J-A12019-19

                             2019 PA Super 218

 IN RE: SHELDON ARRINGTON                :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: SHELDON ARRINGTON            :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 831 WDA 2018

        Appeal from the Judgment of Sentence Entered May 10, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-MD-0001985-2018


BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:                                 FILED JULY 16, 2019

      Appellant, Sheldon Arrington, appeals from the Judgment of Sentence

that the Allegheny County Court of Common Pleas entered after the court

issued an Order finding him in Contempt of Court. Appellant challenges the

sufficiency of evidence and the discretionary aspects of his sentence. After

careful review, we affirm.

      We glean the following factual and procedural history from the certified

record. The use of cellphones in courtrooms of the Allegheny County

Courthouse is prohibited by Order of the Court. Notice of this prohibition is

on numerous signs at the Courthouse.

      On April 13, 2018, Appellant, an Allegheny County juvenile court

probation officer with a 19-year tenure, was sitting in the front row of the

general seating area of the courtroom, waiting to testify as a witness in a

hearing to transfer a matter to juvenile court. After the trial judge took the
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bench, the court crier called the case and the sheriff left the courtroom to

escort the defendant into the hearing. While waiting for the sheriff to return,

the judge observed Appellant texting on his cellphone and asked Appellant to

put his cellphone away. Appellant looked around the courtroom, responded,

“there’s nothing going on in here,” stated that he had an “emergency,” and

continued to use his cellphone. The trial court then ordered Appellant to leave

the courtroom. Appellant left not only the courtroom but also the courthouse.

       The defendant’s counsel was then unable to contact Appellant to return

to the courtroom to testify on the defendant’s behalf.         Concerned that

Appellant’s conduct might impact the court’s determination of Appellant’s

credibility, the defendant’s counsel requested that the judge recuse himself

from the matter. The judge recused himself. The court then sent the case to

the court administrator for reassignment.1

       The trial court then issued a Rule to Show Cause upon Appellant to show

cause why the court should not hold him in contempt of court. At the hearing,

Appellant apologized for his conduct. He did not present any other evidence.

       The trial court found Appellant guilty of criminal contempt for using his

cellphone in the courtroom and imposed a sentence of ten days of




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1 The juvenile defendant and his co-defendant were to be tried jointly, unless
the defendant’s case was sent to juvenile court. The court administrator, thus,
reassigned both cases.



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incarceration. After Appellant filed a Motion for Reconsideration, the trial court

modified the sentence to a term of five to ten days of incarceration.2

       Appellant filed a timely Notice of Appeal. Appellant and the trial court

complied with Pa.R.A.P. 1925.

       Appellant presents the following issues for our review:

       1. Was the evidence sufficient to support the lower court’s finding
          of contempt, specifically, did the evidence support a finding
          that Appellant intended to disrupt the proceedings?

       2. Did the lower court abuse its discretion in imposing a sentence
          of incarceration upon Appellant for using a cellphone in court
          when no active proceedings were ongoing and then offering a
          verbal protest to the court which was not loud, violent or
          belligerent, and was such a sentence inappropriate under the
          facts of the case?

Appellant’s Br. at 3.

       Appellant first challenges the sufficiency of evidence. Appellant argues

that the evidence did not establish that he possessed the intent to disrupt the

proceedings because his conduct lacked “flagrant defian[ce]” as it was “not

loud, angry[,] or belligerent.”       Appellant’s Br. at 13.   Appellant notes that




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2 We note that the trial court erroneously issued the contempt order pursuant
to 42 Pa.C.S. § 4137(a)(1). See Amended Order of Sentence, filed 5/21/18.
Section 4137 relates to the contempt powers of magisterial courts and not the
Court of Common Pleas. However, “[t]he power to punish for contempt . . .
is a right inherent in courts and is incidental to the grant of judicial power
under . . . our Constitution.” Commonwealth v. Marcone, 410 A.2d 759,
763 (Pa. 1980). Accordingly, the trial court had the authority to find Appellant
in contempt of court pursuant to common law.


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when he used his cellphone, there were no “‘active’ [judicial] proceeding[s].”

Id. at 19.

      In reviewing an appeal from a contempt order, “we place great reliance

on the discretion of the trial judge.” Commonwealth v. Williams, 753 A.2d

856, 861 (Pa. Super. 2000) (citation omitted).         We review the record to

determine if the facts support the trial court’s decision and will reverse the

trial court only if there is a “plain abuse of discretion.” Id. (citation omitted).

       “The ability to issue a criminal contempt [sanction] empowers a trial

judge with the ability to maintain command over his or her courtroom.” Id.

“If we . . . carve away at this power, the sanctity and balance of the courtroom

may be in jeopardy.” Id. (citation omitted); see also 42 Pa.C.S. § 4132.

      Evidence is sufficient to sustain a conviction of contempt where there is

proof beyond a reasonable doubt of (1) misconduct, (2) in the presence of the

court, (3) committed with the intent to obstruct the proceedings, (4) that

obstructs the administration of justice. Commonwealth v. Moody, 125 A.3d

1, 5 n.4 (Pa. 2015).

      We start by addressing the first element of contempt. Misconduct is

behavior that is inappropriate to the role of the actor. Commonwealth v.

Falana, 696 A.2d 126, 129 (Pa. 1997) (citation omitted). There is no dispute

in this case that Appellant used his cellphone in the courtroom in violation of

the courthouse prohibition against the use of cellphones. To make matters

worse, Appellant not only argued with the trial judge when the trial judge told

Appellant to put away his cellphone, but also continued to use his cellphone.

