No. 27 Pittsburgh, 1981, Appeal from the Judgment of Sentence entered on Dec. 8, 1980, in the Court of Common Pleas, Criminal, of Butler County at No. B42 MSD. 80-191.
Richard S. Levine, Pittsburgh, for appellant.
Leo M. Stepanian, Assistant District Attorney, Butler, for Commonwealth, appellee.
Spaeth, Johnson and Hoffman, JJ.
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This appeal is from a judgment of sentence for direct criminal contempt. The sentence was that appellant be committed to the county prison until he paid a fine of $1000.*fn1 Appellant argues: (1) that the evidence was insufficient to support a conviction of direct criminal contempt; (2) that in imposing summary punishment, the lower court abused its discretion; (3) that the lower court should have recused itself; and (4) that the sentence was manifestly excessive. We are not persuaded by the first three arguments, but we are by the last. We therefore affirm the conviction of direct criminal contempt but vacate the sentence and remand for resentencing.
Appellant is an attorney. On December 8, 1980, he was representing one James D. McDeavitt at a hearing before the lower court. The hearing started as follows:
THE COURT: Very well, this is the time fixed for hearing on the charge that James D. McDeavitt committed an indirect criminal contempt by violating the conditions
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of the order of October twenty-seven, nineteen eighty, entered under the Protection from Abuse Act.
You may call your witness.
MR. FOLAN: Thank you, Your Honor. Mr. McDeavitt --
THE COURT: Well, we don't seem to have the defendant in court.
MR. FALKENHAN [appellant]: Right here he is, Your Honor.
THE COURT: He may move up.
MR. FALKENHAN: We decline, Your Honor, thank you.
MR. FALKENHAN: I say we decline.
THE COURT: You decline for what reason?
MR. FALKENHAN: Without going on the record of these proceedings, I and James McDeavitt doesn't -- the order under which this hearing is called this afternoon is on appeal. The appeal was perfected this morning with the Prothonotary.
THE COURT: We will excuse the children from the courtroom.
MR. FOLAN: Notice of appeal was filed some time ago. I have no reason to believe the supersedeas was granted.
THE COURT: The court -- there has been no application for supersedeas. The court has granted no supersedeas. We will excuse the children from the courtroom.
This is totally contemptible, inexcusable, Mr. Falkenhan, to bring those children into this courtroom.
MR. FALKENHAN: As a separate record I will demand that if you --
(Mr. Falkenhan continues to speak at the same time as the court.)
THE COURT: This is totally incomprehensible to this court, and I want that noted on the record. The defendant James D. McDeavitt will be seated at the counsel
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table. Let the record show that Attorney Falkenhan -- Sit down. Sit down, Mr. Falkenhan.
MR. FALKENHAN: No, I will not, Your Honor, respectfully. I have my client's liberty to defend. He does not and I as counsel do not participate in these proceedings. You may do what you will, but if he moves forward to the bar it is under the force and compulsion of the law, physical force. And when he does, he does because you drag him and not because he participates in these proceedings.
THE COURT: Let the record show that Attorney Falkenhan has directed his client not to appear at the bar of this court as a participant in these proceedings.
Very well, gentlement, place Mr. McDeavitt at the counsel table.
All right, Mr. Falkenhan, there will be no comments from you aside during this hearing. If you have remarks, you will address them to the court.
MR. FALKENHAN: I assure the court if I have remarks intended to address the court I will do so, Your Honor.
THE COURT: You will not from the position you are in now. You will be silent throughout the entire proceeding.
Mr. McDeavitt, are you represented by counsel?
Mr. Falkenhan, I told you to be quite [ sic ].
MR. FALKENHAN: I will defend the liberty of my client. And I will instruct him from here and I will not move forward to the bar of your court lest that implicate voluntary participation in this action. I have the liberty of my client to defend, and I will do so, Your Honor.
THE COURT: I told you you were not to address the court from that position. You will come to the bar of the court.
MR. FALKENHAN: Say nothing at all, ever, Jim.
THE COURT: Did you record that remark?
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