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COMMONWEALTH PENNSYLVANIA v. NATHAN OWENS (10/27/81)

SUPREME COURT OF PENNSYLVANIA


decided: October 27, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
NATHAN OWENS, APPELLANT

No. 180 January Term, 1979, Appeal from judgments of sentence dated January 16, 1979, by Stanley L. Kubacki, J., Court of Common Pleas of Philadelphia, Criminal Trial Division, No. 1365 August Term, 1978 (In re: Contempt, Misc. No. 7900-5411).

COUNSEL

Elias B. Landau, Philadelphia, for appellant.

Robert B. Lawler, John Sikorski, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.

Author: Roberts

[ 496 Pa. Page 18]

OPINION OF THE COURT

This is a direct appeal from judgments of sentence imposed by the Court of Common Pleas of Philadelphia upon three citations of criminal contempt entered against appellant during trial.*fn1 The court cited and sentenced appellant summarily as each of the contempts occurred. A sentence of six months' imprisonment was imposed upon each of the citations, and the sentences were ordered to run consecutively.

Appellant challenges both the sufficiency of the evidence to sustain the contempt convictions and the legality of the court's summary procedure. We reject appellant's contentions and, hence, affirm.

Underlying each of the three contempt convictions was appellant's persistent insistence upon the right to dismiss his

[ 496 Pa. Page 19]

    court-appointed attorney. Appellant initiated his demand immediately before closing arguments were scheduled to begin. At that time the court dismissed the jury from the courtroom and conducted a colloquy with appellant. The colloquy revealed appellant's dissatisfaction with his counsel's strategy during trial, particularly the failure to call several witnesses and to ask certain questions. The court, however, denied appellant's request to dismiss his attorney and to obtain new counsel. After the court's ruling, the following ensued, resulting in the first contempt conviction:

"THE DEFENDANT: Well, he ain't going to represent me. He ain't going to argue. You may as well get your contempt book out. I ain't going to allow him to say nothing.

THE COURT: What would you do if he tried to speak in your behalf?

THE DEFENDANT: I ain't going to let him.

THE COURT: What do you mean you wouldn't let him?

THE DEFENDANT: I am going to disrupt this courtroom because I don't want him to defend me no more. I want me another lawyer.

THE COURT: I am denying your request for another lawyer.

THE DEFENDANT: Okay, you can deny it. I told you what I am going to do.

THE COURT: You will be in very serious trouble with this Court, I will tell you now, if you disrupt the courtroom.

THE DEFENDANT: I am in very serious trouble now. I ain't going anywhere. The only thing I want is a fair trial. If I can't get a fair trial, I will get nothing.

THE COURT: You are getting a fair trial.

THE DEFENDANT: I am not getting a fair trial.

THE COURT: Sit down, Mr. Owens.

MR. FREEMAN [defense counsel]: Your Honor, it has been brought to my attention -- perhaps we should simply

[ 496 Pa. Page 20]

    place Mr. Owens under oath. Of course, he has been placed under oath already. I would like to conduct some sort of colloquy as to what his desires are in this case, that is whether he has been advised that he has a right to counsel, to have counsel close in his behalf and he has the right to have counsel call witnesses and to cross-examine them.

THE COURT: Mr. Owens, come up.

THE DEFENDANT: I ain't getting up.

THE COURT: Sheriff. This is not a joke, it is a courtroom.

(Whereupon, the defendant caused a disturbance in the courtroom.)

THE COURT: Now, Mr. Owens, I am holding you in contempt. I saw you disrupt this courtroom.

THE DEFENDANT: He snatched the chair from underneath me.

THE COURT: I am sentencing you to six months in jail for contempt.

THE DEFENDANT: He snatched the chair from underneath me.

THE COURT: Keep quiet. I am sentencing you to six months in jail to follow any term you are now serving. You will not get another attorney. Is it your wish that your present attorney, Mr. Richard Freeman, not speak on your behalf and not address this jury? Well, Mr. Owens.

