Defender Association of Philadelphia, Benjamin Lerner, Defender, William Stewart, First Asst. Public Defender, John W. Packel, Asst. Public Defender, Chief, Appeals Div., for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Glen S. Gitomer, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Roberts, J., files a Dissenting Opinion in which Manderino, J., joins.
Judgment of sentence affirmed.
ROBERTS, Justice, dissenting.
The trial court's opinion reveals that appellant was held in criminal contempt on the basis of facts not appearing in the record. It is axiomatic that a criminal conviction cannot be upheld when sufficient evidence to support the conviction does not exist in the record. See, e. g., Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973). This proposition applies with equal force to contempt. Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976) (plurality opinion). Because facts recited in a court opinion cannot serve as a substitute for facts of record, Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974), insufficient evidence exists to support appellant's conviction. Therefore, I must dissent.
Appellant, a member of the M.O.V.E. organization, was one of several individuals convicted in Municipal Court of obstruction of justice, disorderly conduct, failure to disperse and conspiracy. During a trial de novo in the court of common pleas, appellant was held in criminal contempt. The record shows that at this trial certain events occurred, noted by the stenographer as "disturbances" interspersed by orders of the court that the courtroom be cleared. The record is void of any facts describing appellant's participation, if any, in these events.
The next morning, appellant refused to enter the courtroom when his case was called. Upon learning of appellant's refusal, the court ordered appellant apprehended and brought before the court. The court then cited appellant and his co-defendants for criminal contempt:
"All counsel are present. Gentlemen, this Court has the authority to protect against those who disregard it [sic] dignity, its authority, and disobey its orders. . . .
I find that each of you have [sic] defied the orders of this Court. You have challenged the ...