decided: October 5, 1978.
COMMONWEALTH OF PENNSYLVANIA
GEORGE STEVENSON. APPEAL OF MARTIN STANSHINE, ESQ.
No. 358 January Term, 1976, Appeal from the Judgment of Sentence for Contempt of Court of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, entered during trial of Indictments Nos. 1382-1385, January Sessions, 1976
Defender Assn. of Phila., Benjamin Lerner, Defender, Jonathan Miller, Asst. Public Defender, John W. Packel, Chief, Appeals Div., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Glen Gitomer, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., joins in this opinion and files a concurring opinion. O'Brien, J., concurs in the result. Manderino, J., filed a dissenting opinion in which Roberts, J., joins. Nix, J., dissents, believing that the comments did not amount to contumacious conduct.
[ 482 Pa. Page 81]
Appellant Martin Stanshine, a lawyer, was adjudicated in contempt of court and sentenced to pay a fine of five hundred dollars. Because this case involves a direct criminal contempt in a court of common pleas, a direct appeal was brought here.*fn1
Appellant represented George Stevenson, a defendant in a criminal case. The record discloses that the trial judge in this case frequently addressed the members of the jury panel as "good jurors" during his voir dire instructions. Part of these instructions dealt with the jurors' duty to follow the law as determined by the court, and in an apparent effort to stress the point, the trial judge stated: "I am the law. I am the law. There is no other law save me." After all the evidence was in and the parties had rested, appellant gave his closing address to the jury. He began his summation with the following:
"Thank you, Your Honor.
"Ladies and gentlemen of the jury, here is the way it works from here on. First the good guys get to speak to you, that's me. Then the district attorney gets to speak to you later. There will be nothing after that today.
" Tomorrow morning, good jurors, the Law will talk with you, and we will end up with enough of the facts to make it look like Mr. Stevenson is guilty."
"Now, first I want to point out some of the law before we get into the facts."
At the completion of appellant's summation, the trial judge excused the jury and had the court reporter read back the
[ 482 Pa. Page 82]
remarks quoted above. Appellant was thereupon found in contempt.
The power to impose summary punishment for contempt, while inherent in all courts, see, e. g., Levine Contempt Case, 372 Pa. 612, 618, 95 A.2d 222, cert. denied, 346 U.S. 858, 74 S.Ct. 72, 98 L.Ed. 371 (1953); Snyder's Case, 301 Pa. 276, 152 A. 33 (1936); ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 7.1 (Approved Draft, 1972), is limited in this Commonwealth by the Act of June 16, 1836, P.L. 784, § 23, 17 P.S. § 2041 (1962).*fn2 That statute provides:
"The power of the several courts of this Commonwealth 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."
Appellant's contention that the evidence was insufficient to support the conviction must be evaluated in light of this statute.
Appellant first argues that he could not be convicted under subsection I of the Act of 1836, supra. We disagree. Although it has been suggested that subsection I does not include misconduct by attorneys, see Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971, 977 (1978) (plurality opinion); In re Johnson, 467 Pa. 552, 556, 359 A.2d 739 (1976), we think that such a construction of the statute ignores well settled principles recognized by both the legislature and this Court. "Persons admitted to the bar of the courts of this
[ 482 Pa. Page 83]
Commonwealth and to practice law pursuant to general rules . . . thereby hold the office of attorney at law." Judicial Code § 2521, 42 Pa.C.S. § 2521. Upon admission to the bar, each lawyer swears to "discharge the duties of my office with fidelity, as well to the court as to the client." Id. § 2522, 42 Pa.C.S. § 2522.*fn3 Our cases also recognize an attorney's position as an officer of the court. E. g., In re Shigon, 462 Pa. 1, 10-11, 329 A.2d 235 (1974); In re Schofield, 362 Pa. 201, 204 & n. 1, 66 A.2d 675, 677 & n. 1 (1949); Scouten's Appeal, 186 Pa. 270, 279, 40 A. 481 (1897). See also Pa.R.D.E. 103. We know of nothing indicating a legislative intent that the term "officers of such courts" in subsection I of the Act of 1836 is to be read in any context other than its common legal meaning, and we are not at liberty to construe it differently. Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1903(a), 1921(b) (Supp.1978).*fn4
[ 482 Pa. Page 84]
With the foregoing in mind we turn to the sufficiency of the evidence under subsection I. It is axiomatic that the trial court must accord defense counsel in a criminal case "every reasonable latitude"*fn5 in presenting his case to the jury through the "fearless, vigorous and effective performance of every duty pertaining to the office of advocate on behalf of every person whatsoever." Sacher v. United States, 343 U.S. 1, 13, 72 S.Ct. 451, 457, 96 L.Ed. 717, 726 (1952). This does not mean, however, that the trial judge is required to indulge any and all tactics or ploys in which counsel sees fit to engage. See generally Commonwealth v. Ryder, supra note 5; ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge §§ 5.4, 5.5, 5.7 and Commentary (Approved Draft, 1972). And while it must be admitted that the line between zealous advocacy and improper conduct may at times be a fine one, it is our view that appellant's conduct could properly be found to have crossed that line in this case.
