J-S59028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAKYRA THOMAS

                            Appellant                  No. 337 EDA 2014


           Appeal from the Judgment of Sentence December 5, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-MD-0003190-2013


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED OCTOBER 07, 2016

        Appellant, Shakyra Thomas, appeals from the judgment of sentence

entered on December 5, 2013 after she was found guilty of direct criminal

contempt. 1     We affirm.

        The trial court summarized the relevant factual background and

procedural history as follows:

          At the Justice Juanita Kidd Stout Center for Criminal Justice,
          the First Judicial District permits persons to bring cell
          phones and other electronic devices into the courtroom, but
          requires that those devices not be seen, heard, or used.
          Prominently displayed in the lobby of the courthouse, in
          every elevator and on the doors outside of every courtroom
          is a sign that provides the following:



____________________________________________


1
    42 Pa.C.S.A. § 4137(a)(1).



*Former Justice specially assigned to the Superior Court.
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          By the Order of the Court, all cell phones and other
          electronic devices that are brought to the courtroom and
          not powered off and out of sight may be confiscated and
          searched by the court. Failure to comply with this policy
          may result in sanctions, including punishment for
          criminal contempt and expulsion from the courtroom.

       On December 5, 2013, the court began its list in Courtroom
       803 at 8:30 a.m. Court staff announced the court’s cell
       phone and electronic device policy when court began and
       one or two times after that during the day.              At
       approximately 1:05 p.m., the court was conducting a
       sentencing hearing when the court’s attention was drawn to
       [Appellant]. She was seated in the gallery and was using
       her cell phone. The court could see that the screen was not
       blank and that other persons nearby were looking at the
       screen. [Appellant] and those looking at the screen were
       giggling.

       Based on the court’s direction, court staff confiscated
       [Appellant’s] cell phone. The court appointed the Public
       Defender to represent [Appellant] and stated that the court
       would hold a hearing on [her] direct criminal contempt.

       [Five minutes later, a cell phone owned by Jawanda Wright
       (an appellant in a related appeal) made a noise and Ms.
       Wright’s cell phone was also confiscated.]

       At the hearing, the court heard from [Appellant], Ms.
       Wright, and Ms. Price, who is [Appellant’s] sister. The court
       learned that the three of them were present in court with
       Ms. Price’s four-year-old daughter to support Ms. Wright’s
       daughter [].    Ms. Price testified that her four-year-old
       daughter took the phone out of a bag, that [Appellant] took
       the phone from the young girl and hit her hand, and then
       the young girl laughed alone. [Appellant] only stated that
       she was present to support her friend. [Ms. Wright contends
       she was only turning her phone off.]

       The court held [Appellant] and Ms. Wright in direct criminal
       contempt based on its observations that they both
       obstructed the court’s proceedings as a result of their failure
       to follow the directions concerning cell phones that are
       posted all over the courthouse.            Defense counsel

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         recommended a sentence of no further penalty for
         [Appellant] and Ms. Wright. The court agreed with the
         recommendation and sentenced [Appellant] and Ms. Wright
         to no further penalty.

         When determining what to do with the cell phones that were
         in the possession of the court, the court explained that it
         intended to keep the cell phones as evidence at least during
         the [30]-day appeal period. [Appellant] and Ms. Wright
         decided to waive their right to an appeal and the court,
         therefore, returned the phones to them.           The court
         conducted a colloquy in support of its findings that
         [Appellant] and Ms. Wright properly waived their right to an
         appeal. Counsel for [Appellant] and Ms. Wright agreed that
         the waiver was knowing, intelligent and voluntary.

Trial Court Opinion, 12/29/15, at 2-4 (internal citations omitted). Appellant

then filed a post-sentence motion, asking the court to vacate its contempt

verdict, claiming she had been coerced into waiving her right to appeal. The

trial court denied the motion on January 13, 2014.          This timely appeal

followed.2

       Appellant presents two issues for our review:

       1. Did [] the [trial] court violate due process of law by extorting
       an involuntary waiver of [Appellant’s] appellate rights as the
       ransom for the safe return of her cell phone?

