Com. v. Perkins, L

292 A.3d 1144

• Court: Superior Court of Pennsylvania
• Decided: April 5, 2023
• Docket: 2191 EDA 2021
• Status: Published

Opinion

J-A07003-23

2023 PA SUPER 61

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LEALI PERKINS : : Appellant : No. 2191 EDA 2021

Appeal from the Judgment of Sentence Entered September 21, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-MD-0000017-2021

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

OPINION BY DUBOW, J.: FILED APRIL 5, 2023

Appellant, Leali Perkins, appeals from the judgment of sentence entered

on September 21, 2021, after the municipal court found him guilty of direct

criminal contempt.1 After careful review, we conclude that the court erred by

finding Appellant to be in direct contempt. As a result, we vacate Appellant’s

conviction and judgment of sentence.

On September 17, 2021, Latonya Scott testified at a preliminary hearing

in connection with a burglary charge lodged against Appellant.2 Approximately

10 to 15 minutes after the hearing concluded, Scott was waiting for the

elevator in the hallway outside the courtroom when Appellant approached her

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1 We have jurisdiction to decide this direct appeal from the municipal court

pursuant to 42 Pa.C.S. § 1123(a.1).

2 The charge related to the burglary of Scott’s home. N.T. Hr’g, 9/21/21, at 6.

Appellant was convicted of this charge on July 27, 2022, at trial court docket number CP-51-CR-0008038-2021. J-A07003-23

from behind and threatened: “I’m going to get you, you fat lying bitch.”3 Scott

immediately returned to the courtroom where she loudly told the prosecutor

that Appellant had threatened her.4

As a result of Appellant’s conduct, the court convened a contempt

hearing on September 21, 2021. At the conclusion of the hearing, the court

found Appellant in direct criminal contempt pursuant to 42 Pa.C.S. § 4132(3).

In explaining its rationale, the court stated, in part:

[Scott] spent fourteen or fifteen minutes sitting inside of the courtroom and for one minute she walks out of the physical court towards the elevator, which is some distance on this floor. And in that one minute span she is confronted by [Appellant].

And he makes the statement [“]I am going to get you[,] you fat lying bitch.[”] He’s the only person near her. She hears it.

She immediately comes back to the courtroom. As soon as she came through the door she spoke out loudly [that] he threatened me. And that is how the [c]ourt came into knowledge of this incident.

N.T. Hr’g, 9/21/21, at 22-23 (emphasis added). The court’s summary of the

evidence clearly indicates that (1) Appellant threatened Scott outside the

courtroom, and (2) the court’s knowledge of the threat came from Scott and

was not first-hand.

The court immediately sentenced Appellant to a term of 3 to 6 months’

incarceration on the direct criminal contempt conviction. Appellant timely filed

3 N.T. Hr’g, 9/21/21, at 7.

4 Id. at 10.

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a Notice of Appeal and both he and the trial court complied with Pa.R.A.P.

1925.

Appellant raises the following issues for our review:

Was not the evidence legally insufficient to establish beyond a reasonable doubt that [Appellant] was guilty of direct criminal contempt where [Appellant’s] actions did not occur "in the presence of the court" as required by the contempt statute but rather occurred outside the presence of the judge fifteen minutes after the case was over when [] Scott had left the courtroom, walked 100 to 200 feet down a hallway and was about to press the button for the elevator?

Appellant’s Br. at 3.5

A.

“A trial court’s finding of contempt will not be disturbed absent an abuse

of discretion.” Commonwealth v. Meehan, 235 A.3d 1284, 1288 (Pa. Super.

2020) (citation omitted). Since this is an appeal from a contempt conviction

of the municipal court, we are “limited to a review of the record.” 42 Pa.C.S.

§ 1123(a.1). Additionally, since Appellant’s issue assails the sufficiency of the

Commonwealth’s evidence, we must determine if the evidence is sufficient to

enable the factfinder to find every element of the crime beyond a reasonable

doubt. Commonwealth v. Brumbaugh, 932 A.2d 108, 109 (Pa. Super.

2007).

5 Appellant also challenges the sufficiency of the evidence to support a finding

that his conduct obstructed the administration of justice. Appellant’s Br. at 3, 21. Because we grant Appellant relief based on his first issue, we do not reach his second.

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“[C]ontempt of court is the obstruction of the court’s orderly process.”

Commonwealth v. Stevenson, 283 A.3d 196, 205 (Pa. 2022) (citation

omitted). Criminal contempt has “as a dominant purpose the vindication of

the dignity and authority of the court and to protect the interests of the

general public.” Commonwealth v. Marcone, 410 A.2d 759, 762 (Pa. 1980).

