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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JAIME NATER,                            :          No. 790 EDA 2013
                                        :
                       Appellant        :


        Appeal from the Judgment of Sentence, February 15, 2013,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. MC-51-MD-0000628-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 10, 2015

     Jaime Nater appeals from the judgment of sentence imposed on

February 15, 2013, after he was held in contempt by the Honorable Karen Y.

Simmons of the Philadelphia Municipal Court. We vacate.

     The relevant facts and procedural history are as follows. On July 29,

2011, appellant was found guilty of possessing a small amount of marijuana,

35 P.S. § 780-113(a)(31).     Judge Simmons deferred sentencing with the

understanding that appellant would receive no further penalty contingent

upon his completion of 50 hours of community service. On December 17,

2012, appellant appeared for court, and Judge Simmons learned that he had

only completed 30 hours of community service. Appellant was instructed to

complete the remaining 20 hours by January 9, 2013, and was informed that




* Former Justice specially assigned to the Superior Court.
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if he did not do so, he would be found in contempt. (Notes of testimony,

2/15/13 at 4-7.)

      On January 9, 2013, the proceedings were continued because

Judge Simmons was attending a funeral.       On February 15, 2013, the next

listing, appellant informed the court that he had not completed any

additional community service. (Id. at 8.) Defense counsel stated that he

had   no   objection   to   sentencing   appellant   to   a   30-day   sentence.

Judge Simmons imposed a 15 to 30-day sentence for possessing marijuana

and then proceeded to conduct a contempt hearing.               (Id. at 8-10.)

Appellant was found in contempt and was sentenced to 2½ to 5 months’

incarceration, to be served concurrently with his sentence for possessing

marijuana. (Id. at 14.)

      On February 25, 2013, appellant filed a “motion to reconsider and

vacate contempt order and sentence:        motion to reconsider sentence on

possession of marijuana.” (Docket #2.) Judge Simmons denied the petition

the same day.      Appellant’s notice of appeal was filed on March 7, 2013.

Herein, appellant presents the following issues for our review:

            1.     Was not the evidence insufficient to convict
                   appellant of criminal contempt, insofar as
                   appellant’s “contemptuous” behavior of not
                   completing community service hours does not
                   satisfy the criteria for a finding of contempt
                   under any section of 42 Pa.C.S. § 4137(a), and
                   the sentence rendered was illegal under that
                   statute?




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            2.     Did not appellant’s contempt conviction and
                   sentence violate both the Pennsylvania and
                   Federal Double Jeopardy Clauses, where
                   appellant was convicted and sentenced for
                   criminal contempt because he failed to
                   complete community service as part of a
                   deferred sentencing condition on a charge of
                   possession of marijuana, but appellant had
                   already been sentenced to the maximum
                   allowable penalty because of this very same
                   behavior on that same possession charge?

Appellant’s brief at 4.

      In his first argument, appellant asserts the municipal court did not

specify under which subsection of the contempt statute she was holding

appellant in contempt. Appellant points out the criminal docket shows that

he was charged and convicted under 42 Pa.C.S.A. § 4137(a)(2), “[f]ailure of

a person to obey lawful process in the nature of a subpoena issued by a

magisterial district judge.”   Appellant goes on to argue that the municipal

court erred as a matter of law in convicting him of contempt as his behavior

did not fit within any criteria required for a finding of contempt under any

subsection of the contempt statute and he was not in violation of any court

order.   Finally, appellant contends, assuming arguendo the charge and

conviction were properly filed, his sentence was illegal. (Appellant’s brief at

9-10.)

      Preliminarily, we must determine if this appeal is proper.      We may

raise issues regarding jurisdiction sua sponte.          Commonwealth v.

Gentry, 101 A.3d 813, 816 (Pa.Super. 2014). As appellant points out, the



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docket indicates that the municipal court erroneously issued contempt

sanctions pursuant to Section 4137(a)(2), a provision relating to the

contempt powers of magisterial courts. (See docket #1.) In relevant part,

Section 4137 declares:

           § 4137.      Contempt       powers    of   magisterial
           district judges

           (a)   General rule.--A magisterial district judge
                 shall have the power to issue attachments and
                 impose summary punishments for criminal
                 contempts of a magisterial district judge court
                 in the following cases:

                 (1)     Misbehavior of any person in the
                         presence of the court, thereby
                         obstructing the administration of
                         justice.