       2. Was [] the evidence insufficient to prove contempt in that
       there was no intent to disrupt proceedings and no actual
       obstruction of the administration of justice?

____________________________________________


2
   Appellant filed a notice of appeal on January 17, 2014 and was directed by
the trial court to file a concise statement of errors complained of on appeal,
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant
timely filed her Rule 1925(b) statement and, within the statement, Appellant
listed the issues she currently raises on appeal.



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Appellant’s Brief at 3.

      In considering an appeal from a contempt order, we give great

deference to the trial court. Commonwealth v. Williams, 753 A.2d 856,

861 (Pa. Super. 2000), citing Commonwealth v. Jackson, 532 A.2d 28,

31-32 (Pa. Super. 1996). Because each trial court is the “exclusive judge of

contempts against its process,” we will only reverse the trial court’s decision

if there is a plain abuse of discretion. Id. We are limited to examining the

record to determine if the facts of record support the trial court’s decision.

Id.   We must evaluate the record and consider all evidence actually

received. Id.

      Appellant first argues that her waiver of appellate rights was

involuntary. Appellant’s Brief at 7. The right to appeal can only be waived if

it is a knowing and intelligent act.    Commonwealth v. Dosch, 501 A.2d

667, 670 (Pa. Super. 1985).     Appellant’s assertion is unsupported by the

record.   The trial court found Appellant had knowingly, intelligently, and

voluntarily waived her appellate rights.     N.T. Hearing, 12/5/13, at 52.

Further, Appellant’s counsel testified that she believed the waiver was

knowing, voluntary, and intelligent. Id. at 51. In addition, the trial court

conducted a thorough colloquy to determine whether Appellant understood

her right to appeal, had spoken to her attorney, and was voluntarily,

knowingly, and intelligently waiving her appellate rights.         Id. 47-52.

Although Appellant is now asserting that the trial court coerced her to waive


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her rights by holding her cell phone, she testified during her colloquy that no

one, including the court, had coerced her to waive her rights.     Id. 49-50.

Appellant is bound by the statements she made during her colloquy and

cannot    now    obtain    relief   by   contradicting    those   statements.

Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. Super. 1996); see

also Commonwealth v. Bishop, 645 A.2d 274, 277 (Pa. Super. 1994)

(holding an appellant cannot obtain relief by claiming he lied during his

waiver colloquy); Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa.

Super. 2002) (holding an appellant was not entitled to relief based on the

claim that his attorney coerced him to plead guilty when he stated in his

plea colloquy that he was not being forced or threatened).

      Further, the record does not support Appellant’s contention of

coercion. The fact that Appellant chose to re-acquire her lawfully confiscated

cell phone instead of appealing her direct criminal contempt conviction does

not make her decision to waive her appellate rights involuntary. Appellant

used her cell phone to commit an unlawful act and accordingly, it was proper

for the court to seize her phone and retain possession of it.             See

Commonwealth v. Durham, 9 A.3d 641, 645 (Pa. Super. 2010). The trial

court gave Appellant an accommodation by allowing her an opportunity to

have her cell phone returned immediately, but Appellant was free to refuse

this option and appeal the trial court’s decision.    Further, the trial court

allowed Appellant to bypass the requirement that she file a motion seeking


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return of her property. See Pa.R.Crim.P. 588. Appellant now contends there

was no need for the trial court to seize her phone, as she did not dispute

that she possessed it. However, she did not raise this objection before the

trial court and has accordingly waived this issue. Pa.R.A.P. 302(a).

      For these reasons, we find Appellant’s waiver was not involuntary.

Accordingly, she waived her right to appellate review.     However, we will

address her argument that the evidence was insufficient to prove contempt,

as we find it to be without merit.

      When reviewing a claim of sufficiency of the evidence, we must

determine whether “the evidence at trial, and all reasonable inferences

derived therefrom, when viewed in the light most favorable to the

Commonwealth . . ., are sufficient to establish all elements of the offense

beyond a reasonable doubt.”      Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013).

