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08/13/97 COMMONWEALTH PENNSYLVANIA v. KENNETH D.

August 13, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH D. MUTZABAUGH, JR., APPELLANT



Appeal from the ORDER ENTERED May 23, 1996 Docketed June 11, 1996 In the Court of Common Pleas, Criminal Division Juniata County, No. 114 of 1993. Before KURTZ, J.

Before: Cavanaugh, Popovich And Olszewski, JJ. Opinion BY Cavanaugh, J.

The opinion of the court was delivered by: Cavanaugh

OPINION BY CAVANAUGH, J.:

Filed August 13, 1997

This is an appeal from the judgment of sentence of ninety days imprisonment, imposed after the trial court found appellant Kenneth D. Mutzabaugh guilty of direct criminal contempt. We affirm.

On May 7, 1996, appellant appeared before the Honorable Keith B. Quigley in regard to his request for early parole or, alternatively, work release in relation to a six to eighteen month sentence he was then serving in the Juniata County Prison. The court denied appellant's request for early parole and informed him to solicit employment and to file a work release application. Appellant and the court then engaged in a brief colloquy during which appellant became angered while relating that he should not be in jail, that it was all a mistake and that he had been treated unfairly. At this point, the court stated, "We're done." Appellant got up from his chair, walked toward the door and while passing the Judge stated, "You can go to hell. Fuck you." As appellant was a county prisoner at the time, a deputy sheriff pursued and apprehended him. The court held appellant in direct contempt of court and directed that a hearing be scheduled before a visiting Judge as soon as possible.

At appellant's contempt hearing, the Commonwealth presented three witnesses who were present at the prior hearing at which the contempt citation was issued, as well as the transcript of that proceeding. No evidence was presented by appellant. At the Conclusion of the hearing, the Honorable Stewart L. Kurtz found appellant guilty of direct criminal contempt and sentenced him to ninety days imprisonment. This appeal followed.

Appellant first contends that he was denied due process for the lack of specificity in the charging document. Our courts unquestionably have the power to punish willful misconduct which obstructs a fair and orderly trial; and this power includes the power to impose summary criminal contempt. Commonwealth v. Garrison, 478 Pa. 356, 365, 386 A.2d 971, 975 (1978). In general, a citation in a summary case must contain both the specific statute violated and a brief factual summary sufficient to give the defendant notice of the nature of the offense charged. Commonwealth v. Zullinger, 450 Pa. Super. 533, 536, 676 A.2d 687, 688-89 (1996). A variance between the citation or indictment and the proof at trial is not fatal if it still gives the defendant sufficient notice and does not cause surprise which is prejudicial to the defense. Id.

Here, Judge Quigley's order stated, in pertinent part, "Defendant lost his temper [and] used threatening and obscene language to the Court which constitutes a direct contempt situation." Clearly, appellant was neither surprised nor prejudiced as the conduct charged via the court's order was not at variance with the conduct proven by the Commonwealth at trial. The focus of both the Court's decision and the evidence offered by the Commonwealth was appellant's loss of temper and his direction of obscene language to the Court. No other evidence was presented by the Commonwealth. There was no variance between the conduct charged and the conduct proven by the Commonwealth. As such, appellant was neither surprised nor prejudiced. Cf. Zullinger, supra (defendant's conviction reversed where he was surprised and prejudiced by variance between conduct charged and conduct proven at trial; in addition to conduct charged, court considered other evidence of previous encounters and occurrences which were presented for first time at trial).

Appellant next contends that the trial court erred in allowing the transcript of the May 7, 1996 hearing, at which he was cited for contempt, to be admitted into evidence over his hearsay and right to confrontation objections.

We begin our analysis with reference to two pertinent sections of the Judicial Code. 42 Pa.C.S.A. provides:

§ 6104. Effect of official records generally

(a) General rule. -- A copy of a record of governmental action or inaction authenticated as provided in section 6103 (relating to proof of official records) shall be admissible as evidence that the governmental action or inaction disclosed therein was in fact taken or omitted.

(b) Existence of facts.-- A copy of a record authenticated as provided in section 6103 disclosing the existence or nonexistence of facts which have been recorded pursuant to an official duty or would have been so recorded had the facts existed shall be admissible as evidence of the existence or nonexistence of such facts, unless ...


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