The requirements of the Code of Professional Responsibility, which have been adopted by this Court, Pa.R.D.E. 203(a); 438 Pa. xxv (1970), apply to defense counsel as well as to prosecutors, see Commonwealth v. Starks, 479 Pa. 51, 56, 387 A.2d 829, 831 (1978); Commonwealth v. Harvell, 458 Pa. 406, 411-12, 327 A.2d 27, 30-31 (1974), and the violations of the Code in appellant's summation are to us evident. In referring to himself (and, necessarily, his client) as "the good guys," appellant violated Disciplinary Rule 7-106(C)(4), 438 Pa. xxv, ci-cii (1970), which provides:
[ 482 Pa. Page 85]
"(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
"(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, . . . or as to the guilt or innocence of an accused; . . ."*fn6
Having thus identified himself and his cause with the side of right, appellant proceeded to place the trial judge on the other side when he said: "Tomorrow morning, good jurors, the Law will talk with you, and we will end up with enough of the facts to make it look like Mr. Stevenson is guilty." We cannot equate this expression of personal belief with proper advocacy; it could quite properly be determined by a fact finder that the remark was a prediction that the trial judge's summary of the evidence would be biased in favor of the prosecution. Such a statement is condemned by Disciplinary Rule DR 7-106(C)(6), 438 Pa. at cii, which provides that a lawyer shall not "[e]ngage in undignified or discourteous conduct which is degrading to the tribunal." Accord, ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 7.1(a), (c) (Approved Draft, 1971). The reasons for this rule have been well summarized in the Standards as follows: "The obligation of the lawyer to maintain a respectful attitude toward the court is 'not for the temporary incumbent of the judicial office,' but to give due recognition to the position held by the judge in the administration of law. The lawyer, by his attitude, communicates to the laymen in the courtroom the professional relation which exists between judge and lawyer." Id. § 7.1(c), Commentary (citation omitted). See also Scouten's Appeal, supra, 186 Pa. at 279, 40 A. 481.
[ 482 Pa. Page 86]
This is not a case in which ill-chosen language was uttered by a layman who could not necessarily be expected to know of courtroom standards, Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974), or where an attorney's overstepping of ethical boundaries in advocating his client's cause must be viewed as de minimis. See Commonwealth v. Garrison, supra. Instead, the accusation of bias here, seemingly deliberate, is similar to those found to be contemptuous in United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965), cert. denied, 384 U.S. 1003, 86 S.Ct. 1914, 16 L.Ed.2d 1017 (1966), in which counsel accused the court of running a "drum head court martial" and a "star chamber proceeding," and In re Buckley, 10 Cal.3d 237, 110 Cal.Rptr. 121, 514 P.2d 1201 (1973), cert. denied, 418 U.S. 910, 94 S.Ct. 3202, 4 L.Ed.2d 1156 (1974), in which counsel charged, "[t]his Court obviously doesn't want to apply the law." See also MacInnis v. United States, 191 F.2d 157, 159 (9th Cir. 1951). We think it could be properly found that appellant, when he made the remarks in question, knew or reasonably should have known that his conduct was wrongful. See United States v. Seale, 461 F.2d 345, 368 (7th Cir. 1972).*fn7 In short, we believe that the remarks here were so far beyond the line that separates proper advocacy from conduct "degrading to the tribunal" as to be sufficient to warrant a contempt conviction for "official misconduct of [an] officer of [the] court" under subsection I of the Act of 1836, supra.*fn8
[ 482 Pa. Page 87]
As noted above, the lower court made its contempt adjudication out of the hearing of the jury as soon as appellant had completed his summation. The entire adjudication consisted of the following:
"THE COURT: Mr. Reporter, read me back the opening lines of counsel's address to the jury.
