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09/23/97 COMMONWEALTH PENNSYLVANIA v. BARRY WILLIAM

September 23, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
BARRY WILLIAM JONES; APPEAL OF: DOUGLAS W. FERGUSON, ESQUIRE AND MARK D. WAITLEVERTCH ESQUIRE, DISTRICT ATTORNEY OF CRAWFORD COUNTY, PENNSYLVANIA



Appeal from the Order dated November 14, 1996, Court of Common Pleas, Crawford County, Criminal Division at No. 1996-282. Before Miller, J.

Before: Johnson, Hudock and Saylor, JJ. Opinion BY Johnson, J.

The opinion of the court was delivered by: Johnson

Filed September 23, 1997

OPINION BY JOHNSON, J.:

Crawford County Assistant District Attorney Douglas W. Ferguson appeals from the order dated November 14, 1996 which imposed a $200 fine for direct criminal contempt. Because the record is not sufficient to establish an obstruction of Justice we reverse. Crawford County District Attorney Mark D. Waitlevertch appeals from the same order under Pa.R.A.P. 501. Because District Attorney Waitlevertch was not a party to the proceeding in the trial court and has not demonstrated that he has a direct, immediate, and substantial interest in this matter, his portion of the appeal is quashed. See Commonwealth v. Martorano, 387 Pa. Super. 79, 85 n.1, 563 A.2d 1193, 1196 n.1 (1989).

The contempt order was entered after a series of statements Ferguson made during the course of a criminal trial. The statement which precipitated the contempt citation occurred during the cross-examination of a prosecution witness:

BY MR. HUNDERTMARK: After a year, it's not remarkable enough for you to recall. Do you recall Hope Nevison making any comments about being physically attacked in the bathroom while you were sitting in the livingroom?

A. Yes.

Q. What do you recall now?

A. I remember she told me.

Q. Not what she told you.

MR. FERGUSON: You asked the question, Mr. Hundertmark.

THE COURT: Wait. We're going into chambers with the Court Reporter a second.

N.T. filed Dec. 13, 1996, at 71-72. Once in the Judge's chambers, the trial court summarily fined Ferguson for contempt. N.T. filed Dec. 6, 1996, at 2-3.

The court refused Ferguson's request for a contempt hearing, explaining: "I have entered the Order. It's in court. It was in front of the Judge. And you have got a record." Id. at 3. He added:

"We have been through this for seven years. The courtroom has become a zoo by reason of the conduct of the lawyers. You're not the only one. But I have warned you many times before and I warned you less than five minutes prior to that. You know how to try a case. You know how to try a case. And if you have an objection, you make it and I'll rule. But you're not going to blurt out to Mr. Hundertmark."

Id. at 4. The court then sustained Ferguson's objection. Id. at 5.

The objectionable statement followed closely an exchange during which Ferguson was admonished not to address objections or other comments to opposing counsel. This exchange ...


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