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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                  :
                                            :
JAMES WILLIAMS,                             :             No. 6 EDA 2013
                                            :
                             Appellant      :


        Appeal from the Judgment of Sentence, December 11, 2012,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. MC-51-MD-0003529-2012


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED DECEMBER 11, 2014

      James Williams, appellant, appeals from the judgment of sentence

entered on December 11, 2012, following his conviction for indirect criminal

contempt, 42 Pa.C.S.A. § 4132(2). We are constrained to vacate appellant’s

conviction, as the evidence was insufficient to support the conviction under

this subsection.

      On December 6, 2012, a preliminary hearing was being held in the

matter of Commonwealth v. Stegall,1 MC-51-CR-0029232-2012, before

the Honorable Dawn Segal of the Philadelphia Municipal Court.             Appellant

was   seated       in    the    gallery   and   present    during   the    hearing.


1
  The parties, the trial court, and the notes of testimony from the
December 11, 2012 hearing all spell this defendant’s name differently; we
use the spelling provided in the notes of testimony from Stegall’s hearing on
December 6, 2012, which is included in the certified record.
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Officer George Fox (“Officer Fox”) was on the witness stand testifying about

Stegall’s attempts to run him into a pole and kill him; the officer had been

seriously injured. Officer Fox observed appellant lift a cell phone, raise it to

eye level, and point it at the officer.    Officer Fox yelled, “he’s videotaping

me.”    (Notes of testimony, 12/11/12 at 22.)           The proceedings were

disrupted and testimony was halted; and after several demands, appellant

was removed from the courtroom, and his cell phone was confiscated.

       A contempt hearing commenced on December 10, 2012; however,

appellant arrived over an hour late and was without representation.         The

court appointed counsel to represent him and continued the hearing to the

following day. At the December 11, 2012 hearing, Officer Fox testified along

with Officers Dennard Sherard and Joseph Birke.

       Officer Fox recounted the incident and described his observations.

Officer Fox explained that Stegall had tried to kill him and Williams’ actions

caused him concern; he feared for his safety and the safety of his family.

(Id. at 23.) He also testified to his concerns that the juvenile witness in the

Stegall case could also be a victim of intimidation if such an attempt was

made to intimidate a police officer.      (Id. at 23-24.)   Officers Sherard and

Birke testified that they observed the incident and appellant ignored the

request to hand over the phone.            (Id. at 33, 36-37; 49-50.)       The

Commonwealth introduced the cell phone into evidence and rested;




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however, the prosecutor announced he was not going to get a search

warrant to obtain the contents of the phone. (Id. at 52.)

        Judge Segal found appellant guilty of indirect criminal contempt under

42 Pa.C.S.A. § 4132(2). (Docket #1.) Appellant was sentence to 30 days to

5 months, 29 days.      A timely notice of appeal was filed on December 27,

2012.     Appellant complied with the trial court’s order to file a concise

statement of errors complained of on appeal within 21 days pursuant to

Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court filed an opinion on

February 8, 2013. Subsequently, a panel of this court granted appellant’s

request to remand to file an amended statement of errors. Counsel timely

complied and the trial court has filed a supplemental opinion on October 28,

2013.

        The sole issue presented is whether the evidence was insufficient to

support a conviction of indirect criminal contempt under 42 Pa.C.S.A.

§ 4132(2). Our standard of review of a contempt order is as follows:

             A trial court’s finding of contempt will not be
             disturbed    absent   an    abuse     of    discretion.
             Commonwealth v. Baker, 564 Pa. 192, 198, 766
             A.2d 328, 331 (2001). An appellate court cannot
             find an abuse of discretion merely for an error of
             judgment unless, in reaching a conclusion, the trial
             court overrides or misapplies the law or its judgment
             is manifestly unreasonable. Id.

Commonwealth v. Ashton, 824 A.2d 1198, 1202 (Pa.Super. 2003).

        Contempt is either civil or criminal in nature.    Commonwealth v.

Moody, 46 A.3d 765, 771 (Pa.Super. 2012).


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            If the dominant purpose of the court is to
            prospectively coerce the contemnor into compliance
            with the court’s directive, the adjudication is one of
            civil contempt. However, if the court’s dominant
            purpose is to punish the contemnor for disobedience
            . . . , the adjudication is one of criminal contempt.

Id. at 771-772 (citations omitted).         Criminal contempts are further

subdivided into direct and indirect contempts.        Id. at 772.      Different

procedural safeguards apply to direct and indirect criminal contempts.        “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. Brumbaugh, 932 A.2d 108, 109 (Pa.Super. 2007).

Direct contempt, however, involves conduct occurring in the presence of a

court. Commonwealth v. Patterson, 308 A.2d 90, 92 (Pa. 1973). Direct

criminal contempt often requires immediate adjudication in the form of a

summary hearing.     A direct criminal contempt involves misconduct in the

presence of the court, or so near to interfere with its immediate business.

Moody, supra at 772.

