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05/21/97 COMMONWEALTH PENNSYLVANIA v. ROMERO FALANA

May 21, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
ROMERO FALANA, APPELLANT



Appeal from the Order of the Superior Court dated April 3, 1996 at 3610 Phila. 1994, vacating and remanding the Order of the Court of Common Pleas of Philadelphia, Criminal Division, dated September 14, 1994, at 94-0403294-97. JUDGE(S) BELOW: CCP - Honorable Pamela Pryor Cohen / SUPERIOR - TAMILIA, KELLY, MONTEMURO, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Justice Zappala files a Dissenting opinion in which Mr. Justice Cappy joins.

The opinion of the court was delivered by: Newman

MADAME JUSTICE NEWMAN

Romero Falana appeals a judgment of sentence for criminal contempt *fn1 imposed by the Court of Common Pleas of Philadelphia County. For the reasons that follow, we affirm.

On July 19, 1994, following a non-jury trial, the Honorable Pamela Pryor Cohen, Court of Common Pleas of Philadelphia County, found Appellant guilty of possessing an instrument of crime *fn2, recklessly endangering another person *fn3, and aggravated assault. *fn4

Evidence adduced at trial indicated that on March 24, 1994, Appellant assaulted his former girlfriend, who is the mother of his child. He punched her with his fists and chased her while hitting her on the head with a wooden board. He then grabbed her and threw her to the ground, striking and kicking her until she was unconscious. During the attack she dislodged four teeth, suffered cuts on her cheeks, a lump on her forehead, cuts and swelling on her arm, a black eye and bruised hips and ribs.

The trial court held a sentencing hearing on September 14, 1994, during which the victim testified that throughout her nine-year relationship with Appellant he tormented, harassed, threatened, and physically abused her. She further stated:

My family has been threatened. He has used that as an excuse for as long as I can remember that if I run and hide from him, he knows where my family lives.

The day that he was found guilty, he telephoned my home, I have no idea how he got my telephone number, and he told me, "Yeah bitch, when I get the fuck out, I'll see you then." He has shown me that he is not through with me yet.

N.T. September 14, 1994 at 7. At the close of the hearing, the trial court sentenced Appellant to consecutive terms of imprisonment of four and one-half to ten years for aggravated assault, one to two years for recklessly endangering another person, and one to five years for possessing an instrument of crime.

Following sentencing, the Judge remained on the bench, and as the sheriffs escorted the Appellant out of the courtroom a disturbance occurred which caused her to direct the sheriffs to return the Appellant to the bar of the court. The Judge reconvened the hearing and the Commonwealth called two witnesses, Assistant District Attorney Kyle Birch and the victim. Mr. Birch testified that he was sitting in the back of the courtroom, and that while the Appellant walked by the row where the victim was seated, he said, "I'll be out one day." The victim corroborated Mr. Birch's testimony. Appellant, still represented by the attorney who represented him at trial, called his mother as a witness and she testified that the Appellant directed his statement to her, in response to a question about when she could see him again. The court considered the testimony and the arguments of counsel before holding Appellant in contempt of court and sentencing him to an additional three months to five months and twenty-nine days in prison.

On appeal, the Superior Court rejected the Appellant's position that his convictions for aggravated assault and reckless endangerment merged for purposes of sentencing. It also affirmed his conviction for contempt of court. However, the Superior Court held that the conviction for possessing an instrument of crime was based on insufficient evidence, and therefore remanded for resentencing. Appellant filed a petition for allowance of appeal, which we granted on the limited issue of contempt.

In Behr v. Tereshko, 533 Pa. 656, 625 A.2d 1190, (filed May 20, 1997), we noted:

This Court has long upheld a court's power to maintain courtroom authority. In Commonwealth v. Africa, 466 Pa. 603, ...


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