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decided: October 9, 1981.


No. 148 and 149 January Term, 1979, Appeal from the Order of Contempt of Court entered by the Court of Common Pleas, Philadelphia, at No. 2485, M.C. March Term, 1979, during the Trial of Darryl Bronzeill, Bill Nos. 1075-1077, November Sessions, 1978.


Robert Campolongo, Asst. Dist. Atty., John Rogers Carroll, Philadelphia, for appellant at 148.

Steven H. Goldblatt, Deputy Dist. Atty., Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., for appellant at 149.

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

Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. O'Brien, C. J., did not participate in the consideration or decision of this case. Nix, J., concurred in the result.

Author: Kauffman

[ 495 Pa. Page 629]


This is a direct appeal from an order of the Court of Common Pleas of Philadelphia summarily holding appellant, Assistant District Attorney Robert Campolongo, in direct criminal contempt of court.*fn1 Because the evidence is insufficient to support a summary contempt conviction, we reverse.*fn2

On March 23, 1979, during the first day of the trial of Philadelphia police officer charged with simple and aggravated assault and recklessly endangering another person, the court cited both appellant and defense counsel for contempt of court and fined each $250.00. Although he entered an order, the trial judge did not write an opinion explaining the basis for the summary contempt convictions. On March 29, 1979, after the second day of testimony, the court declared a mistrial sua sponte on the grounds of intentional prosecutorial misconduct and also granted the defendant's motion for a mistrial on the same grounds. In a lengthy opinion in

[ 495 Pa. Page 630]

    support of the mistrial, the court described "a deliberate, intentional, repeated pattern on the part of the Assistant District Attorney to prejudice [the accused police officer] by inflaming the passion of the jury with evidence, demonstrations, and details of crimes for which [he] was not on trial."

Neither the record nor the trial court's opinion explaining the mistrial clarifies which acts of appellant led to the contempt citation. The particular incident which apparently provoked both summary convictions occurred after appellant objected to defense counsel's assertion that a Commonwealth witness was trying to "stare [him] down." The court sustained this objection and directed defense counsel not to argue with the witness. Later, during the recross-examination of the same witness by defense counsel, the following exchange occurred:


Q. Is there any reason that you are so hostile to me?


[APPELLANT]: Objection, argumentative. Is there any reason why he's hostile to her ?

THE COURT: Gentlemen, take the jury out. This is a nice time to take a recess. We are going to put these people in line.

The witness can step outside.

[The following took place in open court outside the presence of the jury and witness:]

THE COURT: Gentlemen, I have warned you from the beginning of this trial, both of you, that I will tolerate no further theatrics, screaming, yelling, shouting, pointing, gestulating [sic], jumping up and down, which both of you have engaged in several times throughout this trial.

You both have been warned. You are fined $250.00 each. Pay it to the Court tomorrow. Any further outbursts and I will increase the amount. That way we will remedy the situation.

[ 495 Pa. Page 631]

We have taken a short recess. Try to collect yourselves and calm yourselves down.*fn3 (Emphasis supplied)

The above-quoted statements of the court offer the only explanation on the record of the contempt citations, and no warning was given on the record to either counsel that the court was contemplating such drastic action. Significantly, the detailed opinion supporting the mistrial fails even to mention this incident, but relies instead on a pattern of intentional prosecutorial misconduct, much of which occurred after the contempt citations of both counsel.

The defendant purpose of imposing summary punishment for criminal contempt proceedings is the vindication of the dignity and authority of the court and the protection of the interests of the general public. Commonwealth v. Marcone, 487 Pa. 572, 577, 410 A.2d 759, 762-63 (1980).*fn4 Although the law has long recognized the inherent power of the courts to impose summary punishment for contemptuous misconduct,*fn5 that power has been limited in this Commonwealth by Section 4131 of the Judicial Code:*fn6

ยง 4131. Classification of penal contempts

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:

(1) The official misconduct of the officers of such courts respectively.

[ 495 Pa. Page 632]

(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.

(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

The trial court failed to designate the statutory basis for its contempt citations, but it is clear that only Subsection (3) could be applicable. Subsection (1) has been held to pertain only to court officials performing ministerial duties,*fn7 while subsection (2) provides punishment for failure to comply with lawfully issued orders, decrees and process.*fn8 Subsection (3) applies to conduct, such as that in the instant case, "occurring in or near the courtroom." Commonwealth v. Garrison, 478 Pa. 356, 371, 386 A.2d 971, 978 (1978); In re Johnson, 467 Pa. 552, 557, 359 A.2d 739, 741 (1976).

To sustain a summary adjudication of criminal contempt, every element of the offense must be proven beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95

[ 495 Pa. Page 633]

S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Johnson, supra, 467 Pa. at 557, 359 A.2d at 742. The necessary elements of proof for a conviction under Subsection (3) are: (1) misconduct in the court's presence, (2) intent to obstruct the proceedings, and (3) actual obstruction of the administration of justice. Commonwealth v. Reid, 494 Pa. 201, , 431 A.2d 218, 222 (1981); Matter of Nugent, 494 Pa. 2, , 427 A.2d 1154, 1157 (1980); Commonwealth v. Garrison, supra, 478 Pa. at 371, 386 A.2d at 979.

For conduct to constitute an obstruction of the administration of justice, it must significantly disrupt judicial proceedings. Commonwealth v. Rubright, 489 Pa. 356, 364, 414 A.2d 106, 110 (1980); Commonwealth v. Garrison, supra, 478 Pa. at 372, 386 A.2d at 979; In re Johnson, supra, 467 Pa. at 558, 359 A.2d at 742. Mere affront to the trial judge is not enough. Remarks that are injudicious, or even disrespectful or insulting, will not, without more, justify a summary conviction for contempt of court. Commonwealth v. Garrison, supra, 478 Pa. at 373, 386 A.2d at 979.

Intentional prosecutorial misconduct serious enough to warrant declaration of a mistrial undoubtedly would constitute an obstruction of the administration of justice sufficient to support a contempt conviction. The contempt citation challenged here, however, was not based on the pattern of intentional prosecutorial misconduct which cumulatively resulted in the mistrial. In fact, much of appellant's conduct deemed by the trial court to be sufficiently reprehensible to require the declaration of a mistrial occurred after the contempt citation. Significantly, the court held both appellant and defense counsel in contempt at the very same moment and admonished both for the very same conduct. Neither the words "prosecutorial misconduct" nor "mistrial" were even mentioned, and, other than a "short recess," the record discloses no disruption of the proceedings.*fn9

[ 495 Pa. Page 634]

The statement of appellant which apparently led to the contempt citation was made as he objected to defense counsel's manner of questioning a Commonwealth witness. When defense counsel asked the witness why she was "so hostile" to him, appellant stated, "Objection, argumentative. Is there any reason why he's hostile to her?" The court then held both counsel in contempt. Appellant's remark appears to have been a rhetorical question addressed to the court in an attempt to explain his objection. Although clearly inappropriate and ill-advised, the question did not significantly disrupt the proceedings and thus did not constitute an obstruction of the administration of justice.*fn10

Accordingly, the judgment of sentence is reversed.*fn11

O'BRIEN, C.J., did not participate in the consideration or decision of this case.

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