J-A02036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    MASSAI SHAWN DICKEY,

                             Appellant                 No. 700 WDA 2017


           Appeal from the Judgment of Sentence entered May 1, 2017,
                in the Court of Common Pleas of Cambria County,
              Criminal Division, at No(s): CP-11-MD-0000604-2017.


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED MARCH 9, 2018

         Appellant, Massai Shawn Dickey, appeals from the judgment of sentence

imposed after the trial court found him in direct criminal contempt of court. 1

We affirm.

         The pertinent facts and procedural history are as follows: On April 10,

2017, the Commonwealth called Dickey to testify as a witness in a murder

trial.    Dickey took the witness stand, was sworn in, and began to give

testimony.      In response to further questioning by the Commonwealth,

however, Dickey stated, “I can’t do this.” N.T., 4/10/17, at 4. When the trial

court spoke with the attorneys for the parties at sidebar, defense counsel



____________________________________________


1   42 Pa.C.S.A. § 4132(3).
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informed the court that Dickey had other criminal charges pending, and that

Dickey had a separate attorney in that matter.

      The trial court took a recess and contacted the attorney who represented

Dickey in his criminal case. After speaking with him, the trial court placed on

the record the fact that, although Dickey’s attorney was unaware that Dickey

would be testifying at the murder trial, he did not have any objection to Dickey

testifying because the murder case was unrelated to the criminal charges that

Dickey was facing.

      Dickey then returned to the witness stand, and the Commonwealth

resumed its questioning of him. Once again, Dickey stated, “Yes. See, I can’t

do this, I plead the fifth.” N.T., 4/10/17, at 9. The trial court informed Dickey

that it was compelling him to answer, but Dickey replied, “I just won’t answer.”

Id. After the court and the parties’ counsel discussed whether, given Dickey’s

refusal to testify, the Commonwealth would be allowed to play an audio

recording of his previous conversations with the police, the trial court directed

the Commonwealth to call its next witness, and stated that it would address

Dickey’s refusal to testify at the next recess and without the jury present.

      After the trial court called the recess, and the jury left the courtroom,

the trial court addressed counsel for the parties as follows:

         So I wanted to address the issue of [Mr. Dickey]. There is
         no one else in the courtroom right now, so that works. If
         Mr. Dickey refuses to testify what I would like to do is have
         the Commonwealth put in an offer of proof as to the
         testimony that they intend to elicit outside of the hearing of
         the jury and then we’ll bring Mr. Dickey up. And assuming,
         as both counsel had indicated from both sides, that they do

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         not believe this testimony is eliciting in any way a Fifth
         Amendment issue, and based on your offer, I will inform him
         that the Fifth Amendment does not apply to the testimony
         that is being sought to be elicited and I will order him to
         testify or be held in contempt. And I will let him know that
         he can purge that contempt if he decides at some point to
         testify. I will inform him that the contempt would be
         consecutive to anything else, but then his [previous]
         statement if he does not testify cannot be introduced.

N.T., 4/10/17, at 12-13.

      The Commonwealth then set forth its offer of proof.        The trial court

determined that, based upon this offer, Dickey could not legitimately assert

his Fifth Amendment right not to testify in the murder case.

      Dickey again took the stand, outside the presence of the jury, and the

trial court informed him that there would be nothing in his proposed testimony

that would incriminate him. The trial court further ordered Dickey to answer

the questions posed by the Commonwealth or be held in contempt of court.

Dickey still refused to testify. The trial court then explained to Dickey that it

was finding him in contempt, but it would postpone sentencing him so he

would still have the opportunity to testify should he change his mind.

      The murder trial ended with a guilty verdict, but Dickey never testified.

As a result, the trial court scheduled a hearing where Dickey’s counsel could

attend and present any defenses or additional information to the trial court,

before the court sentenced Dickey for contempt.

      The trial court held this hearing on May 1, 2017. The Commonwealth

entered the pertinent excerpt from the murder trial where Dickey refused to



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testify. The Commonwealth then summarized the relevant proceedings and

rested.

      Dickey then took the stand and testified that he met with detectives and

attorneys for the Commonwealth regarding the murder trial on multiple

occasions. He further testified that they reviewed his previous statements

with him, and even conceded that they purchased clothes for him to wear at

the murder trial. However, Dickey ultimately confessed that he did not testify

because he was worried about his family’s safety.

      The Commonwealth then called Detective Brett Hinterliter in rebuttal.

