J-S40023-17


                                  2017 PA Super 234

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSHUA ROBINSON,                           :
                                               :
                      Appellant                :   No. 1536 EDA 2014

                Appeal from the Judgment of Sentence May 5, 2014
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: MC-51-MD-0000750-2014


BEFORE: OTT, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY DUBOW, J.:                                      FILED JULY 19, 2017

        Appellant, Joshua Robinson, appeals from the Judgment of Sentence

imposed in connection with six summary criminal contempt convictions

incurred in the Court of Common Pleas of Philadelphia County on May 5,

2014.1 After careful review, we affirm.

        Appellant sought to represent himself in connection with numerous

offenses pending against him, including Robbery and Attempted Murder.2

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   The court imposed six consecutive terms of three to six months’
incarceration, one for each contempt conviction, for an aggregate of 18 to
36 months’ incarceration, and a $100 fine for Appellant’s first contempt
conviction.
2
    Appellant had allegedly shot at a police officer.
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On May 5, 2014, the trial court held a Grazier3 hearing.                 The court first

reviewed Appellant’s mental health evaluation, in which a psychiatrist

concluded that, although Appellant “was at times not cooperative with the

interviewer’s    questions[,]”      he   was   “capable    of   taking   part   in    legal

proceedings.”     N.T., 5/5/14, at 5. The trial court then began the Grazier

colloquy by asking Appellant his age.               Before answering the question,

Appellant immediately interrupted the proceedings by asking if he could “say

something before we begin[.]” Id. at 6. Appellant then asked the trial court

numerous      questions     about    the   nature    of   the   proceedings     and     his

representation by counsel. After several more questions, Appellant claimed

to be confused about his status as the defendant:

       THE DEFENDANT: …You saying I am the defendant?

       THE COURT: Yes.

       THE DEFENDANT: I’m the defendant?

       THE COURT: You are a defendant Mr. Robinson, yes.

       THE DEFENDANT: You sure?

       THE COURT: Mr. Robinson, I am not going to play games with
       you. I have a mental health examination that indicates that you
       are not cooperative. You did this in my courtroom the last time
       we had you.

       THE DEFENDANT: That wasn’t me. You sure?

N.T., 5/5/14, at 7-8.
____________________________________________


3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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      Appellant continued arguing with the trial court, and the sheriff

ordered Appellant to “[c]alm down.” Id. at 9. The transcript indicates that

Appellant’s misbehavior escalated during the remainder of the hearing, with

the trial court finding Appellant in direct criminal contempt six times, as

follows:

      THE COURT: Why are you asking me if I am sure you are a
      defendant?

      THE DEFENDANT: I am just confused. I just --

      THE COURT: No, no. Answer my questions.

      THE DEFENDANT: I mean, you yelling --

      THE COURT: Answer my questions.

      THE DEFENDANT: That doesn’t help me understand.       I cannot
      answer --

      THE COURT: I am holding you in contempt for willfully trying to
      disrupt the operation --

      THE DEFENDANT: I --

      THE COURT: Shut up while I am talking. Three to six months for
      contempt.

      THE DEFENDANT: I don’t consent to that.     I don’t consent to
      that.

      THE COURT: I will ask you again; answer my question. Why are
      you questioning me --

      THE DEFENDANT: I would love to.

      THE COURT: Stop interrupting me.

      THE SHERIFF: Chill out.


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     THE COURT: Stop.

     THE DEFENDANT: I would love to answer your question.

     THE COURT: Why did you ask -- consecutive three to six months
     and a hundred dollar fine.

     THE DEFENDANT: I don’t consent to that.         I don’t consent to
     that.

     THE COURT: I will ask you again: Why are you asking me
     whether I consider you a defendant? I don’t understand why
     would you say you are not a defendant. You have two criminal
     cases pending against you in my courtroom, so why are you
     considering yourself not a defendant? Answer that question.

     THE DEFENDANT: I would love to answer that question.

