J-S41036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MICHAEL GREEN                              :
                                               :
                       Appellant               :      No. 3716 EDA 2016

             Appeal from the Judgment of Sentence March 21, 2016
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-MD-0000146-2016


BEFORE:      GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                           FILED AUGUST 30, 2018

        Appellant, Michael Green, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

summary conviction for contempt of court.1            We affirm the judgment of

sentence as amended.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises two issues for our review:

           WAS NOT THE EVIDENCE INSUFFICIENT AS A MATTER OF
           LAW TO PROVE THE CHARGE OF DIRECT CRIMINAL
           CONTEMPT UNDER 42 PA.C.S.A. § 4132(3) BEYOND A
           REASONABLE DOUBT BECAUSE THE EVIDENCE FAILED TO
           PROVE: (1) THAT…APPELLANT ENGAGED IN “MISCONDUCT”
____________________________________________


1   42 Pa.C.S.A. § 4132(3).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S41036-18


         AS THERE WAS NOTHING INAPPROPRIATE ABOUT
         APPELLANT’S REQUEST OF HIS ATTORNEY; (2) THAT
         APPELLANT MADE THE REQUEST OF HIS ATTORNEY WITH
         THE INTENT TO OBSTRUCT ANY PROCEEDINGS BECAUSE
         THERE WAS NO EVIDENCE THAT APPELLANT INTENDED THE
         COURT TO HEAR THE REMARKS NOR DID THE REQUEST
         ASSERT ANY HARASSING OR ILLEGAL BASIS; AND (3) THAT
         THE REQUEST TO HIS ATTORNEY DID NOT OBSTRUCT THE
         ADMINISTRATION OF JUSTICE BECAUSE NO PROCEEDING
         OR PROCESS WAS SIGNIFICANTLY DIMINISHED OR
         DISRUPTED?

         DID NOT THE TRIAL COURT IMPOSE AN ILLEGAL SENTENCE
         BECAUSE THE MINIMUM SENTENCE OF 5 MONTHS AND 29
         DAYS EXCEEDED “ONE-HALF OF THE MAXIMUM SENTENCE
         IMPOSED,” WHICH WAS ALSO 5 MONTHS AND 29 DAYS,
         WHICH IS PROHIBITED UNDER 42 PA.C.S.A. § 9756(B) OF
         PENNSYLVANIA’S SENTENCING CODE AND NO EXCEPTIONS
         TO SUCH A REQUIREMENT WERE MET IN THIS CASE?

(Appellant’s Brief at 3.)

      The following principles apply to challenges to the sufficiency of the

evidence:

         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

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J-S41036-18


         [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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).

      A court’s power to impose a summary punishment for contempt is set

forth in Section 4132 as follows:

         § 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:

                                    *    *    *

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

42 Pa.C.S.A. § 4132(3).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Carolyn H.

Nichols, we conclude Appellant’s first issue merits no relief. The trial court

opinion comprehensively discusses and properly disposes of Appellant’s

sufficiency claim. (See Trial Court Opinion, filed December 22, 2017, at 3-5,

unpaginated) (finding: Appellant made unsolicited argument during hearing

while several other cases were in courtroom ready for call of list; after court

advised Appellant court had already made its ruling, Appellant interrupted

court twice; after court explained that it would hold Appellant in contempt if



                                        -3-
J-S41036-18


he continued, he said something inaudible to counsel; when court asked

Appellant to repeat what he had said, Appellant told court he had asked

counsel to file recusal motion, because “[trial judge is] bias and totally out of

control”;   Appellant’s   conduct   was     not   result   of   inexperience   or

misunderstanding; Appellant had previously appeared in court and should

have been aware of effect his comments would have on courtroom

proceedings; Appellant had requisite intent to obstruct justice). The record

supports the trial court’s rationale, and we see no reason to disturb it. See

Jones, supra. Therefore, as to Appellant’s first issue, we affirm on the basis

of the trial court opinion.