He testified that he had met with Dickey multiple times, including the Friday

before the murder trial was to begin. Detective Hinterliter stated that Dickey

was to testify that he had seen the murder defendant on the night of the

shooting and that the defendant was wearing a grey sweat suit. According to

the detective, the Commonwealth believed this testimony to be important

because Dickey was one of the few witnesses who could place the defendant

near the scene before the shooting while wearing a grey sweat suit. Detective

Hinterliter testified that, although Dickey may have appeared nervous during

their meetings prior to trial, he never stated to the detective, or any

representative of the Commonwealth, that he was afraid to testify out of fear

for himself or his family.

      After hearing the arguments of counsel, the trial court found Dickey in

contempt, and ultimately sentenced him to three to six months in prison,




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consecutive to any sentence Dickey was then serving.           This direct appeal

followed. Both Dickey and the trial court have complied with Pa.R.A.P. 1925.

      Dickey raises the following issue:

           1. Did the Trial Court err in finding that [Dickey] was in
              contempt of Court pursuant to 42 Pa.C.S.A. §4132(3) as
              [he] did not have the intent to obstruct the
              administration of justice, nor did [his] conduct obstruct
              the administration of justice, nor hamper the efforts of
              the prosecution?

Dickey’s Brief at 4.

      Our standard of review is as follows:

           We have held that in considering an appeal from a contempt
           order, we place great reliance on the discretion of the trial
           judge. Each court is the exclusive judge of contempts
           against its process, and on appeal its actions will be
           reversed only when a plain abuse of discretion occurs. In
           cases of direct criminal contempt, that is, where the
           contumacious act is committed in the presence of the court
           and disrupts the administration of justice, an appellate court
           is confined to an examination of the record to determine if
           the facts support the trial court’s decision.

Commonwealth v. Moody, 46 A.3d 765, 771 (Pa. Super. 2012) (citation

omitted), reversed on other grounds, 125 A.3d 1 (Pa. 2015).

      A court’s power to impose a summary punishment of contempt is as

follows:

           § 4132. Attachment and summary punishment for
           contempt

              The power of the several courts of this Commonwealth to
           issue attachments and to impose summary punishments for
           contempts of court shall be restricted to the following cases:



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            (1)   The official misconduct of the officers of such
                  courts respectively.

            (2)   Disobedience or neglect by officers, parties, jurors
                  or witnesses of or to the lawful process of the court.

            (3)   The misbehavior of any person in the presence of
                  the court, thereby obstructing the administration
                  of justice.

42 Pa.C.S.A. § 4132.

      Dickey claims that the trial court should not have found him in contempt

pursuant to section 4132(3) because he did not have the intent to obstruct

justice, and that his conduct neither obstructed the administration of justice,

nor hampered the efforts of the prosecution. According to Dickey, he had

expressed a reluctance to testify before the murder trial, and “his failure to

testify did not change or impact the Commonwealth’s prosecution strategy.”

Dickey’s Brief at 10.

      Our Supreme Court has summarized:

            One is guilty of contempt when his conduct tends to bring
         the authority and the administration of the law into
         disrespect. Refusal to obey a court order, which occurs in
         the presence of the court, is contemptuous conduct and may
         result in a finding of direct [criminal] contempt.          An
         individual may be found in contempt for refusing to testify
         after being ordered to do so by the court. That individual
         may not be held in contempt if the refusal to testify is based
         upon a legitimate exercise of the privilege against
         incrimination.

                                     ***

             In the first instance, the trial judge must evaluate the
         use of the privilege against self-incrimination to determine
         whether that proposed use is real or illusory. A trial court’s
         ruling regarding the application of the privilege will not be


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        disturbed on appeal absent a showing of an abuse of
        discretion.

Commonwealth v. Long, 625 A.2d 630, 633-34 (Pa. Super. 1993).

     “A contemnor acts with wrongful intent if he knows or should reasonably

be aware that his conduct is wrongful.” Commonwealth v. Falana, 696 A.2d

126, 129 (Pa. 1997) (citation omitted). “In determining an offender’s mental

state, a court looks to his conduct and the surrounding circumstances.” Id.

     Here, the trial court first found that Dickey possessed the requisite

intent to obstruct the proceedings:

           After hearing the conflicting testimony from [Detective]
        Hinterliter and Dickey, the trial court found [the detective’s]
        testimony that Dickey never indicated his fear or
        unwillingness to testify prior to trial, to be credible. As such,
        the trial court afforded no credibility to Dickey’s testimony
        that he indicated to members of the prosecution, including
        [Detective] Hinterliter, that he was afraid and would be
        unable to testify. As set out by [the Pennsylvania Supreme
        Court], the requisite intent in an contempt proceeding is
        satisfied where the defendant knows or should reasonably
        be aware that his conduct is wrongful and need only have
        intent to obstruct the proceedings.