                 (2)     Failure of a person to obey lawful
                         process in the nature of a
                         subpoena issued by a magisterial
                         district judge.

                 (3)     Failure to comply with an order of
                         a    magisterial   district   judge
                         directing a defendant in a criminal
                         proceeding to compensate the
                         victim of the criminal conduct for
                         the damage or injury sustained by
                         the victim.

                 (4)     Failure to comply with an order of
                         a    magisterial   district   judge
                         directing a defendant in a criminal
                         proceeding to pay fines and costs
                         in accordance with an installment
                         payment order.

                 (5)     Violation of an order issued
                         pursuant to 23 Pa.C.S.A. § 6110


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                        (relating to emergency relief by
                        minor judiciary).

           ....

           (c)    Punishment.--Punishment         for   contempt
                  specified in subsection (a)(1) or (3) may be a
                  fine of not more than $100 or imprisonment
                  for not more than 30 days, or both.
                  Punishment     for    contempt    specified   in
                  subsection (a)(2) shall be a fine of not more
                  than $100. Failure to pay within a reasonable
                  time could result in imprisonment for not more
                  than ten days.       Punishment for contempt
                  specified in subsection (a)(5) shall be in
                  accordance with that specified in 23 Pa.C.S.A.
                  § 6144(b) (relating to contempt for violation of
                  order or agreement).           Punishment for
                  contempt in subsection (a)(4) would be
                  imprisonment for not more than 90 days.

           (d)    Procedure.--A magisterial district judge shall
                  have the power to issue an attachment by
                  means of a warrant and to conduct a hearing
                  prior to the imposition of punishment for
                  contempt.      Any punishment imposed by a
                  magisterial district judge for contempt shall be
                  automatically stayed for a period of ten days
                  from the date of imposition of the punishment
                  during which time an appeal of the action of
                  the magisterial district judge may be filed with
                  the court of common pleas of the judicial
                  district.    The stay shall remain in effect
                  pending the disposition of an appeal. Upon
                  the filing of the appeal, the court of
                  common pleas shall hear the matter
                  de novo. On appeal, the accused shall have
                  the right to be notified of the accusation and
                  shall have a reasonable time to make a
                  defense. The defendant shall not have a right
                  to a jury trial on appeal. . . .

42 Pa.C.S.A. § 4137 (emphasis added).



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      Clearly, the above statute does not contemplate an appeal to this

court directly, and the municipal court’s citing of Section 4137 was in error.

Nevertheless,   we   have    jurisdiction   to   entertain      this   appeal   as   the

Philadelphia Municipal Court shares concurrent jurisdiction with the Court of

Common Pleas of Philadelphia County pursuant to 42 Pa.C.S.A. § 1123. A

defendant is permitted to appeal a municipal court judge’s contempt order

directly to this court as a matter of right.       See 42 Pa.C.S.A. § 1123(a.1)

(“Appeal from contempt citation or nuisance order.                     There shall be a

right to appeal to the Superior Court of a contempt citation issued by a

municipal court judge, but the appeal shall be limited to a review of the

record.”).   Accordingly, we have appellate jurisdiction over the municipal

court’s   contempt   order   even   though       that   court    mistakenly     invoked

Section 4137 as the basis of its sanction. We note that in its Rule 1925(a)

opinion, the court properly refers to its power to impose a summary

punishment for contempt as set forth in 42 Pa.C.S.A. § 4132.1 (Trial court

opinion, 11/20/15 at 2-3.)



1
  “Direct contempt is obstruction by conduct, word or deed in the presence
of the court and is a summary offense.” Commonwealth v. Brown, 622
A.2d 946, 948 (Pa.Super. 1993). “A charge of indirect criminal contempt
consists of a claim that a violation of an order or decree of court occurred
outside the presence of the court.” Commonwealth v. Haigh, 874
A.2d 1174, 1176 (Pa.Super. 2005), appeal denied, 887 A.2d 1245 (Pa.
2005) (emphasis is original). Here, the court did not announce whether it
had found appellant in direct or indirect criminal contempt. We believe, as
does the Commonwealth and appellant, that the court was imposing
punishment for indirect criminal contempt.


