Nos. 393 & 394 January Term, 1976, Appeal from Judgments of Sentence for Contempt of Court, of the Court of Common Pleas, Philadelphia, Trial Division, Criminal Section, Nos. 1645 and 1947, August Term, 1975.
Defender Assn. of Phila., Benjamin Lerner, Defender, John W. Packel, Chief, Appeals Div., Harry S. Tischler, Asst. Public Defenders, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Randolph Goldman, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Mr. Justice Packel did not participate in the consideration or decision of this case. Manderino, J., joins this opinion and files a concurring opinion. Eagen, C. J., and O'Brien, J., concur in the result. Pomeroy, J., files a concurring opinion. Nix, J., concurs in the result.
While representing a defendant accused of rape, statutory rape, and corruption of a minor, appellant Bruce Sagel,
Esquire, was twice summarily held in criminal contempt. The trial court, Judge James T. McDermott, fined appellant $200 for the first offense and $50 for the second. Appellant contends that his contempt convictions are not supported by sufficient evidence.*fn1 We agree, reversed judgments of sentence and discharge appellant.*fn2
Appellant, an attorney for the Defender Association of Philadelphia, acted as defense counsel for Floyd Garrison in a trial held from March 24, 1976 to March 29, 1976. The Commonwealth sought to prove that Garrison had raped the 13 year-old daughter of the woman with whom Garrison had been living. Several times during the first day of trial, the court accused appellant of misconduct, but did not hold him in contempt until the complainant's mother took the witness stand. At that time, the district attorney requested that the court order Garrison to stand:
"MR. CUNNINGHAM: Would the court instruct the defendant to stand?
THE COURT: Has this witness been sworn?
MR. CUNNINGHAM: Yes, sir.
THE COURT: Very well. Have the defendant stand.
Q. . . . do you know this man standing now in this courtroom, to my left?
MR. SAGEL: Judge, that is absurd. That is absurd.
MR. SAGEL: That is absurd, and I object.
THE COURT: You're going to continue shouting at me, aren't you?
MR. SAGEL: I was not shouting, your Honor.
THE COURT: Don't tell me what you were doing. That is not the proper way to interpose an objection, by suggesting something to be absurd. Will you follow the rules or not?
THE COURT: Are you going to follow the rules or not?
THE COURT: I suggest you do so.
MR. SAGEL: May I be heard on my objection?
THE COURT: No, be seated.
MR. SAGEL: May my client be seated as well?
THE COURT: Did you hear what I said?
MR. SAGEL: May my client be seated as well, or is he to be flagellated in front of the jury?
THE COURT: What was that, sir?
MR. SAGEL: Is he to just stand, as if they don't know each other, then to be identified to the Jury?
THE COURT: Take the jurors out.
(The Jury was removed from the Courtroom at 2:19 P.M.)
THE COURT: Come to the bar of the Court, sir. You're in contempt of this Court, sir. You are fined $200. Take him into custody. We will recess.
MR. SAGEL: May I please be heard your Honor, on the record?
THE COURT: You will not be heard sir, by me in the fashion you choose to address me. You conducted yourself in a most unprofessional manner. You have been sitting here all morning shouting at this Court. I have all regard for your zealousness. You are entitled to struggle on behalf of your client, if you choose. But we have certain rules here you are apparently not familiar with.
If you have an objection to interpose, you do so, the Court rules on it, you be quiet after that. You are not to suggest to the Court that your client is being flagellated before the jury. You are in contempt, sir, and consequently you have been fined. Take him into custody. (Counsel was taken into custody. Recessed at 2:20 P.M.)."
Although there was obvious friction between the court and appellant during the next two days, the court did not hold appellant in contempt again until the third day of trial when a district attorney, Mr. Henry, was cross-examining a defense investigator. The subject of this cross-examination was an interview the district attorney thought the witness had conducted with the complainant. Appellant sought to point out that the interview had been conducted by Joseph Block, Esquire, another attorney of the Defender Association:
"MR. HENRY: This conversation that took place, how long did it take; five seconds?
A. I guess maybe fifteen minutes; I suppose twenty minutes.
MR. HENRY: You said you were out there twenty minutes -- ten minutes and just before on direct examination didn't you tell the jury --
MR. SAGEL: No your Honor, I think he's mistaken --
THE COURT: Do you have an objection.