J-A30021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

MARVIN HENSON

                            Appellant                    No. 2013 EDA 2014


            Appeal from the Judgment of Sentence January 27, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-MD-0010666-2013


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY JENKINS, J.:                            FILED December 24, 2015

        Appellant Marvin Henson appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his

bench trial convictions for robbery, burglary, criminal mischief, criminal

trespass, theft by unlawful taking, receiving stolen property, simple assault,

and summary criminal contempt.1                We reverse and vacate Appellant’s

conviction for summary criminal contempt.

        The trial court set forth the underlying facts of this appeal as follows:

           On October 20, 2012, Makial D. Pryor-Hand [(“Victim”)]
           was inside his home located at 7310 Elmwood Avenue, in
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  This appeal only relates to Appellant’s conviction and judgment of sentence
for criminal contempt, 42 Pa.C.S. § 4132(3). Appellant challenges his other
convictions in a separate appeal, docketed at 1967 EDA 2014.
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       Philadelphia, Pennsylvania. N.T.[,] 10/25/2013[,] at 11.
       Sometime between 10:45 and 11:30 p.m., while [Victim]
       was in the basement of his home, he heard the front door
       to the home open, and then heard footsteps on the floor
       above him. Id. at 11-12. He proceeded up the basement
       steps to investigate. Id. at 13.     There, he witnessed
       [Appellant] standing in his living room. Id at 13-14.
       [Victim] did not know [Appellant]; nor did he give him
       permission to enter his home. Id. at 32.

       [Appellant] then pushed and punched [Victim] and a
       physical altercation ensued, breaking both a dining room
       table and a mirror hanging on the wall. Id. at 15.
       [Appellant] then grabbed [Victim’s] head and pressed his
       thumbs into his eyes. Id. [Victim] fought off [Appellant]
       and escaped, first to the basement of the home, then to a
       nearby convenience store in search of help. Id. at 16.
       After returning to the home while the police were present,
       [Victim] discovered that a 32-inch Vizio television set, a
       tan and blue workbag, a cell phone, and his mother’s
       pocketbook were all missing from the home. Id. at 31.
       Also, a brown bag with liquor and a 7-11 slurpee cup were
       found in the home, neither of which belonged to [Victim].
       Id. at 20.

       On the same night as the incident, [Victim’s] neighbor,
       Martha White ([]“Ms. White”) heard “scuffing” on the wall
       that separates the two homes and her dogs began to bark.
       Id. at 48 - 49. Ms. White went outside to investigate,
       walked to [Victim’s] home and looked into his home
       through the open front door. Id. at 50. There, she
       witnessed a person “throwing stuff like a madman, tossing
       stuff from side to side all over the place” inside [Victim’s]
       home. Id. at 50. Shortly thereafter, Ms. White then saw a
       male exiting [Victim’s] home carrying a flat screen
       television and a tan bag. Id. at 51. Later that same night,
       [Appellant] was observed by police walking on the street
       carrying a 32-inch Vizio television set with blood on his
       wrist and forehead. Id. at 59.

       [Appellant] testified at trial that he did, in fact, take the
       television set and the tan bag from [Victim’s] home
       without permission. Id. at 87. Swabs taken by police from
       the second floor hallway, first floor living room, the 32-

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          inch television, and from the 7-11 cup found in the home
          matched [Appellant’s] DNA profile with a reasonable
          degree of scientific certainty. Id. at 66. [Victim] later
          identified [Appellant] in photographs and in a video shown
          to him by police as the man who attacked him inside his
          home. Id. at 28.

          During his testimony, [Appellant] described sexual activity
          with an alleged prostitute, which he claimed took place the
          night of the robbery. Id. at 760-91. The testimony’s
          purpose was, ostensibly, to establish an alternative,
          permissible reason why [Appellant] was inside [Victim’s]
          home other than to accomplish the theft. [Appellant]
          alleged that he and a prostitute, whom he had just met
          that night, could not determine a suitable location to have
          sex. He claimed that the prostitute then spotted [Victim]
          walking on the street – whom she did not previously know
          – approached him, and requested the use of his home for
          her and [Appellant] to have sex.            Id. at 80-81.
          [Appellant] claimed that [Victim] agreed, for only $25, to
          allow the two complete strangers inside his home for the
          purpose of sex. Id. [Appellant] also alleged that [Victim]
          was more than hospitable, in that he not only provided a
          couch for the two strangers to have sex, but also turned
          on a Brazilian pornographic movie for them, and served
          drinks. Id. at 81-82. The alleged prostitute did not
          testify.