(A portion of the testimony [sic] was repeated by the court reporter.)
THE COURT: I thought you said that. That was a highly contemptible statement. You are in contempt of this court.
MR. STANSHINE: I didn't mean that.
THE COURT: That is a highly irresponsible statement to make. You are in contempt of court. You are fined 500 dollars. I will report you, sir, to appropriate authorities to inquire into your irresponsibility.
MR. STANSHINE: I wish to appeal --
THE COURT: You will appeal in due course."
Appellant attacks the use of a summary procedure here, and while we do not accept the broad outlines of his argument, we do think that it has merit in the particular circumstances of this case.
Summary proceedings for contempt of court are those in which the adjudication omits the usual steps of "the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial." Sacher v. United States, supra, 343 U.S. at 9, 72 S.Ct. at 455, 96 L.Ed. at 724. Although the exercise of this power has long been sanctioned, there is
[ 482 Pa. Page 88]
little doubt that the remedy is a drastic one. What Mr. Chief Justice Taft said concerning the distinction between summary and non-summary criminal contempts has relevance here:
"We think the distinction finds its reason not any more in the ability of the judge to see and hear what happens in the open court than in the danger that unless such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public in the 'very hallowed place of justice,' as Blackstone has it, is not instantly suppressed and punished, demoralization of the court's authority will follow. Punishment without issue or trial was so contrary to the usual and ordinarily indispensable hearing before judgment constituting due process that the assumption that the court saw everything that went on in open court was required to justify the exception; but the need for immediate penal vindication of the dignity of the court created it." Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 394, 69 L.Ed. 767, 773-74 (1925).
It is precisely because "the necessities of the administration of justice require such summary dealing . . . [as] a mode of vindicating the majesty of law, in its active manifestation, against obstruction and outrage to it," Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11, 16 (1954), that the summary contempt power has been upheld against due process attacks, see, e. g., Cooke v. United States, supra, 267 U.S. at 534, 45 S.Ct. 390, 69 L.Ed. at 773; Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888), and we therefore decline to adopt appellant's argument that summary adjudication is per se unconstitutional.*fn9
[ 482 Pa. Page 89]
But it is clear that the guiding principle should be "that only '"[t]he least possible power adequate to the end proposed"' should be used in contempt proceedings." United States v. Wilson, 421 U.S. 309, 319, 95 S.Ct. 1802, 1808, 44 L.Ed.2d 186, 194-95 (1975), quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231, 5 L.Ed. 242 (1821). Cf. In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975).
It is our considered judgment that the use of the summary contempt power was not necessary in this case. Appellant's remark was an isolated one, and neither the rest of appellant's summation nor the record as a whole manifests additional insults to the trial judge. With the close of his address to the jury, appellant's active participation in the trial was nearly over; and while it is true, as the Commonwealth suggests, that appellant could have committed additional contumacious acts through statements or gestures during later stages of the trial, the record indicates that an announcement to the lawyer by the court that, in view of his remarks, a contempt citation would be forthcoming would have been a sufficient deterrent to such conduct. In addition, this situation seems clearly to have been one in which the court's charge could have countered the effect of appellant's remarks.*fn10 It is pertinent to note in addition that appellant's conduct did not disrupt, obstruct or improperly prolong the proceedings. While this factor does not affect the very different question of whether or not appellant's conduct was contumacious, it does have a bearing on whether
[ 482 Pa. Page 90]
the contempt adjudication should have been summary in nature.*fn11
"We do not mean to imprison the discretion of judges within rigid mechanical rules. The nature of the problem precludes it." Offutt v. United States, supra, 348 U.S. at 15, 75 S.Ct. at 14, 99 L.Ed. at 16. Much weight should be given to the trial court's judgment in assessing the necessities of a particular situation. And we do not hold that, like the dog which must be accorded one free bite, a lawyer must be accorded one contemptuous remark before a judge may consider a summary contempt adjudication.*fn12 Indeed, an attorney as an officer of the court should be held to a higher standard of courtroom conduct than a layman. See N. Dorsen & L. Friedman, Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 149-52, 157-59 (1973). We hold only that where, as here, the record does not show a necessity for the imposition of summary punishment, the employment of such a procedure must be held an abuse of discretion.*fn13
