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decided: May 30, 1980.


No. 331 January Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia at No. CP 77-04-757 to 764.


Vincent J. Ziccardi, Philadelphia, for appellant.

Charles W. Johns, Pittsburgh, Howland W. Abramson, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix and Larsen, JJ., concur in the result.

Author: Roberts

[ 489 Pa. Page 523]


On this appeal from denial of habeas corpus relief, appellant Lee Mandell, Esq. challenges his summary conviction for contempt under section II of 42 Pa.C.S. § 4131. Appellant contends that the evidence of record is insufficient to establish that he intentionally or willfully committed the allegedly contemptuous acts. We agree and accordingly, vacate the judgment of sentence and order appellant discharged.

On July 21 and July 22, 1977, appellant represented a criminal defendant at trial before the Hon. Bernard J. Goodheart. The court entered a verdict of guilty on July 22,

[ 489 Pa. Page 5241977]

, and postponed sentencing to September 28, 1977, to permit counsel an opportunity to prepare post-trial motions.*fn1 The court set September 14, as the deadline for appellant's written brief in support of post-trial motions. On September 21, 1977, Judge Goodheart notified appellant that the briefing deadline had passed and that the hearing on motions was scheduled for September 28, 1977, at 3:30 p. m.

At approximately 4:15 p. m. on September 28, appellant appeared for the hearing. He explained that his late arrival was due to an unforeseen delay at the parole board hearing he was attending. Appellant also submitted supplemental post-trial motions and a written brief. In a proceeding not transcribed, Judge Goodheart then held appellant in contempt and imposed a fine of $100 on the basis of "cumulative" violations of direct court orders.*fn2 Appellant filed a petition for writ of habeas corpus, which was denied after hearing. This appeal followed.*fn3

[ 489 Pa. Page 525]

By statute, the Legislature has authorized the use of summary contempt power.

"The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following cases:

I. . . .

II. [To] disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court;

III. . . ."

42 Pa.C.S. § 4131.*fn4 See generally Levine Contempt Case, 372 Pa. 612, 95 A.2d 222, cert. denied, 346 U.S. 858, 74 S.Ct. 72, 98 L.Ed. 371 (1953). "In a prosecution for criminal contempt, the Commonwealth has the burden of proving every element of the crime beyond a reasonable doubt." In re Johnson, 467 Pa. 552, 557, 359 A.2d 739, 742 (1976); see also In re Cogan, 485 Pa. 273, 401 A.2d 1142 (1979). One element of contempt under subsection II is that of intentional or willful commission of the allegedly contemptuous act. Commonwealth v. Clarence Washington, III, 466 Pa. 506, 353 A.2d 806 (1976). Because the requisite intent is not present in this case, appellant's conviction for contempt is not supported by the evidence.*fn5 As our prior decisions have held, "the mere showing of noncompliance with a court order or misconduct impeding the administration of justice is never sufficient, alone, to prove contempt." Commonwealth v. Haeffner, 470 Pa. 392, 396, 368 A.2d 686, 688 (1977); see also Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977). "Unless the evidence establishes an intentional disobedience or an intentional neglect of the lawful process of

[ 489 Pa. Page 526]

    the court, no contempt has been proven." Commonwealth v. Clarence Washington, III, supra, 466 Pa. at 509, 353 A.2d at 807 (1976). So too, other courts have reversed contempt convictions where the basis of the conviction is counsel's lateness, but there was no showing of intent. Commonwealth v. Giordano, 254 Pa. Super. 543, 386 A.2d 83 (1978); United States v. Delahanty, 488 F.2d 396 (6th Cir. 1973); In re Farquhar, 160 U.S.App.D.C. 295, 492 F.2d 561 (1973); In re Sykes v. United States, 144 U.S.App.D.C. 53, 444 F.2d 928 (1971).

Here, the prosecution for contempt was based only on appellant's missing a briefing deadline by two weeks, and arriving forty-five minutes late for a hearing.*fn6 Counsel stated the reasons for his tardiness. The Commonwealth introduced no evidence to establish either the invalidity of those reasons or the intent of appellant willfully to miss the scheduled hearing time. On this record, a summary conviction for criminal contempt under section II of the statute cannot be upheld.*fn7

Judgment of sentence vacated and appellant is discharged.

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