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COMMONWEALTH PENNSYLVANIA v. DONALD DWAYNE RUBRIGHT. APPEAL THOMAS E. HARTING (TWO CASES). THOMAS E. HARTING (05/02/80)

decided: May 2, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD DWAYNE RUBRIGHT. APPEAL OF THOMAS E. HARTING (TWO CASES). IN RE THOMAS E. HARTING



Nos. 28, 29 January Term, 1977, Appeal from Order of Contempt of Court of Common Pleas of Lancaster County, Pennsylvania, No. 1034 of 1976 and Trust Book No. 43, Page 431

COUNSEL

Thomas G. Klingensmith, Lancaster County, Asst. Public Defender, for appellant.

D. Richard Eckman, Dist. Atty., Lancaster County, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Eagen, C. J., filed a concurring opinion. Roberts, J., filed a concurring opinion in which O'Brien and Kauffman, JJ., join. Nix and Larsen, JJ., filed dissenting opinions.

Author: Flaherty

[ 489 Pa. Page 359]

OPINION OF THE COURT

This direct appeal*fn1 is from an order of the Court of Common Pleas of Lancaster County holding appellant in contempt of court. For the reasons that follow, we reverse the judgment of sentence.

The relevant facts are as follows: Appellant, Thomas E. Harting, Esquire, is and was a public defender in Lancaster County. On Friday, July 16, 1976, in the course of representing a client at a suppression hearing, appellant made three objections to testimony given on direct examination by a police detective. The objections were as to hearsay utterances, and upon appellant's making his third objection, the following occurred:

MR. HARTING: I'm objecting to what Mr. Miller said.

THE COURT: Objection overruled. Do you understand the difference between hearsay for truth and falsity --

MR. HARTING: Yes I do. Do you understand it, Your Honor?

THE COURT: Yes I do. I'll speak to you later about this impertinence. Proceed.

MR. HARTING: Your Honor, I move that you replace yourself as a presiding judge and have another judge in this case.

THE COURT: I'll speak to you later. Overruled.

(Notes of Suppression Hearing at 13).

At the conclusion of the suppression hearing on Friday afternoon, the judge dismissed everyone from the courtroom except for appellant, a clerk and a court reporter. At that time, the following exchange took place:

THE COURT: Now Mr. Harting, I did not understand the remark you made to the Court as to whether I knew something about the law, or words to that effect. What was the reason for that remark which I take to be an impertinence?

[ 489 Pa. Page 360]

MR. HARTING: I took it to be an impertinence when you asked the same question to me, Your Honor. If we are to have any kind of proper discussion on whether or not you or I understand the law, I think we ought to be on equal terms. I think, Your Honor, you're a judge. You are paid forty thousand dollars a year. You should have the temperament and patience as that of an attorney, and when you ask questions and try to force attorneys and try to embarrass them in front of the court thing in front in open court, I think that you are not doing your judicial function.

THE COURT: And you think that question I asked you was a question which was deemed and ...


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