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It is Appellant’s use of the cellphone and defiance of the trial judge’s directive

to put away Appellant’s cellphone that constitutes misconduct.

      The second element is that the defendant engages in the misconduct in

the presence of the court. In this case, it is also undisputed that it was in the

presence of the court that Appellant used his cellphone and then defied the

court’s directive to put away the cellphone.

      The third element of contempt requires evidence that the “contemnor

knows or should reasonably be aware that his conduct is wrongful.” Williams,

753 A.2d at 862 (citation omitted). The intent element of contempt focuses

on whether the contemnor knew or should have known the conduct was

wrongful, not whether the contemnor knew or should have known the conduct

would obstruct the proceedings. See id.

      Additionally, when an appellant has appeared before the court on

several prior occasions, an appellant should be aware of the seriousness of

the proceedings and the proper decorum. Commonwealth v. Mutzabaugh,

699 A.2d 1289 (Pa. Super. 1997)

      In this case, Appellant had been a juvenile probation officer in Allegheny

County for approximately 19 years. The courthouse has numerous signs

prohibiting the use of cellphones. Additionally, the trial court told Appellant

to put away his cellphone and Appellant refused.         It is from these facts,

therefore, that the factfinder could reasonably conclude that Appellant “knew

or should have been aware” that the use of a cellphone in the courtroom was

wrongful. It is also reasonable to infer from Appellant’s experience as a

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probation officer who appears in court often that Appellant “knew or should

have been aware” that his defiance of the court’s directive to put away his

cellphone was also wrongful conduct.         Accordingly, sufficient evidence

supports the third element.

      The fourth element of contempt—obstructing the administration of

justice—requires proof that Appellant’s conduct significantly disrupted judicial

proceedings. Williams, 753 A.2d at 863. The Pennsylvania Supreme Court

has concluded that a challenge to “the preservation of the court’s authority”

is a “significant disruption in [a] judicial proceeding[]” because it “obstructs

the efficient administration of justice and demeans the court’s authority.”

Commonwealth v. Falana, 696 A.2d 126, 129 (Pa. 1997) (citation omitted)

Williams, 753 A.2d at 863.

      We conclude that Appellant’s conduct meets this fourth element. The

disruption at issue was Appellant’s defiance of the court’s directive to stop

using the cellphone in the courtroom. While Appellant’s continued use of his

cellphone did not cause significant delay in the judicial proceedings,

Appellant’s defiance by continuing to use the cellphone in the courtroom was

a challenge to the court’s authority. Falana, 696 A.2d at 129; Williams, 753

A.2d at 863. If the trial judge had not held Appellant in contempt of court,

Appellant’s defiance “[may] have eroded the Court’s authority” and

jeopardized the “sanctity and balance of the courtroom.” Williams, 753 A.2d

at 863. Accordingly, the fourth element was met.




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      In sum, we conclude that the evidence supports the trial court’s

decision.   Therefore, the trial court did not abuse its discretion in finding

Appellant guilty of criminal contempt.     Accordingly, Appellant’s sufficiency

challenge warrants no relief.

      In his second issue, Appellant challenges discretionary aspects of his

sentence. He contends that his sentence was excessive and inappropriate,

asserting that because his actions were neither “belligerent nor openly

defiant,” a punishment of imprisonment was unwarranted. Appellant’s Br. at

23.

      A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue, we must determine: (1) whether appellant has

filed a timely notice of appeal; (2) whether the issue was properly preserved

at sentencing or in a motion to reconsider and modify sentence; (3) whether

appellant’s brief has a fatal defect; and (4) whether there is a substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006).

      In the instant case, Appellant met the first three elements by filing a

timely Notice of Appeal, properly preserving the issue in a Motion for

Reconsideration, and including a Statement of Reasons Relied Upon for


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Allowance of Appeal pursuant to Pa.R.A.P. 2119(f).          Thus, we proceed to

address whether Appellant’s sentencing challenge raises a substantial

question for our review.

      Whether a substantial question has been raised is determined on a case-

by-case basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010). “A substantial question exists only when the appellant advances a

colorable argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.”            Id.

(citation and quotation omitted).

      A sentence for criminal contempt must be for a determinate term of

imprisonment or a fixed fine. Commonwealth v. Falkenham, 452 A.2d 750,

757 (Pa. Super. 1982). A sentence of imprisonment must comply with the

Sentencing Code, which “mandates that the court impose a maximum

sentence, but also a minimum sentence which shall not exceed one-half of the

maximum.” Williams, 753 A.2d at 865 (citing 42 Pa.C.S. § 9756(b)). The

maximum sentence for a summary criminal contempt conviction may not

exceed six months.    Commonwealth v. Mayberry, 327 A.2d 86, 89 (Pa.

1974); Falkenham, supra at 758.         As noted above, the court sentenced

Appellant to a term of five to ten days of incarceration.

      Appellant’s argument is, essentially, that he disagrees with the

imposition of incarceration as a sanction. While he acknowledges that it is


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within the court’s discretion to fashion a sentence, Appellant asserts that he

should not be incarcerated because lesser sanctions were available.

Appellant’s Br. at 21. Appellant fails to present a “colorable argument” that

the judge imposed a sentence inconsistent with the Sentencing Code or

contrary to the fundamental norms underlying the sentencing process. Since

the sentence of five to ten days of incarceration is well within the six month

maximum sentence permitted for summary criminal contempt sanctions,

Appellant has failed to raise a substantial question. Accordingly, this claim

fails.

         Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2019




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