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[U] Commonwealth v. Frisby

Superior Court of Pennsylvania

March 11, 2014



Appeal from the Judgment of Sentence, July 11, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at No. MC-51-MD-0001403-2012




Musafa Frisby appeals from the judgment of sentence entered July 11, 2012. Finding no error, we affirm.

After repeatedly violating his probation, appellant willfully disregarded a subpoena and failed to appear for court. On July 11, 2012, the Honorable Kevin Dougherty[1] held a joint contempt and violation of probation hearing, where appellant was found in contempt of court and resentenced for violating his probation. During the proceedings, appellant told

Judge Dougherty, "[t]his is bullshit, man." (Notes of testimony, 7/11/12 at 11.) Based on his use of profanity directed to the court, Judge Dougherty convicted appellant of a second count of contempt. (Id. at 11-12.)

Appellant filed a petition for writ of certiorari in the Court of Common Pleas challenging the sufficiency of the evidence supporting the contempt convictions. The petition was denied on October 10, 2012. Appellant filed a timely notice of appeal.[2]

The sole issue presented is as follows:

Was not the evidence insufficient to find Appellant guilty of criminal contempt as the mere use of vulgarity in a courtroom does not constitute contempt when there was no proof that he possessed the requisite intent to obstruct justice or that his profane editorial remark caused an obstruction of justice?

Appellant's brief at 2.

Our standard of review follows.

A challenge to the sufficiency of the evidence is a question of law, subject to plenary review. When reviewing a sufficiency of the evidence claim, the appellate court must review all of the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, as the verdict winner. Evidence will be deemed to support the verdict when it establishes each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. The Commonwealth need not preclude every possibility of innocence or establish the defendant's guilt to a mathematical certainty. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Teems, 74 A.3d 142, 144-145 (Pa.Super. 2013), appeal denied, __Pa. ___, 79 A.3d 1098 (2013), quoting Commonwealth v. Toland, 995 A.2d 1242, 1245 (Pa.Super. 2010) (citations omitted).

"The ability to utilize the sanction of criminal contempt allows the trial court to maintain control in his or her courtroom; however, a trial court should not use this sanction when a lesser means would suffice." Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa.Super. 2002).

The power to punish for contempt, including the power to inflict summary punishment, is not derived by statute but rather is a right inherent in the courts and is incidental to the grant of judicial power under our Constitution. A trial court's finding of contempt will not be disturbed absent an abuse of discretion.

Commonwealth v. Ashton (In re Donohue), 824 A.2d 1198, 1202 (Pa.Super. 2003) (quotation and citations omitted). When reviewing a contempt conviction to determine the sufficiency of the evidence presented, an appellate court will place great reliance on the discretion of the trial judge and is limited to a determination of whether the facts support the trial court's finding. Kolansky, supra.

In order to sustain a conviction for direct criminal contempt, there must be proof beyond a reasonable doubt of (1) misconduct; (2) in the presence of the court; (3) committed with the intent to obstruct justice; and (4) that obstructs the administration of justice. Ashton, supra, at 1202. "Misconduct is behavior that is inappropriate to the role of the actor." Commonwealth v. Odom, 764 A.2d 53, 54 (Pa.Super. 2000) (citation omitted). Intent will be found where the contemnor knows or reasonably should be aware that his conduct is wrongful. Commonwealth v. Garrison, 478 Pa. 356, 372, 386 A.2d 971, 979 (1978).

Appellant does not dispute the epithet stated or that it was made in the presence of the trial judge. Rather, he argues that the term "bullshit" is not an obscenity but merely vulgar language which is not enough to constitute obstruction of justice. Appellant argues that his intent was only to voice his dissatisfaction with the court and not to prolong or disrupt the proceeding. (Appellant's brief at 7.)

At the outset, we disagree with appellant that the word "bullshit" is acceptable speech in a court of law. See Commonwealth v. Williams, 753 A.2d 856, 862 (Pa.Super. 2000), appeal denied, 567 Pa. 713, 785 A.2d 89 (2000). "Language such as that indulged in by Appellant in this instance is inappropriate and unacceptable behavior for an attorney or any other person handling business in a courtroom." Id. Therefore, the element of misconduct has been satisfied.

