J-S59027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAWANDA WRIGHT,

                            Appellant                  No. 338 EDA 2014


          Appeal from the Judgment of Sentence of December 5, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-MD-0003189-2013


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED OCTOBER 07, 2016

        Appellant, Jawanda Wright, appeals from the judgment of sentence

entered on December 5, 2013, after she was found guilty of direct criminal

contempt.1 We affirm.

        The trial court summarized the relevant factual background and

procedural history as follows:

          At the Justice Juanita Kidd Stout Center for Criminal Justice,
          the First Judicial District permits persons to bring cell
          phones and other electronic devices into the courtroom, but
          requires that those devices not be seen, heard, or used.
          Prominently displayed in the lobby of the courthouse, in
          every elevator and on the doors outside of every courtroom
          is a sign that provides the following:



____________________________________________


1
    42 Pa.C.S.A. § 4137(a)(1).



*Former Justice specially assigned to the Superior Court.
J-S59027-16


          By the Order of the Court, all cell phones and other
          electronic devices that are brought to the courtroom and
          not powered off and out of sight may be confiscated and
          searched by the court. Failure to comply with this policy
          may result in sanctions, including punishment for
          criminal contempt and expulsion from the courtroom.

       On December 5, 2013, the court began its list in Courtroom
       803 at 8:30 a.m. Court staff announced the court’s cell
       phone and electronic device policy when court began and
       one or two times after that during the day.                At
       approximately 1:05 p.m., the court was conducting a
       sentencing hearing when the court’s attention was drawn to
       Ms. Thomas [(an appellant in a related appeal, who was
       using her cell phone)]. . . . Based on the court’s direction,
       court staff confiscated Ms. Thomas’s cell phone . . . and
       stated that the court would hold a hearing on [her] direct
       criminal contempt.

       Approximately five minutes later, [Appellant’s] cell phone
       played a tune which the court heard. Her phone was also
       confiscated, the Public Defender was appointed and
       [Appellant] was advised that the court would hold a hearing
       on her direct criminal contempt.       [Appellant] and Ms.
       Thomas complied with the court’s request to provide their
       cell phones to the court.

       At the hearing, the court heard from Ms. Thomas,
       [Appellant,] and Ms. Price, who is Ms. Thomas’ sister. The
       court learned the three of them were present in court with
       Ms. Price’s four year old daughter to support [Appellant’s]
       daughter[]. . . . [Appellant] explained that her phone went
       off when she was in the process of turning it off.

       The court held Ms. Thomas and [Appellant] in direct criminal
       contempt based on its observations that they both
       obstructed the court’s proceedings as a result of their failure
       to follow the directions concerning cell phones that are
       posted all over the courthouse.            Defense counsel
       recommended a sentence of no further penalty for Ms.
       Thomas and [Appellant]. The court agreed with the
       recommendation and sentenced [them] to no further
       penalty.


                                    -2-
J-S59027-16


         When determining what to do with the cell phones that were
         in the possession of the court, the court explained that it
         intended to keep the cell phones as evidence at least during
         the [30]-day appeal period. Ms. Thomas and [Appellant]
         decided to waive their right to an appeal and the court,
         therefore, returned the phones to them.           The court
         conducted a colloquy in support of its findings that Ms.
         Thomas and [Appellant] properly waived their right to an
         appeal. Counsel for Ms. Thomas and [Appellant] agreed
         that the waiver was knowing, intelligent, and voluntary.

Trial Court Opinion, 12/29/15, at 2-4 (internal citations omitted). Appellant

then filed a post-sentence motion, asking the court to vacate its contempt

verdict, claiming she had been coerced into waiving her right to appeal. The

trial court denied the motion on January 13, 2014.        This timely appeal

followed.2

       Appellant presents two issues for our review:

         1. Did [] the [trial] court violate due process of law by
         extorting an involuntary waiver of [Appellant’s] appellate
         rights as the ransom for the safe return of her cell phone?

         2. Was [] the evidence insufficient to prove contempt in that
         there was no intent to disrupt proceedings and no actual
         obstruction of the administration of justice?

Appellant’s Brief at 3.