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      Appellant’s first argument challenges the sufficiency of the evidence to

support his conviction for criminal contempt. In conducting a sufficiency of

the evidence review, we view all of the evidence admitted, even improperly

admitted evidence.      Commonwealth v. Watley, 81 A.3d 108, 113

(Pa.Super. 2013) (en banc).      We consider such evidence in a light most

favorable to the Commonwealth as the verdict winner, drawing all

reasonable inferences from the evidence in favor of the Commonwealth. Id.

When evidence exists to allow the fact-finder to determine beyond a

reasonable doubt each element of the crimes charged, the sufficiency claim

will fail. Id.

      Here, the municipal court found appellant guilty of contempt of court.

The power to impose summary punishment for contempt is inherent in all

courts, but is limited in this Commonwealth by 42 Pa.C.S.A. § 4132.

Pursuant to Section 4132, the court has the power to issue attachments and

to inflict summary punishments for contempt in the following circumstances:

             §   4132.       Attachment         and     summary
             punishments 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.


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

42 Pa.C.S.A. § 4132.

      If a court finds a person in contempt under Section 4132, it is

considered criminal rather than civil contempt. Stewart v. Foxworth, 65

A.3d 468, 472 (Pa.Super. 2013). Instantly, it appears the municipal court

found appellant to have violated Section 4132(2), which permits punishment

for “[d]isobedience or neglect by officers, parties, jurors or witnesses of or

to the lawful process of the court.” Contempt under Section 4132(2) can be

sustained only if the following four elements are present:

            (1)   The court’s order or decree must       be
                  definite, clear, specific and leave    no
                  doubt or uncertainty in the mind of   the
                  person to whom it was addressed of    the
                  conduct prohibited;

            (2)   The contemnor must have had notice of
                  the specific order or decree;

            (3)   The act constituting the violation must
                  have been volitional; and

            (4)   The contemnor must have acted with
                  wrongful intent.

            Further, unless the evidence establishes an
            intentional disobedience or an intentional neglect of
            the lawful process of the court, no contempt has
            been proven. Moreover, a conviction for criminal
            contempt requires proof beyond a reasonable doubt.




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Commonwealth v. Kolansky, 800 A.2d 937, 939-940 (Pa.Super. 2002)

(quotation, quotation marks, and citations omitted).

      Our review of the notes of testimony indicates appellant was

sentenced for both his original possessory narcotics offense and for his

failure to complete the court-ordered community service.         The municipal

court found appellant’s failure to complete the community service was

contemptuous     conduct.   We   are   constrained     to   disagree   with   that

determination.

      As reflected by the record, on July 29, 2011, Judge Simmons found

appellant guilty of possession of a small amount of marijuana and sentenced

him to no further penalty, pending completion of 50 hours of community

service.   When the municipal court ordered community service, it was a

conditional order. Clearly, if appellant completed the community service, he

would not be sentenced to any further penalty. If he did not complete the

community service, then the court would be free to sentence him to the

penalty prescribed by statute for possession of a small amount of marijuana.

On February 15, 2013, the municipal court, fully aware that appellant did not

complete the 50 hours of community service, sentenced appellant to 15 to

30 days on the possession charge.      The court then proceeded to hold a

contempt hearing for appellant’s failure to complete the 50 hours of

community service. We believe this was in error.




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     There was no order given by the municipal court at any time

prohibiting appellant from engaging in any conduct. The order to complete

community service was a conditional order related to the sentence the court

would ultimately provide on the possession of a small amount of marijuana

charge. Appellant failed to complete the community service which resulted

in him being sentenced to 15 to 30 days’ incarceration. The municipal court

had no authority to separately sentence appellant for his failure to complete

the community service. As a result, the sentence appellant received of 2½

to 5 months’ incarceration for contempt is vacated. Consequently, we have

no need to address appellant’s remaining arguments.

     Judgment of sentence vacated; jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/10/2015




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