     THE COURT: Go ahead. I am waiting.

     THE DEFENDANT: Soon as somebody comes forth with evidence
     that I have liability here in this instant matter. I mean, me, as a
     man --

     THE COURT: Does the Commonwealth have any thoughts on
     this? He is not cooperating. I guess he’s attacking -- what I
     think he’s doing is trying to attack the jurisdiction of the Court --

     THE DEFENDANT: What jurisdiction? Which --

     THE COURT: -- which isn’t getting far.        Be quiet while I am
     talking.

     THE SHERIFF: Don’t talk.

     THE COURT: Three to six months contempt consecutive to the
     other two contempts.

     THE DEFENDANT: I don’t consent to that.

     THE COURT: A fourth contempt, three to six months
     consecutive. You are now serving 12 to 24 months in contempt.
     Who is handling this for the Commonwealth?


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     MR. FURBER: I am.

     THE COURT: Is the Commonwealth in any way prejudiced in
     giving this a regular date until he decides to behave himself and
     act like a civilized human in the courtroom and stop trying to
     disrupt the proceedings of my courtroom? I have 14 cases. I
     don’t have the time to do this all day. You did this before when
     you were in my courtroom. You didn’t cooperate with the
     mental health --

     MR. FURBER: Judge, I have no problem giving it a regular date.
     Here’s my issue: Obviously, the way the defendant is acting, I
     don't think --

     THE COURT: He’s just trying to disrupt the operations of the
     courtroom. That’s what he’s trying to do.

     MR. FURBER: The way I see this going forward, Judge, is, I don’t
     think this is a case in which he should be representing himself
     because he would just be disruptive the entire trial.

     THE COURT: I have a feeling you are right about that, too.

     MR. FURBER: This is a case where Mr. Robinson will not be
     present at his trial but can watch --

     THE DEFENDANT: I don’t consent --

     THE COURT: Stop interrupting the district attorney. Three to six
     months consecutive, holding you in contempt. You are now
     serving 15 to 30 months for contempt. We won’t have to worry
     about felonies of the first degree pretty soon.

                              *     *     *

     THE COURT: Take him away.

     THE DEFENDANT: I would be more than willing to consent to
     that --

     THE COURT: Good-bye.

     THE DEFENDANT: -- on the condition that somebody explain the
     nature of these charges.

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J-S40023-17



       THE COURT: Good-bye, Mr. Robinson.

       MR. FURBER: Could he be advised of the appeal rights for the
       contempt issues?

       THE COURT: Yes. Ten days to file a --

       THE DEFENDANT: You --

       THE COURT: -- motion to reconsider and 30 days --

       THE DEFENDANT: I can’t consent to that.

       THE COURT: Shut up. Stop interrupting me. You constantly
       interrupt me. I will hold you in another contempt, 18 to 36
       months for six contempts. Give this a regular date.

N.T., 5/5/14, at 9-13, 16-17.

       At that point, the court continued the proceedings in each of

Appellant’s scheduled criminal matters, and the sheriff removed Appellant

from the courtroom.         The court also ordered that Appellant undergo an

additional mental health evaluation.

       On May 15, 2014, Appellant filed a timely Notice of Appeal. The trial

court did not order Appellant to file a Pa.R.A.P. 1925(b) Statement of Errors.

The trial court filed a brief Pa.R.A.P. 1925(a) Opinion and summarily opined

that Appellant’s appeal was interlocutory and should be dismissed.4

____________________________________________


4
   Appellant’s Judgment of Sentence for his six direct criminal contempt
convictions constitutes a final Order, which is immediately appealable. See
Pa.R.A.P. 341; Commonwealth v. Ashton, 824 A.2d 1198, 1201 (Pa.
Super. 2003) (“A person’s right to appeal from a criminal contempt citation
is immediate.”).



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J-S40023-17


       Appellant presents the following issue for our review:

       Do Appellant’s consecutive sentences constitute a violation of
       Double Jeopardy because Appellant’s consecutive sentences
       stem from one instance of contempt?