      In his second issue, Appellant argues his sentence is illegal because it

does not include a minimum term of imprisonment. Appellant concludes this

Court should revise his sentence. We agree.

      Criminal contempt is a crime punishable by imprisonment or fine;

sentences of imprisonment for contempt must be imposed according to the

Sentencing Code.      Commonwealth v. Falkenhan, 452 A.2d 750, 758

(Pa.Super. 1982), cert. denied, 464 U.S. 803, 104 S.Ct. 49, 78 L.Ed.2d 69

(1983). “The Code mandates that the sentencing court impose not only a

maximum sentence, but also a minimum sentence which shall not exceed one-

half the maximum[.]       42 Pa.C.S.A. § 9756(b).    A flat…sentence does not

satisfy this requirement.” Commonwealth v. Williams, 753 A.2d 856, 865

(Pa.Super. 2000), appeal denied, 567 Pa. 713, 785 A.2d 89 (2000). “While


                                      -4-
J-S41036-18


the standard remedy for a trial court’s omission of a minimum sentence is to

vacate the judgment and remand for resentencing…where the sentencing

court clearly intended to impose the maximum sentence this Court can amend

the sentence to include a minimum term equal to one-half of the maximum.”

Commonwealth v. Duda, 831 A.2d 728, 733 (Pa.Super. 2003) (internal

citation omitted).

      The General Assembly has not specified the maximum permissible term

of imprisonment for a contempt conviction imposed pursuant to Section 4132.

Falkenhan, supra at 758.       Pennsylvania courts, however, have held the

maximum sentence for a summary criminal contempt conviction may not

exceed six months.     Williams, supra at 865-66 (providing defendant is

entitled to jury trial if sentence for criminal contempt under Section 4132(3),

summary offense, exceeds six months).         See also Commonwealth v.

McMullen, 599 Pa. 435, 443-44 (2008) (discussing, generally, maximum

imprisonment term for summary criminal contempt convictions; explaining

right to jury trial under Sixth Amendment to United States Constitution and

Article I, §§ 6, 9 of Pennsylvania Constitution applies when defendant faces

imprisonment sentence exceeding six months).

      Instantly, the court sentenced Appellant to a flat term of five (5) months

twenty-nine (29) days’ incarceration.      Appellant’s sentence included no

minimum term of incarceration and is illegal. See Williams, supra. In its

opinion, the trial court acknowledged Appellant’s sentence is illegal and


                                     -5-
J-S41036-18


explained the court had intended to impose upon Appellant the maximum

permissible sentence, which it interpreted to be five (5) months twenty-nine

(29) days’ incarceration.   (See Trial Court Opinion at 6, unpaginated).

Therefore, we amend Appellant’s sentence for his criminal contempt conviction

to a term of two (2) months fourteen and one-half (14½) days to five (5)

months twenty-nine (29) days’ incarceration. See Duda, supra; Williams,

supra. Accordingly, we affirm the judgment of sentence as amended.

     Judgment of sentence affirmed as amended.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/18




                                    -6-
                                                                                            Circulated 08/17/2018 02:12 PM
                                                                                                            FILED
                                                                                                        OEC 2 22.017
                        IN THE COURT OF COMMON PLEAS
                             PHILADELPHIA COUNTY                                                   Office o1 Judicial Rpr�,�n1s
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                                          Appeals/Post lna,
                            CRIMINAL TRIAL DIVISION



COMMONWEALTH OF PENNSYLVANIA                                              MC-51-MD-0000146-2016

                      vs.
                                                                          3716 EDA 2016      /
MICHAEL GREEN

                                          OPINION
                                            ...   -   ·:- ------- -
                                       MC-51-MD-0000146-2016 Comm.   v.
                                                                          .    ---,
                                                                          Greon, Michael
                                                          Op1n1on
NICHOLS, CAROLYN H., J.                                                                    December 22, 2017

                                           IIIIIIHll / 111111111!1
                                     � -- -- . �--------;
PROCEDURAL HISTORY                             8046657381

       On July 8, 2013, Defendant was arrested and charged with numerous felony offenses. On

�&ch 21, 2016, during a motions hearing before the Honorable Carolyn H. Nichols, this court

found Defendant guilty of a single count of direct criminal contempt. On April 5, 2016,

Defendant filed a timely Notice of Appeal. On January 13, 2017, this court issued an order

pursuant to Pa.R.A.P. 1925(b) for counsel to file a Statement of Errors within 21 days. Defendant

filed a l 925(b) statement on January 24, 2017.


