAGEN, Justice (concurring).
While I agree with Mr. Justice Roberts that the absence of counsel during the contempt proceedings below renders the adjudication of contempt null and void, I believe it necessary to set forth these additional observations.
In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the United States Supreme Court held that "absent a knowing and intelligent waiver, no person may be ...