      At the outset, we note that in its opinions, the trial court states that

appellant was convicted of indirect criminal contempt. (Trial court opinion,

10/28/13 at 2-3; trial court opinion, 2/8/13 at 2.) The court explains that

“the offending conduct occurred in the presence of the court but the extent

of the conduct was not immediately apparent to the court.”           (Trial court

opinion, 2/8/13 at 11 n.8.) We disagree; the conduct at issue is more akin

to direct criminal contempt as there is no dispute it occurred in the


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courtroom and was alleged to have disrupted the proceedings.      The case

relied upon by the trial court actually supports our finding.          See

Commonwealth v. Falana, 696 A.2d 126, 129 (Pa. 1997) (“when an

individual makes a remark in the courtroom while the judge is physically

present, he cannot avoid a conviction for contempt simply because the judge

did not hear him speak the words in question”).

     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 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.A. § 4132.

     Instantly, the trial court relied upon Section 4132(2) to determine

appellant was in contempt. Appellant argues that this subsection does not


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apply to him as he is not an officer, party, juror, or witness of or to the

lawful process of the court. We agree; it is clear that the trial court erred in

proceeding under Subsection (2) of the statute due to its inapplicability to

appellant.   None of the elements necessary under the judicial code were

established. See Commonwealth v. Pruitt, 764 A.2d 569, 575 (Pa.Super.

2000).

      The Commonwealth’s brief suggests that the trial court’s decision to

find appellant guilty of Section 4132(2) was a mistake.      (Commonwealth’s

brief at 5-6, 16.)    The Commonwealth argues that the testimony was

sufficient to establish the elements of contempt set forth in Subsection (3).

We remind the Commonwealth that this court is not a fact-finding court and

we may not revisit the notes of testimony to reshape the verdict. The only

available remedy at this stage of the proceedings is to discharge appellant.

In Commonwealth v. Wagner, 406 A.2d 1026, 1031 (Pa. 1979), the

Pennsylvania Supreme Court specifically rejected the notion that an

appellate court may refashion the conviction of a jury into one based on a

lesser-included offense. That precedent applies equally here.

      The Commonwealth also posits that the trial court’s finding of guilt

under Subsection (2) “was mere surplusage, having no effect on the

sufficiency of the evidence.”     (Commonwealth’s brief at 17.)       Such an

argument is disingenuous.        The Judicial Code narrowly restricts the

situations in which a court may inflict summary punishment for contempt.



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42 Pa.C.S.A. § 4132; McMillan v. Mt. Laurel Racing, Inc., 356 A.2d 742

(Pa. 1976). “Each of these subsections is designed to reach a particular type

of conduct.” Commonwealth v. Garrison, 386 A.2d 971, 977 (Pa. 1978).

     Subsection (1) permits the court to compel its officers to perform their

ministerial duties and to punish misconduct in the performance of any of the

day-to-day functions necessary to the administration of justice.         For

example, sheriffs must serve process, court reporters must record and

transcribe testimony, and prothonotaries must receive, date, and file

documents. Matter of Johnson, 359 A.2d 739, 741 (Pa. 1976).

     Under Subsection (2), there must be a formal order directed to a

specific person or group of persons, but the refusal to comply need not occur

in the presence of the court. This subsection permits the court to compel

compliance with formal court orders, and it means the parties must obey

decrees and orders, witnesses must appear when subpoenaed, and jurors

must present themselves when called.

           To support a finding of contempt under the second
           paragraph set forth in the Judicial Code, the
           following four elements must be established:

           (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;




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

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

           Commonwealth v. Zacher, 455 Pa.Super. 594,
           689 A.2d 267, 269 (1997) (quoting Fenstamaker v.
           Fenstamaker, 337 Pa.Super. 410, 487 A.2d 11, 14
           (1985)). Moreover, “unless the evidence establishes
           an intentional disobedience or an intentional neglect
           of the lawful process of the court, no contempt has
           been proven.” Ricci v. Geary, 670 A.2d at 192.

Pruitt, supra.

     Misconduct     occurring   in    or   near   the   courtroom   falls   under

Subsection (3), which provides the court with the power to ensure that cases

will be heard in a manner conducive to a just and orderly resolution of the

issues presented.   Matter of Johnson, supra.           “To sustain a conviction

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. Pivotal to summary contempt under 42 Pa.C.S.A. § 4132(3) is

the presence of the judge; that is, the conduct must occur in front of and be

observed by the judge personally. See Moody, supra.

     It is undisputed that the court below intended to make and did make a

finding of criminal contempt.        However, the court proceeded under the

wrong subsection.      None of the four elements necessary under the



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Judicial Code were established. Pruitt, supra. Nor is there any evidence of

record that appellant was in the courtroom pursuant to any process. Rather,

appellant was merely sitting in the courtroom as a spectator.   The record

before us does not support a conviction for criminal contempt under

Subsection (2). Therefore, we must reverse appellant’s conviction, and we

must vacate his judgment of sentence.

     Judgment of sentence vacated. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/11/2014




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