[ 482 Pa. Page 91]
Since this case must go back to the lower court we think it appropriate to address one final matter. From the same necessity that in a proper case warrants summary punishment for contempt comes also the permissibility of the imposition of sanctions by the judge who heard and saw the misconduct. But when that necessity is absent, the reason for allowing the judge who has been the object of insult to preside over the hearing is also absent. As a constitutional matter, recusal is required when the record reveals a "running, bitter controversy" between the judge and the offender. Mayberry v. Pennsylvania, 400 U.S. 455, 465, 91 S.Ct. 499, 27 L.Ed.2d 532, 540 (1971). See also Taylor v. Hayes, supra note 9, 418 U.S. at 501-03, 94 S.Ct. 2697, 41 L.Ed.2d at
[ 482 Pa. Page 92909]
-10. Compare Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). The presence or absence of judicial bias is irrelevant, as shown by Snyder's Case, 301 Pa. 276, 289-90, 152 A. 33 (1936), in which we required recusal where personal interest was evident although bias was not. See also Johnson v. Mississippi, 403 U.S. 212, 215, 91 S.Ct. 1778, 29 L.Ed.2d 423, 427 (1971). In the case at bar there is no indication of a "running, bitter controversy",*fn14 and no personal interest on the part of the judge is evident. Nonetheless, the fact that the conduct here was on its face a personal insult to the trial judge requires, since "justice must satisfy the appearance of justice," Offutt v. United States, supra, 348 U.S. at 14, 75 S.Ct. at 13, 99 L.Ed. at 16, that the non-summary trial of this case be held by another judge, as was done, e. g., in In re Johnson, supra, 467 Pa. at 554-55, 359 A.2d 739. In this way evidence, to the extent relevant, of appellant's demeanor and intent may be presented on the record to, and not recalled by, the fact-finder, and any appearance of unfairness will be avoided.*fn15
Judgment of sentence reversed and case remanded for further proceedings consistent with this opinion.
[ 482 Pa. Page 93]
LARSEN, Justice, concurring.
I join in Mr. Justice Pomeroy's opinion. However, I would like to take issue with Judge James T. McDermott's statement to the jury, "I am the law. I am the law. There is no other law save me." This is a rather pompous statement for a mortal. No human being is the law. Human beings can only serve the law; that is, serve the cause of justice.
MANDERINO, Justice, dissenting.
I dissent from Mr. Justice Pomeroy's plurality opinion which refuses to follow our recent decision in In re Johnson, 467 Pa. 552, 359 A.2d 739 (1976), a case in which a majority of this Court concluded that the allegedly contemptuous conduct of an attorney practicing before the Court could be punished only by an exercise of the contempt power granted to the court by Subsection III of the Act of June 16, 1836. (17 P.S. § 2041 (1962)). In Johnson, we said that each of the Act's three subdivisions was intended to permit punishment of a different type of contemptuous conduct:
"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.
[ 482 Pa. Page 94]
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 courts to compel compliance with formal orders necessary or resulting from the trial of lawsuits.
Finally, subsection III grants the court power to ensure that lawsuits will be heard in a manner conducive to the just and orderly resolution of the issues presented. Any conduct 'in the presence of the court' which 'obstructs the administration of justice' may be punished under this grant of power. The third subdivision requires no formal order, but rather incorporates an implicit standard of decorum within the presence of the court. The conduct involved in this case could only be punished by exercise of the contempt power granted under subsection III. . ." (Emphasis added.)
Id., 467 Pa. at 556-557, 359 A.2d at 741-742.
A conviction under section three ". . . requires a finding of conduct that amounts to misbehavior in the presence of the court and a further finding that the misbehavior obstructed the administration of justice." Tenenbaum v. Caplan, 454 Pa. 1, 4, 309 A.2d 428, 430 (1973). Even if we accept the prosecution's contention that the remarks for which appellant was held in contempt constitute "misbehavior," the judgment must be reversed because the evidence fails to establish beyond a reasonable doubt that this assumed misbehavior obstructed the administration of justice, a necessary element for conviction. Matter of Johnson, supra, Tenenbaum v. Caplan, supra. In fact, in this case, there was clearly no obstruction of the administration of justice.