          [Appellant] then depicted the sexual activity with the
          prostitute and its aftermath, which consisted of profane
          language (the “F word,” for example, was voiced four
          times[2] (Id. at 79, 85, 86)); what can only be described
____________________________________________


2
  Appellant did use the “F” word as the court noted, and the court was
obviously offended. The court first objected to Appellant’s language on page
86, when it stated “You have to stop – stop with the language. Okay? Have
some respect for the court.” Appellant said, “My apologies.” He then
omitted the “F” word from his testimony and used “heck” and “I got mad.”
The court did not object again to Appellant’s language until he uttered the
next bad word, “bullshit.”

          THE COURT: …I find you guilty on all charges.
(Footnote Continued Next Page)


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J-A30021-15


          as peculiar slang for lewd aspects; and various, explicit
          details so obscene and sordid that decorum prohibits
          listing them here. Id. at 82-86.[3] While [Appellant]
          testified in this manner, spectators were motivated to
          leave the courtroom. N.T. 1/27/14 at 23. The court twice
          interrupted his testimony and asked [Appellant] to rein in
          the (vulgar) details (N.T. 10/25/13 at 83), stop with the


                       _______________________
(Footnote Continued)


          [APPELLANT]: Oh, that’s some bullshit.

          THE COURT: Excuse me? You want to be in contempt?

          [PROSECUTOR]: Yeah, Judge. I would ask that you hold
          the defendant in contempt, not only for what – the
          outburst—

          THE COURT: You are in contempt –

          [PROSECUTOR]: but for the way he treated the court
          during his testimony.

          [DEFENSE COUNSEL]: Your Honor, for the contempt
          hearing, I’m not prepared for that.

          THE COURT: Okay. We’ll bring him back for it then. We’ll
          do a PSI. You’re in contempt of court. We’ll have a
          contempt hearing at the time of the PSI.

N.T., 10/25/13, at 107-108.
3
  Again, the court was obviously offended, but it seems Appellant was trying
to explain why he was not in the same room as his pants (because he was
getting a rag to clean the couch because the girl spit on it) when Victim stole
his money, which provoked him to fight and steal his TV, which he otherwise
would not have done. The court cut him off and stated “I don’t think we
need all these details. I’m letting the details get a little too far already. Just
get to the -” N.T. at 83. This took place before the court specifically
objected to Appellant’s language. Appellant then continued his story without
any more sexual details.



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J-A30021-15


          language, and to have some respect for the court. Id. at
          86.[4]

          According to [Appellant], after the sexual encounter, he
          noticed money missing from his pants. Id. at 84. He
          stated that he blamed [Victim] for the missing money and
          that the missing money was the catalyst for the physical
          altercation. Id. at 85-86. [Appellant] further alleged that,
          after the physical altercation, he removed items, including
          the television set from [Victim’s] home as reimbursement
          for his missing money. Id. at 87.

          Following the court’s verdict, [Appellant] exclaimed that
          the verdict was “some bull**t.” Id. at 107. Based on
          [Appellant’s] lewd manner of testimony and his outburst
          following the verdict, the court found him in contempt. Id.

                                       *       *   *

          [Appellant] requested and was granted a waiver of a jury
          trial. The bench trial occurred before the Honorable Sean
          F. Kennedy on October 25, 2013. Based on the evidence
          and testimony, [Appellant] was found guilty of Robbery
          (18 [Pa.C.S.] §3701(a)(1)(iv)), Burglary (18 [Pa.C.S.]
          §3502 (c)(1)), and Simple Assault (18 [Pa.C.S.]
          §2701(a)). On January 27, 2014, [Appellant] was
          sentenced to one to two years for robbery, four to eight
          years for burglary, and received no further penalty for the
          simple assault. All sentences were to run consecutively for
          a total of five to ten years.       The court also found
          [Appellant] in contempt for disrespecting the court and its
          proceedings and sentenced him to five (5) months and 29
          days [of incarceration]. 42 [Pa.C.S.] § 4132(3).
____________________________________________


4
  We note that the court additionally warned the prosecutor regarding her
language. After the prosecutor referred to the woman as a “hooker” four
times, the court said, “Can we call her a prostitute, please?” N.T. at 90.
After the prosecutor said “bang her” three times, the court said “Let’s – let’s
–” and the prosecutor curbed her language.           N.T. at 91.    After the
prosecutor said “you’re pissed at him,” the court said, “Counsel.” N.T. at 91.
These incidents took place during cross-examination, after Appellant had
been warned about his language.



