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decided: July 6, 1976.



Joseph C. Spaulding, Timothy A. Crawford, Jack J. Levine, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Glenn S. Gitomer, Philadelphia, for appellee.

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

Author: Roberts

[ 467 Pa. Page 553]


We are asked, in this case, to review*fn1 the conviction of an attorney for contempt of court based upon remarks

[ 467 Pa. Page 554]

    made to the jury during the closing argument of a criminal trial. Appellant A. Benjamin Johnson represented Larry Howard at Howard's trial for murder and lesser included offenses. During closing argument, appellant made five statements which are the basis of his contempt conviction:

1. Appellant stated that he "found out the judge and the District Attorney had signals, where the District Attorney and the judge had a signal where when the judge didn't understand the question [objection by district attorney] where the District Attorney understood and the judge didn't understand it."

2. Appellant stated that he had not received a copy of a witness' statement which the district attorney claimed to have given him.

3. When the district attorney objected, saying that he had given appellant the statement, appellant said, "I have never seen a statement. I don't have to lie. I come from a good church family."

4. When the court said, "Mr. Johnson, the District Attorney says you have been given every statement," appellant stated, "I don't have to take his word, that's the whole point. The District Attorney says they gave me every statement that was taken. Maybe we don't believe him."

5. Finally, the court asked appellant how long his closing argument would be. Appellant responded, "I don't know how long I will be judge, I will speak as long as necessary."

A petition and rule to show cause why appellant should not be held in contempt of court containing the five statements was filed and granted on December 26, 1974, approximately four months after Howard's trial. At the hearing on the rule, held January 29, 1975, the Commonwealth offered into evidence authenticated portions of the trial transcript, the transcript of a hearing to correct

[ 467 Pa. Page 555]

    the notes of testimony, and the transcript of a conference held by the trial judge, the district attorney and appellant following closing arguments in Howard's trial. No testimony, other than that necessary to authenticate the transcripts, was offered or taken. Appellant demurred to the Commonwealth's case and offered no evidence of his own when the demurrer was overruled. The rule was made absolute on March 13, 1975, and appellant was sentenced to pay a $200 fine on March 21, 1975. Appellant appeals from the judgment of sentence.

Although appellant makes several arguments, we address only the sufficiency of the evidence to sustain the conviction. This necessarily involves a determination of the elements of the crime for which appellant was convicted.

The Commonwealth, appellant and the trial court, at the time of the hearing, all believed the prosecution to have proceeded under authority of subsection I of the Act of June 16, 1836, P.L. 784, § 23, 17 P.S. § 2041 (1962). That section, in its entirety, provides:

"The power of the several courts of this commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following cases, to-wit:

"I. To the official misconduct of the officers of such courts respectively;

"II. To disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court;

"III. To the misbehavior of any person in the presence of the court, thereby obstructing the administration of justice."

Although this Court has never addressed the scope of this statute, we believe that each of these subdivisions was intended by the Legislature to permit the punishment, by exercise of the contempt power, of a different

[ 467 Pa. Page 556]

    type of conduct. The distinction among the subsections is, then, to be made not by reference to the class of persons included within the subsection, but by reference to the conduct proscribed.*fn2

Subsection I permits the courts of the Commonwealth to compel their officers properly to perform their ministerial duties. For example, sheriffs must serve process, court reporters must record and transcribe testimony and prothonotaries must receive, date and file documents. Misconduct of any of these prescribed duties, which are imposed upon the individual by virtue of the official position held, is made punishable by subsection I. There need be no formal order directing the individual to do an act nor does the misconduct have to be within the presence of the court. Subsection I authorizes the court to punish the misconduct of any of the day to day functions necessary to the administration of justice.

Subsection II permits a court to punish "disobedience or neglect" of its "lawful process." Parties must obey decrees and orders, witnesses must appear when subpoenaed, jurors must present themselves when called. There must be a formal order directed to a specific person or group of persons, but the refusal to comply need not occur in the court's presence. Subsection II permits the ...

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