We recently stated in Matter of Johnson, supra,
"Cases finding an obstruction of the administration of justice, as evidenced by the affirmance of a conviction for
[ 482 Pa. Page 95]
contempt of court under subsection III, give some idea what is meant by the phrase. See, e. g., Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1973) (fighting with deputy sheriffs in courtroom after they stopped an unlawful attempt by criminal defendants to leave); Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971) (defendant interrupted Commonwealth's closing argument, refused to agree to behave in an orderly manner); Mayberry Appeal, 434 Pa. 478, 255 A.2d 131 (1969), vacated on other grounds, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) (defendant interrupted proceedings, called trial judge a 'hatchet man for the State,' 'a dirty S.O.B.,' and a 'dirty tyranical old dog')."
467 Pa. at 558, 359 A.2d at 742.
Criminal contempt was defined in Tenenbaum v. Caplan, 454 Pa. 1, 4, 309 A.2d 428, 430 (1973):
"'The statute [subsection III] requires that there be an obstruction of the administration of justice which is not present in this case. There was no interruption of the trial. There was no disruption of the proceedings. Under such circumstances, we cannot find that appellant's conduct obstructed the administration of justice.'"
467 Pa. at 558, 359 A.2d at 742.
As indicated by these cases, the complained of conduct must interfere with and disrupt the orderly process of a court before it will be deemed to be an obstruction of the administration of justice.
[ 482 Pa. Page 96]
Our narrow definition of the phrase "obstruction of the administration of justice" is in accord with that unanimously accepted by the members of the Supreme Court of the United States. See, In the Matter of Larry Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972). Indeed, affirming appellant's contempt conviction in the absence of proof beyond a reasonable doubt that his acts constituted obstruction of the administration of justice, contravenes the holdings of the United States Supreme Court regarding what can constitutionally constitute the crime of contempt of court in the state system. In the Matter of Larry Little, Page 96} supra; Holt v. Virginia, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed. 290 (1965).
An examination of the United States Supreme Court's decision in In the Matter of Larry Little, supra, is highly instructive. In that case Larry Little was defending himself on a charge of carrying a concealed weapon. In his summation to the jury, Little ". . . made statements that the court was biased and had prejudged the case and that petitioner was a political prisoner." Id. 404 U.S. at 554, 92 S.Ct. at 660, 30 L.Ed.2d at 710. A North Carolina state trial court held Little in contempt, concluding that his remarks ". . . were very disrespectful and tended to subvert and prevent justice." Id. at 554, 92 S.Ct. at 660, 30 L.Ed.2d at 710. The North Carolina state court also concluded that Little's statement ". . . directly tended to interrupt its proceedings and to impair the respect due the [courts] authority," and further ". . . that they reflected on the integrity of the court and tended to subvert and prevent justice," and that Little's remarks "were wilfull and intentionally used and that the words tended to interrupt and to impair the respect due its authority." Id. at 554, 92 S.Ct. at 660, 30 L.Ed.2d at 710. The United States Supreme Court reversed Little's conviction holding that the above quoted remarks did not constitute criminal contempt. The Supreme Court pointed out that there was no evidence that the defendant "actually disrupted the court proceeding," and said that to constitute contempt, the conduct "must constitute an imminent, not merely a likely, threat to the administration of justice." Id. at 555, 92 S.Ct. at 660, 30 L.Ed.2d at 710.
The Supreme Court concluded saying:
". . . [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be [persons] of fortitude, able to thrive in a hearty climate. Trial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice." Id. at 555, 92 S.Ct. at 660, 30 L.Ed.2d at 711 (Citations omitted.)
[ 482 Pa. Page 97]
Involving as it did the reversal of a contempt conviction in a state court, Little is binding on us. State courts are not free to conclude that conduct such as that for which appellant was held in contempt constitutes contempt of court unless it actually disrupts the court proceeding. See also Holt v. Virginia, supra.
In this case the evidence fails to establish any disruption of court proceedings, therefore, appellant's conduct cannot be said to have obstructed the administration of justice, as required by the Act before one may be found guilty of contempt of court.
The order should be reversed and appellant should be ordered discharged.