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J-A30021-15



Supplemental Trial Court Opinion, filed January 16, 2015, at 1-4.5

       On February 5, 2014, Appellant filed a post-sentence motion to vacate

the verdict or modify the sentence.            On June 5, 2014, Appellant’s post-

sentence motion was denied by operation of law.               On June 20, 2014,

Appellant timely filed a notice of appeal. On December 1, 2014, the court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on December

11, 2014.

       Appellant raises the following issues for our review:

          1. WAS NOT THE EVIDENCE INSUFFICIENT TO FIND,
          BEYOND A REASONABLE DOUBT, THAT APPELLANT WAS
          GUILTY OF CONTEMPT IN VIOLATION OF 42 [PA.C.S.] §
          4132(3), THE PROVISION OF THE CONTEMPT STATUTE OF
          WHICH APPELLANT WAS CONVICTED, IN THAT THE
          EVIDENCE FAILED TO SHOW THAT ACTUAL OBSTRUCTION
          OF THE ADMINISTRATION OF JUSTICE OCCURRED AS THE
          RESULT OF APPELLANT’S CONDUCT, OR THAT APPELLANT
          INTENDED TO OBSTRUCT THE ADMINISTRATION OF
          JUSTICE BY HIS CONDUCT?

          2. WAS NOT THE FINDING OF CONTEMPT IMPROPER
          WHERE THE CONDUCT UPON WHICH THE FINDING WAS
          PREDICATED    WAS  PROTECTED    BY   APPELLANT’S
          FUNDAMENTAL CONSTITUTIONAL RIGHT OF FREE SPEECH
          AND HIS FUNDAMENTAL RIGHT TO TESTIFY ON HIS OWN
          BEHALF AT TRIAL?

          3. WAS NOT THE FINDING OF CONTEMPT IMPROPER
          WHERE APPELLANT WAS DEPRIVED OF BASIC DUE
____________________________________________


5
 The trial court filed an opinion on November 3, 2014, regarding Appellant’s
appeal of his robbery conviction at 1967 EDA 2014.



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J-A30021-15


          PROCESS RIGHTS PRIOR TO THE CONTEMPT AT THE
          CONCLUSION OF HIS TRIAL ON THE UNDERLYING
          CHARGES WITHOUT AN EVIDENTIARY HEARING ON THE
          CONTEMPT CHARGE, AND IN THE ABSENCE OF ANY
          NECESSITY FOR AN IMMEDIATE FINDING OF CONTEMPT:
          THE “HEARING” PROCEDURE HELD AT SENTENCING
          OCCURRED AFTER THE COURT HAD ALREADY ENTERED
          ITS VERDICT, AND IN ANY EVENT, DID NOT INCLUDE THE
          PRESENTATION OF EVIDENCE OR OF WITNESSES, AND
          LACKED ANY OPPORTUNITY FOR APPELLANT TO TESTIFY
          ON HIS OWN BEHALF AS WELL AS ANY OF THE
          PROCEDURAL REQUIREMENTS OF A TRIAL?

Appellant’s Brief at 4.

       In his first issue, Appellant challenges the sufficiency of the evidence

for his contempt conviction.            He claims that he did not deliberately

misbehave or deliberately offend the court.6 He claims the evidence did not

establish actual obstruction of the administration of justice occurred as a

result of Appellant’s conduct, and that Appellant did not intend to obstruct

the administration of justice.           He argues that the interruption of the

proceedings was momentary, and not a significant disruption. He concludes

that, because he did not disrupt the administration of justice, his conduct

does not fall within the limited categories for which the court has the

authority to impose summary criminal contempt of court, and that his

sentence for contempt must be vacated. We agree.


____________________________________________


6
  Appellant further contends that the word “bullshit” is not an obscenity or
profanity; it is merely vulgar slang that “labels something that the speaker
does not like and feels he is unable to change.” Appellant’s Brief at 14.



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J-A30021-15


      We note initially that trial courts in Pennsylvania have an inherent

power to impose summary punishment for contempt of court. This power is

set forth in the Judicial Code, which provides:

         § 4132. Attachment and summary punishment for
         contempts

         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:

            (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. § 4132.