Appellant’s Brief at 4.      Appellant argues that his actions constituted “one

instance of contempt,” that is, his “contesting the trial court’s jurisdiction

over Appellant.”     Appellant’s Brief at 8-9.            Relying on Commonwealth v.

Williams, 753 A.2d 856 (Pa. Super. 2000), Appellant contends that the trial

court’s six consecutive sentences for his “single offense” violated Double

Jeopardy.5 Appellant’s Brief at 10.

       As this Court has made clear, Double Jeopardy claims “implicate the

fundamental legal authority of the court to impose the sentence that it did”

and,    therefore,    challenge      the       legality    of   the   sentence    imposed.

Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007).

       Both the U.S. and the Pennsylvania Constitutions provide that “[n]o

person shall . . . for the same offence . . . be twice put in jeopardy of life or

limb. . . .”    U.S. Const. amend. V; Pa. Const. art. I, § 10.                   The rights

provided by the two clauses are “coextensive.” Commonwealth v. States,

938 A.2d 1016, 1019 (Pa. 2007). Because the protections afforded by each

____________________________________________


5
  Although Appellant frames the issue as a Double Jeopardy claim, Appellant
effectively challenges the sufficiency of the evidence to support his several
contempt convictions. Appellant’s Brief at 8-10. Significantly, Appellant
does not argue that his actions were not contemptuous, were not committed
in the presence of the court, or did not obstruct the administration of justice.



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Constitution are identical, we utilize “a unitary analysis of the state and

federal double jeopardy clauses[.]” Commonwealth v. Schmidt, 919 A.2d

241, 250 (Pa. Super. 2007) (citation omitted).

      “The protections afforded by double jeopardy are generally recognized

to fall within three categories: (1) protection against a second prosecution

for the same offense after an acquittal; (2) protection against a second

prosecution for the same offense after conviction; and (3) protection against

multiple punishments for the same offense.”          Id.   Most relevant to

Appellant’s argument, we observe that the double jeopardy clause “prohibits

the Commonwealth from punishing an accused twice for the same offense.”

Commonwealth v. Owens, 649 A.2d 129, 137 (Pa. Super. 1994).

      With respect to contempt, our Supreme Court has held that “[t]he

power to punish for contempt, including the power to inflict summary

punishment, is not derived by statute but rather is a right inherent in courts

and is incidental to the grant of judicial power under Article 5 of our

Constitution.”   Commonwealth v. Marcone, 410 A.2d 759, 763 (Pa.

1980); see also Commonwealth v. McMullen, 961 A.2d 842, 849 (Pa.

2008) (observing “[c]ontempt of court is unlike other substantive crimes.

The Crimes Code abolished common law crimes, 18 Pa.C.S.[] § 107(b), but

also provided in its preliminary provisions that ‘this section does not affect

the power of a court to declare forfeitures or to punish for contempt or to

employ any sanction authorized by law for the enforcement of an order’”).


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      Notwithstanding this inherent power in the courts, our legislature has

sought to define the crime of contempt and regulate the punishment for its

commission. Section 4132 of the Judicial Code provides:

      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:

                                  *      *    *

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

42 Pa.C.S. § 4132.

      “[T]o sustain a conviction for direct criminal contempt under this

provision there must be proof beyond a reasonable doubt: (1) of

misconduct, (2) in the presence of the court, (3) committed with the intent

to obstruct the proceedings, (4) that obstructs the administration of justice.”

Williams, 753 A.2d at 856.        “Much weight should be given to the trial

court’s judgment in assessing the necessities of a particular situation.”

Commonwealth v. Moody, 125 A.3d 1, 12 (Pa. 2015).                “A trial court’s

finding of contempt will not be disturbed absent an abuse of discretion.” Id.

