J-S56037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASHEED SMITH                              :
                                               :
                       Appellant               :   No. 1821 EDA 2018

          Appeal from the Judgment of Sentence Entered May 24, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): MC-51-MD-0000124-2018


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 08, 2020

        Appellant Rasheed Smith appeals from the May 24, 2018 judgment of

sentence imposed following his conviction for contempt of court.1 Appellant

claims he had inadequate notice of the charges and challenges the sufficiency

of the evidence supporting his conviction. We affirm.

        The trial court summarized the relevant facts and procedural history as

follows.

        On December 10, 2010, Appellant was arrested and charged with
        possession with intent to deliver a controlled substance (PWID).
        He was released on bail on the same day.             After several
        continuances, Appellant’s trial commenced . . . on April 1, 2013.
        The secure docket entry for that date states that Appellant “came
        to court and left.” Before Appellant left, [the judge] advised that
        “should [Appellant] leave court, the court will issue a judge only
        bench warrant.” After Appellant absconded, [the judge] revoked


____________________________________________


1   42 Pa.C.S. § 4132(3)
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      his bail, issued a bench warrant, and proceeded to conduct a trial
      in absentia.

      On April 4, 2013, at the conclusion of Appellant’s trial in absentia,
      the jury returned a hung jury verdict and the [trial court] granted
      a mistrial. The Commonwealth advised it would retry Appellant,
      in absentia if necessary, and the [trial court] listed the matter for
      retrial. The dockets establish that retrial was scheduled and
      continued on numerous occasions between April 4, 2013 and May
      4, 2018. All the while, Appellant’s bench warrant remained open
      and he failed to appear at every hearing. The docket reflects that
      both the Commonwealth and defense counsel made numerous
      attempts to contact Appellant and bring him to his court hearings.

      On May 22, 2018, the Philadelphia Police finally arrested Appellant
      on his bench warrant. On May 24, 2018, [the trial court] held a
      hearing to determine (1) whether Appellant wished to enter a
      guilty plea or proceed to trial on his PWID charge, and (2) whether
      Appellant should be held in contempt for his absconsion and
      repeated failure to appear in Court despite his bench warrant.

Trial Ct. Op., 5/7/19 at 1-2 (record citations omitted and some formatting

altered).

      At the May 24, 2018 hearing, before Appellant entered the courtroom,

Appellant’s counsel stated that Appellant had been fully advised “on

everything” and confirmed that Appellant intended to enter a guilty plea on

the PWID charge. N.T., 5/24/18, at 3. Next, the trial court indicated that

there was “of course, a contempt matter that would have to be handled as

well.” Id. Appellant’s counsel did not object or indicate that he was unaware

of the contempt issue. Rather, counsel suggested that the trial court colloquy

Appellant “about the whole thing”.          Id.   Once Appellant entered the

courtroom, the trial court informed him that there was a contempt issue to be

addressed that day. Id. at 6. Appellant’s counsel did not object at that time.



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Appellant asserted that he had not seen the bench warrant.           Id. at 7.

However, Appellant’s counsel indicated that he had shown Appellant a copy of

the bench warrant prior to the hearing and again showed Appellant upon the

request of the trial court. Id. at 8.

      At the hearing, Appellant declined the Commonwealth’s plea offer,
      and [the trial court] found him in contempt. On the contempt
      conviction, [the trial court] sentenced Appellant to incarceration
      for five (5) months and twenty-nine (29) days.

      On June 6, 2018, Appellant filed a notice of appeal to the Superior
      Court, and on February 14, 2019, he filed a Statement of Errors
      Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). [The trial
      court filed a responsive opinion.]

Trial Ct. Op. at 2.

      Appellant raises two issues for our review:

      1. In finding [Appellant] in direct criminal contempt, did not the
         trial court violate [Appellant’s] due process rights under the
         federal and state constitutions inasmuch as [Appellant] was not
         furnished with adequate notice that he was facing contempt
         proceedings, and did not have adequate opportunity to prepare
         a defense?

      2. Was not the evidence insufficient to establish a finding of
         contempt beyond a reasonable doubt in violation of
         [Appellant’s] state and federal constitutional rights, where
         there was no evidence of misconduct that obstructed the
         administration of justice?

Appellant’s Brief at 3.

      In his first issue, Appellant argues that he did not have adequate notice

of the contempt hearing. Appellant contends that he was denied due process

of law because the trial court announced its intention to deal with the

contempt issue after the May 24, 2018 hearing concerning the negotiated


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guilty plea for PWID and the bench warrant was underway. Id. at 9. Appellant

insists that he did not have adequate notice that he was facing a contempt

charge when he was brought in for the bench warrant.            Id.   Appellant

concludes that his conviction is a violation of his constitutional right to due

process. Id. at 8.