THE DEFENDANT: Give me another contempt.

THE COURT: You refuse to answer?

MR. FREEMAN: Nat, answer.

THE COURT: Put him down there. Sit down, Mr. Owens.

Mr. Freeman, you may sit over there. Bring the jury back."*fn2

[ 496 Pa. Page 21]

The statements and conduct leading up to the second contempt conviction occurred immediately after the jury had returned to the courtroom:

"MR. FREEMAN: Your Honor, may I approach the jury?

THE COURT: Yes.

THE DEFENDANT: Ladies and gentlemen of the jury, this man -- I have dismissed this attorney, he is not representing me anymore. I have a right to my own attorney and I am not satisfied with the way he is representing me. I am dismissing him. I don't want him to close out the arguments for me.

THE COURT: You had your say. Sit down, Mr. Owens.

THE DEFENDANT: I don't want him to represent me anymore.

THE COURT: I told you to sit down.

THE DEFENDANT: I don't want him here anymore.

THE COURT: Sheriff, take him over and sit him down.

THE DEFENDANT: I don't want him to represent me. I don't want him to speak on my behalf.

THE COURT: I told you in the absence of the jury what is going to happen. Your attorney feels --

THE DEFENDANT: I have a right to my own lawyer, I don't want him to represent me.

THE COURT: You have to pay for your own lawyer.

THE DEFENDANT: I will pay for one.

THE COURT: You asked for the Defender's Association.

THE DEFENDANT: I didn't ask for the Defender's Association.

THE COURT: Don't be disruptive.

THE DEFENDANT: I want my own lawyer.

THE COURT: Not another word.

THE DEFENDANT: I want my own lawyer. I don't want him to talk for me.

THE COURT: I am going to hold you in contempt again.

[ 496 Pa. Page 22]

THE DEFENDANT: Hold me in contempt. I want my own lawyer.

THE COURT: I am sentencing you to an additional six months in jail for contempt to follow all sentences that you are now serving."*fn3

Notwithstanding this second contempt conviction, the defendant persisted in his defiance of the court's denial of his request to dismiss his attorney:

"THE DEFENDANT: I still want my own lawyer.

THE COURT: Sit down.

THE DEFENDANT: I don't want him to, you know, represent me.

THE COURT: Everybody has heard you.

THE DEFENDANT: Still, I don't want him to say nothing in my behalf.

THE COURT: Do not be disruptive.

THE DEFENDANT: I want the rights that I am supposed to get. I want a fair trial.

THE COURT: All your rights have been protected.

THE DEFENDANT: I don't want him to represent me.

THE COURT: You have said it.

THE DEFENDANT: Tell him not to say anything about me or the case. I want my own attorney.

THE COURT: I am sentencing you to another six months in jail for contempt and that is to follow all the sentences I have given you.

THE DEFENDANT: You can give me a thousand years.

MR. FREEMAN: I move for a mistrial in this case.

THE COURT: I will grant your request for a mistrial in this case. I am declaring a mistrial in this case.

Incidentally, ladies and gentlemen, he is one of those Holmesburg escapees. You will serve those eighteen months, Mr. Owens. This case will be immediately relisted for trial.

THE DEFENDANT: Thank you.

[ 496 Pa. Page 23]

THE COURT: Don't thank me. I am sorry, ladies and gentlemen. This occurs all the time with disruptive defendants who are belligerent and hostile. You have seen one example. I regret we had to declare a mistrial. We will be going through this again. Thank you very much."*fn4

I. Sufficiency of the Evidence.

Appellant asserts that the evidence of record does not satisfy the elements of criminal contempt. 42 Pa. C.S. § 4131, upon which the contempt judgments rest, provides:

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

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

As this Court recently stated in Commonwealth v. Reid, 494 Pa. 201, 208, 431 A.2d 218, 222 (1981), "[s]ubsection III requires proof beyond a reasonable doubt of (1) misconduct, (2) in the presence of the court, (3) committed with intent to obstruct the proceedings, which (4) obstructs the administration of justice. Commonwealth v. Garrison, 478 Pa. 356, 371, 386 A.2d 971, 979 (1978)." Appellant argues that the record is insufficient to support a finding of "misconduct" for the first contempt conviction. He also argues that all three contempt convictions are invalid because proof of the requisite element of intent is lacking.