      Trial courts have the power to impose summary punishment for

contempt of court. 42 Pa.C.S.A. § 4132. Contempt proceedings are criminal

if they “have as a dominant purpose the vindication of the dignity and

authority of the court and to protect the interests of the public.”

Commonwealth v. Marcone, 410 A.2d 759, 762 (Pa. 1980).                 Criminal

contempt is divided into direct and indirect contempt. Id. A direct criminal

contempt is “misconduct of a person in the presence of the court, or

disobedience to or neglect of the lawful process of the court, or to


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misbehavior so near thereto as to interfere with the immediate business of

the court.” Id. Here, Appellant argues that there was no evidence sufficient

to demonstrate she intended to disrupt proceedings to cause an obstruction

of justice. Appellant’s Brief at 9.

      Evidence is sufficient to establish criminal contempt where there is

proof: “(1) of misconduct, (2) in the presence of the court, (3) committed

with intent to obstruct the proceedings, and (4) that obstructs the

administration of justice.” Commonwealth v. Moody, 125 A.3d 1, 5 (Pa.

2015).

      Appellant’s behavior constituted misconduct. Misconduct is “behavior

inappropriate to the actor.” Commonwealth v. Falana, 696 A.2d 126, 129

(Pa. 1997).   Here, Appellant had her cell phone present in the courtroom

without it being turned off and out of sight. This is a direct violation of the

court order posted on signs throughout the courthouse, including the lobby

and all elevators. N.T. Hearing, 12/5/13, at 7-9. Appellant asserts she was

only turning off her cell phone when it was confiscated, but this directly

contradicts the record.   The trial court saw Appellant using her cell phone

and laughing with others over what they were viewing on the phone. Id. at

5-6 and 9-11. Her actions clearly constitute misconduct.

      Appellant does not dispute that her misconduct occurred in the

presence of the court, as it occurred when the trial court judge was clearly

present.   Appellant’s Brief at 10.   However, Appellant contends that the


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element of intent is not met because she did not intend to disrupt the

proceedings.

      Intent can be found if the offender “knows or should reasonably be

aware that his conduct is wrongful.”   Falana, 696 A.2d at 129. Appellant

concedes that she knew her conduct of having her cell phone turned on was

wrongful.   Nevertheless, Appellant contends that she was not aware that

turning her cell phone off was wrongful as well.    Appellant’s Brief at 10.

However, if she knew having her phone turned on was wrongful, she should

have reasonably known that any use of the cell phone in the courtroom was

wrongful. Even if she were only turning the phone off, she could have and

should have exited the courtroom so as not to disrupt the court proceedings

and further violate the order.

      Finally, Appellant argues that the second it took to power her phone

down and the small noise it made did not constitute a significant disruption

to constitute an obstruction of justice. Appellant’s Brief at 10. To obstruct

justice, conduct must significantly disrupt proceedings, requiring “actual,

imminent prejudice to a fair proceeding or prejudice to the preservation of

the court’s orderly procedure and authority.”    Falana, 696 A.2d at 129.

Despite Appellant’s argument that her actions were not significant, her

disregard for the court order disrupted the sentencing proceeding being

conducted by the court. N.T. Hearing, 12/5/13, at 5-7. Further, as the trial

court correctly noted, cell phones in courtrooms “present unique and


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important challenges.” Trial Court Opinion, 12/29/15, at 4. Cell phones can

create potential security issues and can prevent witnesses from feeling safe

in testifying before the tribunal.        Further, Appellant’s misconduct was in

open disregard to the trial court’s authority and the court’s order prohibiting

cell phone use in court. Without punishing Appellant, the court’s authority

would have been eroded and the ability to control the courtroom would have

been threatened. See Williams, 753 A.2d at 863 (noting failing to respond

to misconduct would have eroded the court’s authority). Appellant’s

misconduct obstructed the administration of justice.        Accordingly, even if

Appellant had not waived her right to appeal, she would not be entitled to

relief.

          Judgment of sentence affirmed.

          Bender, P.J.E. joins this memorandum.

          Fitzgerald, J. notes dissent.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2016




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