FINDINGS OF FACT
       During.the motions hearing on March 21, 2016, the court denied the Defendant's motion

to dismiss pursuant to Rule 600(a). After the ruling, defense counsel asked the court to hear from

Defendant. After Defendant made further argument regarding the Rule 600(a) motion, the court

told him that the ruling on his motion had already been rendered. However, Defendant continued
to interject and interrupt.the court. The court told Defendant to stop speaking, or he would be

held in contempt. However, Defendant failed to follow the court's instructions.


               THE COURT: What did you say? What did you just say?

               THE DEFENDANT: I told him to put a motion in to recuse you from my case
               because you are bias and you are totally out of control.

               THE COURT: Tum him back around. Bring him back in here. Because of your
               smart, ignorant mouth and disrespect to the Court, I find you in contempt.

               THE DEFENDANT: Yeah, sure.

               THE COURT: I find him in contempt.

               THE DEFENDANT: Yeah, sure.

               THE COURT: Add another five months, 29 days.

               MR. KRANTZ: Your Honor, I would ask you to reconsider. All he did --

               THE COURT: l'm not reconsidering.

               MR. KRANTZ: All he did was, he asked me to file a motion for him.

               THE COURT: That's not all he just did. He is disrespectful to this Court, and he is
               in contempt. I am not reconsidering. All right. Put the contempt order in.

               N.T. 3/21/16 at 17�18.



MATTERS COMPLAINED Of ON APPEAL

    l . Was the evidence insufficient as a matter of law to prove the charge of direct criminal
        contempt under 42 Pa.C. S. 4132 beyond a reasonable doubt because the evidence failed
        to prove (I) that the appellant engaged in "misconduct" as there was nothing
        inappropriate about appellant's request of his attorney; (2) that the conduct occurred in
        the presence of the court because it was made to his attorney as he was being escorted
        from the courtroom; (3) that appellant made the request of his attorney with the intent to
        obstruct any proceedings because there was no evidence that appellant intended the court
        to hear the remarks nor did the request assert any harassing or illegal basis; and (4) that
       the request to his attorney did obstruct the administration of justice because no
       proceeding or process was significantly diminished or disrupted?

    2. Did the trial court impose an illegal sentence because the minimum sentence of 5 months
       and 29 days exceeded one-half of the maximum sentence imposed which was also 5
       months and 29 days, which is prohibited under Pennsylvania's Sentencing Code 42
       Pa.C.S. 9756(b) and no exceptions to such a requirement were met in this case?


DISCUSSION


  I.   EACH OF THE ELEMENTS OF DIRECT CRIMINAL CONTEMPT WERE
       ESTABLISHED BEYOND A REASONABLE DOUBT.

       Section 4132 of the Judiciary Code provides, in relevant part: 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: The misbehavior of any person in

the presence of the court, thereby obstructing the administration of justice. 42 Pa.C.S.A.

§ 41"32(3).

       The Superior Court has held that "when considering an appeal from a contempt order, we

place great reliance on the discretion of the trial judge." Commonwealth v. Jackson, 532 A.2d 28,

3 t (Pa. Super. 1987) (citation omitted). Additionally, "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." Id. Finally, "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. Id. To sustain a conviction for direct criminal contempt under

this provision there must be proof beyond a reasonable doubt: (I) 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. Williams, 753 A.2d 856, 861 (Pa. Super. 2000).

       In his appeal, Defendant claims that "there was nothing inappropriate about appellant's

request of his attorney." However, this is a mischaracterization of the conduct that led to

Defendant's contempt charge. Prior to his "request," Defendant made unsolicited argument to the

court concerning the denial of his Rule 600(a) motion. Then, after the court advised Defendant

that the ruling had already been issued, Defendant continued to interruptthe court twice more.

