No. 263 January Term, 1977, Appeal from the December 15, 1976 Adjudication of Criminal Contempt and Sentence Thereon Imposed Immediately by the Honorable Albert F. Sabo of the Philadelphia Court of Common Pleas, Misc. No. 1977-00-0606.
Mark E. Kogan, Norris E. Gelman, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Larsen, Justice, dissenting. Nix, Justice, dissenting.
Appellant Dennis J. Cogan, Esq. entered an appearance as defense counsel on behalf of a client charged with murder of the first degree. On December 15, 1976, the Court of Common Pleas of Philadelphia, Sabo, J., conducted a suppression
hearing. Over the course of the hearing, there were several exchanges between counsel and the court. At the end of one exchange appellant was summarily convicted of criminal contempt of court and fined $100. On appeal, we are asked only to review whether the record supports the conviction. We reverse.
At the suppression hearing, the defendant disputed that his arrest was based on probable cause. The defendant had been arrested on the basis of statements obtained during the interrogation of another suspect. A police officer was called by the Commonwealth at the suppression hearing to describe the suspect's interrogation. The officer's cross-examination was interrupted by an exchange between appellant and the court. To properly evaluate the consequences of appellant's conduct on the orderly progress of the suppression hearing, we must refer to the relevant portions of the record.
"MS. TEMIN [District Attorney]: Objection, your Honor.
MR. COGAN: It goes to credibility, your Honor.
MS. TEMIN: It is argumentative, your Honor.
MR. COGAN: Credibility is . . .
THE COURT: I think he has already testified that he does this as a matter of course. He doesn't tell them everything. He just gives them a few points, so that if there is anything left out later on that he knows about, he can tell whether or not the person that he is interviewing is giving him the whole story or not. Isn't that what you said before?
THE COURT: I haven't made any determination, but you are asking for something else.
MR. COGAN: All right. If it is your position . . .
THE COURT: I will have to rule on the other thing, and I can't do that right now because I don't even know what it is.
MR. COGAN: If it is your position that the police did not have to have probable cause . . .
THE COURT: I didn't say that. I said if he is implicated by another co-defendant, what in the world do you expect him to do but to bring him in for questioning?
MR. COGAN: I am not saying they didn't have the right to do that.
THE COURT: Well, what are you saying?
MR. COGAN: I would say it if you would stop interrupting me, Judge. I have been trying to get it out for the last ten minutes.
THE COURT: Please don't tell me to stop interrupting you. I will hold you in contempt if you say that once more to me. You can make all the argument you wish, but watch your tone as you speak to me. You will remember that I am the judge of this courtroom, and you are merely counsel for the defense. Remember that.
MR. COGAN: I am not unmindful of that, sir.
THE COURT: Well, I think you are. I am trying to understand you, so I can make an intelligent decision. Now, go ahead.
MR. COGAN: I don't see how that answers my questions about why he didn't record it. He recorded . . .
THE COURT: The fact you are making, he admits he didn't record it.
MR. COGAN: I am asking if there is any particular reason why he didn't.
THE COURT: I don't know that that is material, Counselor. He didn't record it, and that is it, period.
MR. COGAN: Note my exception. If I am not permitted to ask that question, fine."
The dispute concerning probable cause arose again later.
"MR. COGAN: The question is whether they had probable cause in order to do that.
THE COURT: Well, what is this Court supposed to do . . .
MR. COGAN: It is not my purpose to tell the Court or police how to go about doing their job. The Supreme Court set those standards.
THE COURT: They talk about probable cause, they are talking about something else, but when you have somebody who is implicated in a crime that implicates someone ...