In attacking the first contempt conviction for want of evidence of misconduct, appellant claims that the only indication of misconduct is contained in the courtroom stenographer's notation, "the defendant caused a disturbance in the courtroom." We reject appellant's narrow view of the record. Apart from the stenographer's notation, there is ample

[ 496 Pa. Page 24]

    evidence of record to support the court's finding of misconduct at the time of the first contempt conviction. Not only had appellant repeatedly protested the court's denial of his request to dismiss his lawyer, but appellant had also stated his intention to disrupt the courtroom. When a disturbance took place between appellant and the sheriff, the court reported that disturbance on the record. Manifestly, the record sufficiently demonstrates misconduct. See Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971) (defendant's interruption of closing arguments contemptuous).

Appellant argues that all three contempt convictions should be set aside because "his intent was not to obstruct justice, but to be in his view an effective advocate for himself."*fn5 This argument, however, misconceives the element of intent required for summary conviction of criminal contempt. Commonwealth v. Reid, supra, like earlier cases, makes clear that a subjective intent to obstruct the administration of justice is not a requisite element of criminal contempt. See, e.g., Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976) (plurality). The requisite element of intent is satisfied if the contemnor has the intent to obstruct the proceedings. When that intent manifests itself in misconduct in the presence of the court which, as on this record, in fact obstructs the administration of justice, criminal contempt has been committed.*fn6

[ 496 Pa. Page 25]

II. Adequacy of Summary Procedure.

Appellant challenges the summary nature of his criminal contempt convictions. Relying upon Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974), he argues that, because the aggregate of the sentences imposed exceeds six months' imprisonment, he should have been afforded the right to a jury trial. Appellant's reliance is misplaced. Codispoti holds that the Sixth Amendment guarantees the right to a jury trial on multiple charges of direct criminal contempt when two conditions are satisfied: (1) the court postpones adjudication and sentence for contempt until the end of trial; and (2) the court imposes sentences which either alone, or when aggregated, exceed six months' imprisonment. The rationale underlying the rule enunciated in Codispoti is that, unlike during trial, at the end of trial there is "no overriding necessity for instant action to preserve order and no justification for dispensing with the ordinary rudiments of due process." Id., 418 U.S. at 515, 94 S.Ct. at 2692. Because on this record the charges of criminal contempt were adjudicated and punished during trial as the contemptuous conduct occurred, and because no individual sentence for contempt exceeded six months' imprisonment, appellant was not entitled to a jury trial. Codispoti v. Pennsylvania, supra; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).

Appellant's remaining challenge, that the summary procedure denied him due process of law, is equally without merit. Contrary to appellant's assertion, it is clear that, prior to summarily citing and punishing appellant for contempt, the court gave appellant sufficient notice that his conduct was contemptuous and sufficient opportunity to desist. Nor does this case present, as appellant contends, a "running bitter controversy" between the judge and appellant which would have required the judge to recuse himself

[ 496 Pa. Page 26]

    and refer trial to another judge. Compare Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) with Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1973).

As the American Bar Association Standards state, "[t]he only purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose." ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 1.1 (Approved Draft, 1972). Here, the trial judge properly used his power "to cite and, if necessary, punish summarily anyone who, in his presence in open court, willfully obstructs the course of criminal proceedings." Id. at § 7.1.

Because the evidence of record satisfies each of the elements of criminal contempt, we affirm judgments of sentence.

Judgments of sentence affirmed.


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