____________________________________________


2
   Appellant filed a notice of appeal on January 27, 2014 and was directed by
the trial court to file a concise statement of errors complained of on appeal,
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant
timely filed her Rule 1925(b) statement and, within the statement, Appellant
listed the claims she currently raises on appeal.



                                           -3-
J-S59027-16


      In considering an appeal from a contempt order, we give great

deference to the trial court. Commonwealth v. Williams, 753 A.2d 856,

861 (Pa. Super. 2000). Because each trial court is the “exclusive judge of

contempts against its process,” we will only reverse the trial court’s decision

if there is a plain abuse of discretion. Id. We are limited to examining the

record to determine if the facts of record support the trial court’s decision.

Id.   We must evaluate the record and consider all evidence actually

received. Id.

      Appellant first argues that her waiver of appellate rights was

involuntary. Appellant’s Brief at 7. The right to appeal can only be waived if

it is a knowing and intelligent act.    Commonwealth v. Dosch, 501 A.2d

667, 670 (Pa. Super. 1985).     Appellant’s assertion is unsupported by the

record.   The trial court found Appellant had knowingly, intelligently, and

voluntarily waived her appellate rights.     N.T. Hearing, 12/5/13, at 52.

Further, Appellant’s counsel testified that she believed the waiver was

knowing, voluntary, and intelligent. Id. at 51. In addition, the trial court

conducted a thorough colloquy to determine whether Appellant understood

her right to appeal, had spoken to her attorney, and was voluntarily,

knowingly, and intelligently waiving her appellate rights.         Id. 47-52.

Although Appellant is now asserting that the trial court coerced her to waive

her rights by holding her cell phone, she testified during her colloquy that no

one, including the court, had coerced her to waive her rights.     Id. 49-50.


                                       -4-
J-S59027-16


Appellant is bound by the statements she made during her colloquy and

cannot    now    obtain   relief   by   contradicting    those   statements.

Commonwealth v. Barnes, 687 A.2d 1163, 1167 (Pa. Super. 1996); see

also Commonwealth v. Bishop, 645 A.2d 274, 277 (Pa. Super. 1994)

(holding an appellant cannot obtain relief by claiming he lied during his

waiver colloquy); Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa.

Super. 2002) (holding an appellant was not entitled to relief based on the

claim that his attorney coerced him to plead guilty when he stated in his

plea colloquy that he was not being forced or threatened).

      Further, the record does not support Appellant’s contention of

coercion. The fact that Appellant chose to re-acquire her lawfully confiscated

cell phone instead of appealing her direct criminal contempt conviction does

not make her decision to waive her appellate rights involuntary. Appellant

used her cell phone to commit an unlawful act and accordingly, it was proper

for the court to seize her phone and retain possession of it.            See

Commonwealth v. Durham, 9 A.3d 641, 645 (Pa. Super. 2010). The trial

court gave Appellant an accommodation by allowing her an opportunity to

have her cell phone returned immediately, but Appellant was free to refuse

this option and appeal the trial court’s decision.   Further, the trial court

allowed Appellant to bypass the requirement that she file a motion seeking

return of her property. See Pa.R.Crim.P. 588. Appellant now contends there

was no need for the trial court to seize her phone, as she did not dispute


                                    -5-
J-S59027-16


that she possessed it. However, she did not raise this objection before the

trial court and has accordingly waived this issue. Pa.R.A.P. 302(a).

      For these reasons, we find Appellant’s waiver was not involuntary.

Accordingly, she waived her right to appellate review.     However, we will

address her argument that the evidence was insufficient to prove contempt,

as we find it to be without merit.

      When reviewing a claim of sufficiency of the evidence, we must

determine whether “the evidence at trial, and all reasonable inferences

derived therefrom, when viewed in the light most favorable to the

Commonwealth . . ., are sufficient to establish all elements of the offense

beyond a reasonable doubt.”      Commonwealth v. Diamond, 83 A.3d 119,

126 (Pa. 2013).

      Trial courts have the power to impose summary punishment for

contempt of court. 42 Pa.C.S.A. § 4132. Contempt proceedings are criminal

if they “have as a dominant purpose the vindication of the dignity and

authority of the court and to protect the interests of the public.”