      Our standard of review is as follows:

         “When reviewing a contempt conviction, much reliance is
         given to the discretion of the trial judge. Accordingly, we
         are confined to a determination of whether the facts
         support the trial court’s decision.” Williams v. Williams,
         681 A.2d 181, 183 ([Pa.Super.]1996), aff'd, 721 A.2d
         1072 ([Pa.]1998). “‘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.’” Ricci v. Geary, 670 A.2d 190, 191
         ([Pa.Super.]1996) (quoting Commonwealth v. Jackson,
         532 A.2d 28, 31 ([Pa.Super.]1987)).

Commonwealth v. Pruitt, 764 A.2d 569, 573-74 (Pa.Super.2000).

      However,

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J-A30021-15



        “Whether sufficient evidence exists to support the verdict
        is a question of law; thus, [an appellate court’s] standard
        of review is de novo and [its] scope of review is plenary.”
        Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.2014)
        cert. denied sub nom. Patterson v. Pennsylvania, 135
        S. Ct. 1400 (2015). When examining a challenge to the
        sufficiency of evidence, we employ the following standard:

           The standard we apply in reviewing the sufficiency of
           the evidence is whether viewing all the evidence
           admitted at trial in the light most favorable to the
           verdict winner, there is sufficient evidence to enable
           the fact-finder to find every element of the crime
           beyond a reasonable doubt. In applying [the above]
           test, we may not weigh the evidence and substitute
           our judgment for the fact-finder. In addition, we note
           that the facts and circumstances established by the
           Commonwealth need not preclude every possibility
           of innocence. Any doubts regarding a defendant’s
           guilt may be resolved by the fact-finder unless the
           evidence is so weak and inconclusive that as a
           matter of law no probability of fact may be drawn
           from    the     combined      circumstances.       The
           Commonwealth may sustain its burden of proving
           every element of the crime beyond a reasonable
           doubt by means of wholly circumstantial evidence.
           Moreover, in applying the above test, the entire
           record must be evaluated and all evidence actually
           received must be considered. 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).




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J-A30021-15


     “To sustain a conviction [for summary criminal contempt] pursuant to

section 4132(3) ... it must be established beyond a reasonable doubt that

Appellant (1) committed misconduct, (2) in the presence of the court, (3)

with the intent to obstruct the proceedings, and (4) Appellant’s misconduct

actually obstructed the administration of justice.” Pruitt, 764 A.2d at 575

(citing Behr v. Behr, 695 A.2d 776, 779 (Pa.1997)).

     Summary contempt adjudication is appropriate only when the conduct

occurred in the judge’s presence:

        Where a court acts immediately to punish for
        contemptuous conduct committed under its eye, the
        contemnor is present, of course. There is then no question
        of identity, nor is hearing in a formal sense necessary
        because the judge has personally seen the offense and is
        acting on the basis of his own observations.

Commonwealth v. Moody, 46 A.3d 765, 772-73 (Pa.Super.2012) (citation

omitted).

        To obstruct justice, conduct must significantly disrupt
        proceedings. In re Campolongo [,435 A.2d 581
        (Pa.1981)]. We noted in Commonwealth v. Garrison,
        386 A.2d 971 ([Pa.]1978) (plurality opinion), that
        contempt requires actual, imminent prejudice to a fair
        proceeding or prejudice to the preservation of the court’s
        orderly procedure and authority. “Remarks that are
        injudicious, or even disrespectful, will not, without more,
        justify a summary conviction for contempt of court.”
        Campolongo, 435 A.2d at 584.

Williams v. Williams, 721 A.2d 1072, 1074 (Pa.1998).

     Here, Appellant complied with the court when it asked him to watch

his language during his testimony and to make the details of his sexual



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J-A30021-15


encounter less explicit. Appellant apologized for his language and stopped

using the “F” word after the court warned him.          Further, by uttering the

word “bullshit” upon hearing the verdict, Appellant likely intended to express

his displeasure as opposed to disrupt the proceedings.        Even if Appellant

intended to disrupt the proceedings with his word, he did not actually

obstruct the administration of justice.      See Pruitt, supra.    Because the

facts of record do not support the court’s determination, the court abused its

discretion in finding Appellant in contempt of court.

      Due to the disposition of Appellant’s first issue, we need not address

his other claims.

      Appellant’s conviction for summary criminal contempt reversed and

vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2015




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