No. 367 No. 368 January Term, 1978, Appeals from Order of August 4, 1978, of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at No. M.C. 78-08-680
William Nugent, Asst. Dist. Atty., David Rudovsky, Philadelphia, for appellant in case no. 367.
Steven H. Goldblatt, Deputy Dist. Atty. -- Law, Philadelphia, for appellant in case no. 368.
Charles W. Johns, Howland W. Abramson, Richard P. Haaz, Philadelphia, for appellee.
Eagen, C.j., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., files a dissenting opinion in which Flaherty, J., joins. Larsen, J., files a dissenting opinion in which Flaherty, J., joins.
On August 4, 1978, appellant, William Nugent, Esquire, an Assistant District Attorney in the Philadelphia County District Attorney's office was found guilty of direct criminal contempt in the Court of Common Pleas of Philadelphia County. As a result of the contempt conviction, appellant was prohibited, for a period of six months, from practicing in the courtroom of the trial judge, I. Raymond Kremer. This direct appeal followed.*fn1
The facts are as follows. On August 3, 1978, appellant and Bruce Sagel, Esquire, another Assistant District Attorney, were representing the Commonwealth in the cases against three defendants, Lennis Pompey, Alfred Anderson and Ronald Moffatt, all of whom had entered pleas of guilty to numerous burglary and theft charges. After Moffatt had tendered his plea, the trial court asked if Moffatt had a prior record. When Moffatt's attorney indicated that Moffatt was a first offender, Sagel informed the court that Moffatt had an outstanding fugitive warrant from New Jersey. Sagel also criticized Moffatt's attorney for misrepresenting his client's record. The trial court had some question as to whether it could consider the warrant and asked Sagel to research the applicable law and bring it to court the next day along with all documents pertaining to Moffatt's criminal record. When Sagel informed the court that he could not be in court, appellant agreed to fulfill the court's request.
The following morning, appellant informed the court that the F.B.I. could not deliver the requested documents until sometime that afternoon. After chastising appellant for not having the documents and then launching into an attack about the conduct of the office of the District Attorney, the trial court referred to his opinion in Commonwealth v. Brooks*fn2 and informed appellant that the court did not "wish to hear another solitary word from the District Attorney" unless appellant apologized to Moffatt's attorney for Sagel's statements the previous day. The following exchange then occurred:
"MR. NUGENT: Your Honor, I take exception to that.
"THE COURT: You may sit down, young man.
"MR. NUGENT: Sir. I will sit down. But I do take exception --
"THE COURT: I'm not interested in your exception, and you are not in this case. Now, sit down.
"MR. NUGENT: Very well, Your Honor."
The court then began questioning Moffatt about his criminal record, when the following occurred:
"THE COURT: Then the District Attorney's statement that you had a record was not accurate; is that correct?
"DEFENDANT MOFFATT: I guess so.
"THE COURT: You have never been convicted?
"DEFENDANT MOFFATT: No, Your Honor.
"MR. NUGENT: Your Honor --
"THE COURT: I don't want to hear from you, Mr. Nugent. You are not in this case. Don't misunderstand me. I will make it clear. I have ordered and directed that you are not in this case. I have not granted leave for Mr. Sagel to withdraw.
"Now, I am going to spell it out, so we understand each other. It is well known that I do not use the item of contempt. I have ordered you to sit down and stay out of this case. There is only one thing left for you to do. You may return to your office and bring anybody you want to, but I have ordered you not to open your mouth again.
"Now, there is only one option you have open to you after that. Under the decision in Commonwealth versus Schofield, you owe only a duty of respectful submission to this Court. Under the situation in Commonwealth versus Schofield, if you do not obey my order, it is my intention to hold you in contempt if you violate that order. From that order you owe a duty of respectful submission and only a right of appeal. In the event that I hold you for contempt, if I sentence you to a term less than six months, that ...