      In Commonwealth v. Owens, 436 A.2d 129 (Pa. 1981), our

Supreme    Court     affirmed   three   contempt   convictions   imposed    after

contemptuous outbursts by a defendant who wanted to dismiss his attorney

and obtain new counsel just before closing arguments in his jury trial. Id. at

130-31.   In pursuit of his desire to obtain new counsel, the defendant

caused a physical disturbance in the courtroom during a hearing out of the

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J-S40023-17


jury’s presence, and then proceeded to interrupt the proceedings further

when the jury returned to the courtroom for closing arguments. Id. at 130-

32. The trial court summarily found the defendant in contempt after each

outburst, imposed three consecutive sentences of six months’ incarceration

for a total of eighteen months’ incarceration, and declared a mistrial. Id.

       Our Supreme Court affirmed Owens’ three summary contempt

convictions and the consecutive sentences imposed, even when considering

the brief period of time in which the acts occurred as well as the single

motivation of dismissing his attorney and obtaining new counsel.6 Id.

       Here, Appellant’s conduct and misbehaviors during the hearing

constituted six distinct contemptuous acts obstructing the administration of

justice.   Appellant persisted in his misbehaviors despite the trial court’s

warnings, despite the efforts of the sheriff, and despite the contempt

sentences preceding each subsequent contemptuous act.                  Appellant’s

conduct obstructed the administration of justice with respect to the trial

court’s other cases that day.          Appellant also obstructed the trial court’s

resolution of his own Grazier hearing, which was continued and delayed the

pending trial, in addition to Appellant’s other matters scheduled for trial in

another courtroom pending resolution of the Grazier hearing. N.T., 5/5/14,

____________________________________________


6
  Owens did not raise a Double Jeopardy claim; rather, Owens challenged
the sufficiency of the evidence and raised a due process claim challenging
the adequacy of the summary proceedings. Owens, 436 A.2d at 130, 133.



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J-S40023-17


at 22-23. Further, as a result of Appellant’s misconduct in the courtroom,

the trial court ordered an additional mental health evaluation, which added

even more delay to the proceedings. Id. at 26-27. The record adequately

supports six distinct findings of direct criminal contempt in light of

Appellant’s misbehaviors.

      Appellant’s novel assertion that this Court should focus narrowly on

examining the motivation behind his actions when deciding how many

contemptuous acts occurred is unsupported by the case law.          It is of no

moment that Appellant decided to contest the trial court’s jurisdiction.

      We further note that Appellant’s reliance on Williams is misplaced.

After he was sentenced, Williams gave the trial court the middle finger and

at the same time stated, “F—k You.”        Williams, supra at 859.    The trial

court found Williams in contempt for the finger gesture and, separately, for

the verbal remark. For each of the two contempt convictions, the trial court

stated its intent to sentence Williams to five months and twenty-nine days

imprisonment to be served consecutively. On appeal, Williams argued, inter

alia, that the consecutive sentences violated the Double Jeopardy clauses of

the Pennsylvania and United States Constitutions.         This Court agreed,

concluding    that   the    “verbal   utterance   and   hand   gesture     were

contemporaneously executed, and Appellant's hand gesture is universally

recognized throughout Western civilization as having the same meaning as

his foul utterance.”   Williams, supra at 864.       Accordingly, the conduct


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constituted “one unified act of contemptuous misconduct directed toward the

[t]rial [c]ourt[.]” Id. at 864-65.

      Here,    Appellant’s      actions     did      not      constitute   one     unified

contemporaneous act similar to Williams. Rather, Appellant committed six

separate contemptuous acts during his hearing while paying absolutely no

heed to the court’s admonitions and instructions.                      Our resolution is

necessary to vindicate the authority of trial courts to maintain order in the

courtrooms of this Commonwealth and to punish offenders who obstruct the

administration of justice through their misdeeds in the court’s presence.

Accordingly, we conclude that the trial court did not abuse its discretion and

we   discern   no   violation   of   Double        Jeopardy    under    these    particular

circumstances.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




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