      As a preliminary matter, we must determine if this issue is properly

before us. “Issues not raised before the lower court are waived and cannot

be raised for the first time on appeal.”        Pa.R.A.P. 302(a).     Instantly,

Appellant’s counsel did not raise an objection challenging the lack of notice of

the contempt charge at the May 24, 2018 hearing, nor did counsel request a

continuance. See N.T. at 10-11. Accordingly, we find that Appellant waived

this claim by failing to object.

      Even if Appellant’s claim was properly preserved, no relief is due.

Regarding due process in matters of criminal contempt, the Pennsylvania

Supreme Court held that

      [t]he Constitution certainly requires that [an] appellant be given
      fair notice of the charges against him and an opportunity to be
      heard. But no need exists to fit criminal contempt . . . into the
      mold of procedures created for more commonplace offenses. This
      [c]ourt has in the past recognized that due process is a flexible
      concept and not one wed to fixed formalities.

      Certainly the Constitution does not require any particular mode of
      informing an accused of the charges against him. . . .




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Commonwealth v. Mayberry, 327 A.2d 86, 91-92 (Pa. 1974) (citations

omitted). However, the Constitution requires that a contemnor be provided

with reasonable notice and an opportunity to be heard. Id. at 94.

      Instantly, Appellant had adequate notice of the contempt charges

against him. The secure docket indicates that the court advised Appellant that

it would issue a bench warrant if he left court on April 1, 2013. Appellant

elected to leave.   The court issued a bench warrant and the PWID trial

proceeded in absentia.    Following six years of continuances and contact

attempts by both the Commonwealth and Appellant’s counsel, the police

arrested Appellant for the bench warrant and brought him to court.

Appellant’s counsel showed Appellant the bench warrant before the hearing.

During the hearing, Appellant’s counsel presented an argument against a

finding of contempt.     See N.T. at 10-11.       Further, Appellant had the

opportunity to speak on his own behalf. See Id. at 14.

      We conclude that Appellant received adequate notice under the

circumstances of the contempt charge and the hearing that resulted from his

failure to return to court.   Accordingly, there was no violation of his due

process rights. See Mayberry, 327 A.2d at 92.

      In his second issue, Appellant argues that there was insufficient

evidence to convict him of criminal contempt. Id. at 13. Appellant asserts

that the Commonwealth did not present evidence that Appellant’s conduct

obstructed the administration of justice.   Id.   Appellant contends that his

departure from court and failure to return did not disrupt the proceedings. Id.

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Specifically, Appellant insists that his absence did not affect the court’s

authority because the court proceeded with the trial in absentia. Id. at 14.

Therefore, Appellant concludes that the evidence was insufficient to support

his conviction.

      This Court has held that

      [t]he 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 judgment for the fact-
      finder. . . . Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder 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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011)

(citation omitted).

      There are two types of contempt: direct and indirect. Commonwealth

v. Brown, 622 A.2d 946, 948 (Pa. Super. 1993). “To sustain a conviction for

direct criminal contempt [under Section 4132(3)], there must be proof beyond

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.” Commonwealth v. Moody, 125 A.3d 1, 5 n.4 (Pa.

2015) (citation omitted).

      “Contempt requires actual, imminent prejudice to a fair proceeding or

prejudice to the preservation of the court’s orderly procedure and authority.”


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Commonwealth v. Odom, 764 A.2d 53, 57 (Pa. Super. 2000) (citation and

internal quotation marks omitted).      Failure of a party to remain for the

duration of the proceedings is an act of direct criminal contempt.            See

Commonwealth v. Shaw, 421 A.2d 1081 (1980) (affirming contempt

conviction where the appellant failed to return to court for the afternoon

session).

      Instantly, Appellant’s departure constituted misconduct in the presence

of the court. See id. at 1085. Appellant acknowledged that “leaving court on

the day trial is scheduled can constitute direct criminal contempt.” Appellant’s

Brief at 14.   Appellant only challenges the fourth element under Section

4123(3), obstruction of the proceedings. See id. Appellant cites no authority

for his position that proceedings are not disrupted when a trial continues in

absentia. See id.

      Following Appellant’s departure in April 2013, the trial proceeded in

absentia, resulting in a hung jury. See Trial Ct. Op. at 1. Appellant’s absence

hindered attempts to retry the matter because Appellant could not be located.

See Docket No. 0019-2011. As a result, the matter was continued numerous

times over a six-year period until Appellant was apprehended. See id. The

delay caused by Appellant’s misconduct resulted in actual prejudice to his trial,

as well as the court’s orderly procedure.          See Odom, 764 A.2d at 57.

Therefore, Appellant’s actions     significantly    disrupted   the   proceedings,

satisfying the fourth element of contempt. See id.

      Judgment affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/20




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