With regard to the second prong, there is no doubt that the conduct occurred in the presence of the courtroom. Appellant was seen and heard by the court during the proceedings.

With regard to the third prong, i.e., intent to obstruct the proceedings, we have stated that "[t]here is wrongful intent if the contemnor knows or should reasonably be aware that his conduct is wrongful." Id. (citation omitted). In Williams, the appellant raised his middle finger and stated, "Fuck you" to the trial judge after the judge imposed appellant's sentence. Id. at 859. In concluding that appellant "should have reasonably been aware that his conduct was wrongful, " we reasoned that the appellant was an adult of normal intelligence and education who had prior experience with the court system. Id. at 862. The appellant "should have been cognizant of the proper demeanor and standards of behavior appropriate for a court of law." Id. Based on consideration of these factors, we concluded that the appellant in Williams had the "requisite intent to obstruct justice by virtue of the fact that he should have been aware of the effect that his comment would have on the courtroom proceedings." Id. See also Commonwealth v. Mutzabaugh, 699 A.2d 1289, 1292 (Pa.Super. 1997) (concluding third element satisfied where appellant had appeared before the court as a criminal defendant on several prior occasions and, therefore, "would be aware of the seriousness of court proceedings, the proper decorum to be observed during such proceedings and the proper respect to be accorded the trial judge").

Similarly, in the instant case, the trial court noted the considerable history he had with appellant in the courtroom. Appellant, who was 33 years of age, does not claim that he possesses lesser intelligence or education than a normal adult. Appellant knew, or should have known, that his behavior was inappropriate for a court of law. Accordingly, as in Williams, supra, and Mutzabaugh, supra, we conclude that there was sufficient evidence to establish appellant's wrongful intent to obstruct the court proceedings.

Finally, with regard to the fourth prong, we conclude that appellant's misconduct obstructed the administration of justice. "To obstruct justice, conduct must significantly disrupt judicial proceedings . . . [C]ontempt requires actual, imminent prejudice to a fair proceeding or prejudice to the preservation of the court's orderly procedure and authority." Williams, 753 A.2d at 863 (emphasis in original; citation omitted). When appellant made his remark, the sentencing proceedings had not concluded. See Mutzabaugh, 699 A.2d at 1293 ("Court proceedings are concluded after the defendant leaves the courtroom, the trial judge goes to the next case or adjourns court and leaves the courtroom."). In Williams, we concluded that the appellant's outburst, committed directly after the court's imposition of sentence, amounted to an actual obstruction of justice. Williams, supra at 863. We explained:

Appellant's reaction to the Court's imposition of sentence in open court was a clear effort on his part to brazenly demonstrate his repudiation of the Court's sentencing choice. He was thereby flagrantly scorning the Court's authority to impose such a sentence, as well as the goals the Court was seeking to achieve through that sentence. Thus, the Appellant was not merely personally attacking the Trial Judge through his actions but rather he was belittling the entire process of the administration of justice.

Id. Thus, we reasoned that, "had the [c]ourt not acted in response to [a]ppellant's actions it would have eroded the [c]ourt's authority in the eyes of all those present." Id. As such, we concluded the court properly acted to preserve its authority and that the fourth element of criminal contempt had been satisfied. Id.

Likewise, appellant's remark, made in open court, was obviously an attempt to "brazenly demonstrate his repudiation" of the trial court's authority to sentence him. "The proper method for a defendant to challenge the propriety of his or her sentence is through appropriate legal means such as a motion to reconsider sentence or an appeal, not through crude displays of rudeness directed toward a sentencing judge." Id. From our review of the transcript, it is obvious that appellant had a contentious relationship with Judge Dougherty. As the trial court notes, appellant was disrespectful towards the court during much of the hearing. (Trial court opinion, 6/21/13 at 7.) These circumstances indicate that, had the court not punished appellant for his misconduct in the courtroom, "it would have eroded the [c]ourt's authority in the eyes of all those present." Id. Thus, there was sufficient evidence to find that appellant's misconduct actually obstructed the administration of justice and the facts of the record support the trial court's determination that appellant was guilty of direct criminal contempt.

Judgment of sentence affirmed.

Judgment Entered.

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