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COMMONWEALTH PENNSYLVANIA v. AUGUSTUS COLLIER. APPEAL THOMAS INNES (06/03/86)

filed: June 3, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
AUGUSTUS COLLIER. APPEAL OF THOMAS INNES, ESQUIRE



Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 82-03-596, 82-03-597.

COUNSEL

Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellant.

Cirillo, President Judge, and Rowley and Wieand, JJ.

Author: Wieand

[ 353 Pa. Super. Page 545]

Thomas Innes, Esquire, while representing Augustus Collier, a criminal defendant charged with six robberies, was twice held in contempt of court and fined. He was summarily held in contempt of court during a suppression hearing when he pursued requests for evidence determined by the court to be irrelevant to the suppression issue. Later, during jury selection, he was again held in contempt for his insistence that Collier should be allowed to leave the courtroom to go to the bathroom. Innes was ordered to pay a fine of $500.00 for the first offense and a fine of $100.00 for the second offense. He argues on appeal that the court's contempt findings were unwarranted. We are constrained to agree. His conduct, if rude and obnoxious, was not contemptuous.

"The power of the several courts of this Commonwealth to issue attachments and to inflict summary punishments for contempts 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." 42 Pa.C.S. ยง 4131(3).*fn1 This statutory offense "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. Cameron, 501 Pa. 572, 575, 462 A.2d 649, 650 (1983). See: In re Nugent, 494 Pa. 2, 8, 427 A.2d 1154, 1157 (1980); Commonwealth v. Rubright, 489 Pa. 356, 363, 414 A.2d 106, 110 (1980); In re Cogan, 485 Pa. 273, 281, 401 A.2d 1142, 1146 (1979); Commonwealth v. Garrison, 478 Pa. 356, 371, 386 A.2d 971, 979 (1978); In re Johnson, 467 Pa. 552, 557, 359 A.2d 739, 742 (1976); McMillan v. Mountain Laurel Racing, Inc., 467 Pa. 266, 271, 356 A.2d 742, 745 (1976); Kinter v. Kinter, 348 Pa. Super. 27, 28, 501 A.2d 281, 282 (1985); Commonwealth v. Restifo, 339 Pa. Super. 225, 228, 488 A.2d 633, 635 (1985).

[ 353 Pa. Super. Page 546]

No satisfactory definition of contemptuous misconduct has been developed. Perhaps the best definition is that misconduct is behavior that is inappropriate to the role of the actor . . . . An attorney engages in misconduct if his behavior is calculated to hinder the search for truth . . . . Misconduct occurs in the presence of the court if the court itself witnesses the conduct or if the conduct occurs outside the courtroom but so near thereto that it obstructs the administration of justice . . . . A contemner acts with wrongful intent if he "knows or should reasonably be aware that his conduct is wrongful." . . . An obstruction of justice is a significant disruption of judicial proceedings . . . . What is required is a showing of actual, imminent prejudice to a fair proceeding or to preservation of the court's authority . . . . This danger "must not be remote or even probable; it must immediately imperil."

Commonwealth v. Garrison, supra, 478 Pa. at 372, 386 A.2d at 979 (citations omitted) (emphasis added).

Innes was first held in contempt for conduct occurring during the suppression hearing. There, while questioning a police officer regarding identification statements made by victims of the robberies after having examined photographs, Innes learned that witnesses other than victims had also been shown the same photographic array. The following occurred during defense cross-examination of a police witness:

Q. Who else did you go to?

MR. WILLIAMS: Objection.

THE COURT: Sustained.

BY MR. INNES:

Q. When you went to the other people, did they make identification or not make identification?

MR. WILLIAMS: Objection.

THE COURT: Sustained.

MR. INNES: Judge, that goes to the issue.

[ 353 Pa. Super. Page 547]

THE COURT: No, it doesn't go to any issue at all. I have ruled on the objection. I will not tolerate any argument. Ask your next question.

MR. INNES: I make a motion for production of those exculpatory statements under Brady versus Maryland.

THE COURT: Why do you want this?

MR. INNES: I would be happy to tell you at side bar with ...


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