            Here, Dickey never indicated that he would not testify
        and never indicated his alleged fears. Instead, Dickey
        indicated to the Commonwealth that he planned to
        cooperate and even gave [Detective] Hinterliter his clothing
        sizes so that [the detective] could buy him clothing to wear
        at trial. Then, at trial, Dickey refused to testify by asserting
        his Fifth Amendment rights. The trial court instructed the
        Commonwealth to give an offer of proof as to the contents
        of Dickey’s testimony and, after determining that nothing in
        Dickey’s testimony would incriminate [him], ordered Dickey
        to testify. However, Dickey still refused even after being
        informed by the trial court that he could be held in contempt
        if he refused to testify. At no time during [the murder] trial
        did Dickey ever indicate that he was in fear. Thus, Dickey’s


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         refusal to testify based on an illusory assertion of his Fifth
         Amendment rights even after being instructed by the trial
         court to testify, coupled with his past indications to the
         Commonwealth that he was willing to testify, prove that
         Dickey knew of should have been reasonably been aware
         that his conduct was wrongful. That is, Dickey had the
         requisite intent to obstruct the proceedings during [the
         murder] trial.

Trial Court Opinion, 7/10/17, at 9-10 (citation omitted).

      Our review of the record supports the trial court’s conclusions.         We

cannot disturb the credibility determinations made by the trial court as fact

finder, as this determination was within its exclusive discretion.        Moody,

supra.

      The trial court also found that Dickey’s refusal to testify actually

obstructed the proceedings and/or the administration of justice. First, the trial

court concluded that the record refutes Dickey’s claim that his conduct only

caused a few minutes delay in the proceedings. We agree. Our review of the

record reveals that Dickey’s refusal caused the court to call several sidebars,

jury recesses, and to hold several proceedings without the jury present. In

addition, the trial court found that Dickey’s refusal to testify adversely affected

the prosecution of the murder trial:

            At hearing on May 1, 2017, the Commonwealth indicated
         that Dickey would have testified that he saw [the murder
         defendant] wearing an all grey sweatsuit shortly before the
         shooting and that [the murder defendant] was the only one
         wearing an all grey sweatsuit on the night in question. The
         Commonwealth expected this testimony to support the
         testimony of the only eyewitness to the shooting.
         [Detective] Hinterliter also testified that there were only
         three witnesses whose testimony would corroborate that of


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J-A02036-18


         the eyewitness. Those three witnesses included one woman
         who did testify at [the murder] trial, [Dickey] and another
         woman who could not be located and did not appear to
         testify at [the murder] trial. Thus, although any one of
         these alone may not have risen to the level of actually
         obstructing the proceedings, taken together, Dickey’s
         refusal to testify during [the murder] trial clearly obstructed
         the proceedings and the administration of justice such that
         the fourth element [of] 42 Pa.C.S.A. §4132(3) was met.

Trial Court Opinion, 7/10/17, at 11-12 (citation omitted).

      Once again, our review of the record supports the trial court’s

conclusions. Although the Commonwealth ultimately achieved a guilty verdict

in the murder trial, the record establishes that Dickey’s refusal to testify

adversely affected the prosecution’s strategy in the murder trial.         At the

contempt hearing, Detective Hinterliter testified that the prosecution did not

“reach out to any [other witness] at that point because we were already in the

midst of the second day of trial. And to try to go out and prep other individuals

whose statements did not have as much substantial information in them to

bring them, it would have been difficult.” N.T., 5/1/17, at 16. “There is no

requirement that in order for a witness to be convicted of contempt, he must

completely ‘thwart’ a case.” Commonwealth v. Tirado, 409 A.2d 392, 396

(Pa. 1979). Thus, even though the murder defendant was found guilty, and

there was other evidence the Commonwealth could have presented, Dickey’s

refusal to testify still constituted contempt. Id.

      Finally, the cases cited by Dickey to support his claim on appeal are

easily distinguishable as they involved a contempt finding against counsel for

one of the parties or the criminal defendant himself. Dickey cites no case law

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involving a contempt finding relating to a witness’s refusal to testify at trial.

Compare, e.g., Tirado, 409 A.2d at 396 (holding that the wife’s evasiveness

as a witness, which ultimately resulted in the dismissal of charges against her

husband, warranted the exercise of judicial power to punish for contempt).

      In sum, for all of the above reasons, the trial court did not commit an

abuse of discretion or error of law in finding Dickey in direct criminal contempt,

and sentencing him for this conduct.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2018




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