Commonwealth v. Marcone, 410 A.2d 759, 762 (Pa. 1980).                 Criminal

contempt is divided into direct and indirect contempt. Id. A direct criminal

contempt is “misconduct of a person in the presence of the court, or

disobedience to or neglect of the lawful process of the court, or to

misbehavior so near thereto as to interfere with the immediate business of

the court.”   Id.    Here, Appellant argues that there was not sufficient


                                     -6-
J-S59027-16


evidence to demonstrate she intended to disrupt proceedings or cause an

obstruction of justice. Appellant’s Brief at 9.

      Evidence is sufficient to establish criminal contempt where there is

proof: “(1) of misconduct, (2) in the presence of the court, (3) committed

with intent to obstruct the proceedings, and (4) that obstructs the

administration of justice.” Commonwealth v. Moody, 125 A.3d 1, 5 (Pa.

2015).

      Appellant’s behavior constituted misconduct. Misconduct is “behavior

inappropriate to the actor.” Commonwealth v. Falana, 696 A.2d 126, 129

(Pa. 1997).   Here, Appellant had her cell phone present in the courtroom

without it being turned off and out of sight. This is a direct violation of the

court order posted on signs throughout the courthouse, including the lobby

and all elevators. N.T. Hearing, 12/5/13, at 7-9. Appellant asserts she was

only turning off her cell phone when it was confiscated. Even so, this clearly

violates the court’s order. Appellant asserts that turning her phone off was

appropriate conduct; however, this is inaccurate.       Appropriate behavior

would have been to ensure the cell phone was off before entering the

courtroom or going outside the courtroom to turn the cell phone off.

Appellant’s actions clearly constituted misconduct.

      Appellant does not dispute that her misconduct occurred in the

presence of the court, as it occurred when the trial court judge was clearly

present.   Appellant’s Brief at 10.    However, Appellant contends that the


                                      -7-
J-S59027-16


element of intent is not met because she did not intend to disrupt the

proceedings. This claim fails.

      Intent can be found if the offender “knows or should reasonably be

aware that his conduct is wrongful.”   Falana, 696 A.2d at 129. Appellant

concedes that she knew her conduct of having her cell phone turned on was

wrongful.   Nevertheless, Appellant contends that she was not aware that

turning her cell phone off was wrongful as well.     Appellant’s Brief at 10.

Clearly, if Appellant knew having her phone turned on in court was wrongful,

she should have reasonably known that any use of the cell phone in the

courtroom was wrongful, even if just to turn it off. Appellant could have and

should have exited the courtroom so as not to disrupt the court proceedings

and further violate the order.

      Finally, Appellant argues that the second it took to power her phone

down and the small noise it made did not constitute a significant disruption

to constitute an obstruction of justice. Appellant’s Brief at 11. To obstruct

justice, conduct must significantly disrupt proceedings, requiring “actual,

imminent prejudice to a fair proceeding or prejudice to the preservation of

the court’s orderly procedure and authority.”    Falana, 696 A.2d at 129.

Despite Appellant’s argument that her actions were not significant, her

disregard for the court order disrupted the sentencing proceeding being

conducted by the court. N.T. Hearing, 12/5/13, at 5-7. Further, as the trial

court correctly noted, cell phones in courtrooms “present unique and


                                    -8-
J-S59027-16


important challenges.” Trial Court Opinion, 12/29/15, at 4. Cell phones can

create potential security issues and can prevent witnesses from feeling safe

in testifying before the tribunal.    Further, Appellant’s misconduct was in

open disregard to the trial court’s authority and the trial court’s order

prohibiting cell phone use in court. Without punishing Appellant, the court’s

authority would have been eroded and the ability to control the courtroom

would have been threatened. See Williams, 753 A.2d at 863 (noting failing

to respond to misconduct would have eroded the court’s authority).

Appellant’s misconduct obstructed the administration of justice. Accordingly,

even if Appellant had not waived her right to appeal, she would not be

entitled to relief.

      Judgment of sentence affirmed.

      Bender, P.J.E. joins this memorandum.

      Fitzgerald, J. notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2016




                                      -9-
