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COMMONWEALTH PENNSYLVANIA v. DAVID CHERRY. APPEAL HAROLD L. RANDOLPH (04/07/76)

decided: April 7, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID CHERRY. APPEAL OF HAROLD L. RANDOLPH, ESQ.



COUNSEL

Abraham J. Brem Levy, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty., for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Mr. Justice Pomeroy filed an Opinion in Support of Affirmance in which Mr. Chief Justice Jones and Mr. Justice Eagen joined. Mr. Justice Manderino filed an Opinion in Support of Reversal in which Mr. Justice O'Brien and Mr. Justice Roberts joined. Mr. Justice Nix did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 467 Pa. Page 162]

ORDER

Mr. Chief Justice Jones, Mr. Justice Eagen and Mr. Justice Pomeroy would affirm the order of the trial court. Mr. Justice O'Brien, Mr. Justice Roberts and Mr. Justice Manderino would reverse the order of the trial court. This Court being equally divided, the order of the trial court remains in effect.

Opinion IN SUPPORT OF AFFIRMANCE OF THE ORDER

POMEROY, Justice.

In the trial below, appellant, Harold L. Randolph, Esquire, was held in contempt of court for remarks he made to the jury during his closing argument in disregard of a direction by the trial judge not to make such comments. It was the considered opinion of the trial judge and the court en banc that this conduct transcended the bounds of permissible advocacy. The opinion in opposition to affirmance of the lower court's order would reverse the finding of contempt and excuse appellant's comments as "injudicious" remarks uttered in the course of his attempt zealously to represent his client. I cannot agree, and would affirm the order of the court below.

The Code of Professional Responsibility does impose upon a lawyer the duty to represent his client zealously within the bounds of the law. See Code of Professional Responsibility, Canon 7, 42 Pa.C.S. (Effective

[ 467 Pa. Page 163]

February 27, 1974). Since the effectiveness of our adversary system depends in large measure upon the fulfillment of this duty, lawyers must be allowed broad latitude to engage in vigorous advocacy. This latitude does not, however, provide a lawyer with a license to ignore an equally fundamental duty owed to the court. A lawyer is an officer of the court as well as an advocate of his client's cause. As such he is duty bound not to "engage in undignified or discourteous conduct which is degrading to a tribunal." Code of Professional Responsibility, DR 7-106(C)(6), EC 7-36, 42 Pa.C.S. (Effective February 27, 1974). See also ABA Standards, The Defense Function ยง 7.1. (1971). Such degrading conduct tends to undermine the public's confidence in the capacity of our judicial system to render objective judgments based upon a rational evaluation of properly considered evidence. While the line between zealous advocacy and engaging in discourteous conduct may be a fine one, it is a line which nevertheless must be observed if courts are to continue to adjudicate disputes in an atmosphere of trust and cooperation. In the instant case, this line has been clearly transgressed.

The standards which must govern the issuance of a contempt order have been well summarized by Chief Justice Horace Stern:

"Generally speaking, one is guilty of contempt when his conduct tends to bring the authority and administration of the law into disrespect. The right to punish for such contempt is inherent in all courts. When it is committed in its presence the court may, in punishing the offender, act of its own knowledge without further process, proof, or examination. Such power, 'although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions'. ...


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