This exchange occurred while several other cases were ready in the room for call of the list.

Finally, after the court explained that Defendant would be held in contempt if he continued to

speak, Defendant spoke again. When the court asked him to repeat what he had said, Defendant

did not simply state that he was asking his attorney to file a motion; instead, he took that

opportunity to further disrespect the court by stating "you are bias [sic] and totally out of

control."

        Defendant also argues that the conduct in question did not occur in the presence of the

court because it was made to his attorney as he was being escorted from the courtroom. This

argument is patently unreasonable, as Defendant was still in the courtroom when he made the

remark. Additionally, the court observed Defendant's conduct (speaking after he had been

instructed not to do so), which clearly indicates that it occurred while he was in the presence of

the court.

        Next, Defendant argues that there was no showing of his intent to obstruct justice. In

order to establish the requisite intent to obstruct justice, the Superior Court has considered "the

individual's prior experience with the court system and the basic elemental deductive reasoning
every human being is deemed to possess." Williams, 753 A.2d at 862. More specifically, whether

Defendant "would be aware of the seriousness of the court proceedings, the proper decorum to

be observed during such proceedings and the proper respect to be accorded the trial judge."

Commonwealth v. Mutzabaugh, 699 A.2d 1289, 1292 (Pa. Super. 1997). In the present case,

Defendant made several appearances in court prior to the motions hearing in which he was found

in contempt. Additionally, he was explicitly instructed to stop speaking more than once, then told

if he continued to speak, he would be found in contempt. There is nothing in the record to

indicate that Defendant's conduct was the result of inexperience or innocent misunderstanding.

Instead, it is quite clear that Defendant possessed the requisite intent to obstruct justice simply by

virtue of the fact that he should have been aware of the effect that his comment would have on

courtroom proceedings.

        Finally, Defendant argues that there was no actual obstruction of justice, as Defendant's

conduct did not significantly disrupt judicial proceedings. "[C]ontempt requires actual, imminent

prejudice to a fair proceeding or prejudice to the preservation of the court's orderly procedure

and authority." Williams, 721 A.2d at 1074. In the present case, the court told defense counsel to

stop interrupting twice during the motions hearing. N.T. 3/21/16 at 10, 14. Therefore, when

Defendant's outburst began, the court remarked, "[t]hat's what happens when lawyers !nterrupt

the Judge, then everybody thinks they can »-" just before the court was, once again, interrupted

by Defendant. Id. at 17. Given the fact that this took place in a full courtroom with many

defendants, attorneys and other personnel present in the room, it is clear that the court had no

choice but to take action against Defendant, who openly disobeyed the court and showed blatant

disrespect for judicial authority.
 II.   THE COURT INTENDED TO IMPOSE A PROPER SENTENCE FOR THE
       CONTEMPT VIOLATION.

       The Superior Court has found that "[i]n cases where the sentencing court clearly intended

to impose the maximum sentence, [the court] may amend the sentence by including a minimum

term equal to one-half the maximum." Commonwealth v. Britton, 482 A.2d 1294, 1304 (1984),

appeal dismissed, 509 Pa. 620, 506 A.2d 895 (1986). In the present case, the court intended to

impose a spread sentence for the Contempt violation, rather than a flat sentence that would be

patently illegal. As is common practice during summary contempt sentences, courts in this

jurisdiction impose the maximum sentence permissible. This is achieved by sentencing the

defendant to a term a legal spread sentence, but placing the condition of no parole until the

maximum sentence is served. Due to a clerical error, the court's sentence was not recorded

properly to show that it did include a minimum and maximum sentence. Therefore, while the

intention of the court was to impose a legal sentence for direct criminal contempt, the sentencing

order was not reflective of that.
CONCLUSION

       For the aforementioned reasons, the defendant's claims on appeal should be denied and

the judgment of this court affirmed.