Criminal contempt occurs in two ways: direct and indirect. In general,

contempt is “direct when committed in the court’s presence and indirect when

committed beyond its presence.” Crozer-Chester Medical Center v. Moran,

560 A.2d 133, 136 (Pa. 1989). To sustain a conviction for direct criminal

contempt, “the following elements must be established beyond a reasonable

doubt: 1) misconduct; 2) in the presence of the court; 3) committed with the

intent to obstruct the proceedings; 4) that obstructs the administration of

justice.” Meehan, 235 A.3d at 1289; 42 Pa.C.S. § 4132(3).

Indirect criminal contempt, on the other hand, “is committed by

obstructive conduct that occurs outside of the court’s presence.” Stevenson,

283 A.3d at 205. A conviction for indirect criminal contempt requires, inter

alia, proof that the alleged contemnor’s conduct violated a “definite, clear, and

specific” order or decree. Commonwealth v. Boyer, 282 A.3d 1161, 1167

(Pa. Super. 2022) (citations omitted).

Finally, we observe that a defendant released before trial is implicitly

ordered to refrain from committing witness or victim intimidation. 18 Pa.C.S.

§ 4956(a). A violation of the implied order is punishable via the court’s

contempt powers. Id. at § 4955(a)(2). Thus, when a defendant released

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before trial intimidates a witness of victim outside of court, as occurred in this

case, the defendant may be found guilty of indirect criminal contempt. See

Commonwealth v. Reese, 156 A.3d 1250, 1253 n.1, 1258 (Pa. Super. 2017)

(construing a conviction under Section 4955 to be a conviction for indirect

criminal contempt).

B.

Appellant’s first issue involves the interpretation of the phrase, “in the

presence of the court.” Appellant’s Br. at 10-21. Appellant argues that the trial

court improperly expanded the definition to include his conduct, which

occurred outside the courtroom. Id. According to Appellant, since his conduct

occurred outside the presence of the court, the evidence was insufficient to

convict him of direct criminal contempt. Id. We agree.

As described above, Appellant’s allegedly contemptuous conduct

occurred at the courthouse elevator, “out of the physical court [and] some

distance [away] on this floor.” N.T. Hr’g at 22-23. The judge acknowledged

that he was not present to view the misconduct, and learned of it only when

the victim returned to the courtroom immediately after the proceeding had

ended. Id. Nonetheless, the court convicted Appellant of direct criminal

contempt. Id. at 22, 28. In support, the court quoted Commonwealth v.

Falana, 696 A.2d 126, 129 (Pa. 1997), to reason that “misconduct occurs in

the presence of the court . . . if the conduct occurs outside the courtroom but

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so near thereto that it obstructs the administration of justice.” N.T. Hr’g at 23-

25.6

In Falana, the trial court convicted the defendant of direct criminal

contempt for threatening his assault victim in the “public section of the

courtroom while his back was to the judge.” 696 A.2d at 129. In affirming the

judgment of sentence, our Supreme Court opined that “misconduct occurs in

the presence of the court if the court itself witnesses the conduct or if the

conduct occurs outside the courtroom but so near thereto that it obstructs the

administration of justice.” Id.

The trial court’s reliance on Falana is misplaced for several reasons.

First, the Falana Court’s statement relating to misconduct outside the

courtroom is dicta since the question in Falana was whether it was

contemptuous for a defendant to issue a threat in the courtroom in a voice

too low for the trial judge to have heard. See Falana, 696 A.2d at 129. See

also Commonwealth v. Romero, 183 A.3d 364, 400 n.18 (Pa. 2018)

6 At the contempt hearing, the trial court relied upon Falana. In its Rule 1925(a) Opinion, however, it has relied on other legal authority that addresses direct contempt convictions based on a defendant’s failure to appear for a court hearing. Trial Ct. Op., 7/19/22, at 3-4 (unpaginated). We find those cases distinguishable from the facts before us because the failure to appear when ordered is an act that occurs in the presence of the court, as the court has convened and the contemnor’s absence from the tribunal is evident. Commonwealth v. Ferrera, 409 A.2d 407, 411 (Pa. 1979). See also Commonwealth v. Marcone, 410 A.2d 759, 764 n.5 (Pa. 1980) (explaining that the “deliberate and unexcused absence” from a scheduled court appearance may be “a direct contempt” on the basis that “this type of misconduct is the absence which is witnessed by the court”). Appellant’s conduct in the instant case did not occur in the court’s presence.

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(defining dicta as “[a] judicial comment made while delivering a judicial

opinion, but one that is unnecessary to the decision in the case and therefore

not precedential” (citation omitted)).7

Moreover, our Supreme Court subsequently explained that Falana

stands for the concept that while the contemptuous conduct must occur “in

the presence of the court,” the court “is under no obligation to prove that it

actually witnessed the disturbance.” Commonwealth v. Moody, 125 A.3d 1,

10-11 (Pa. 2015). The Moody Court accordingly held that direct criminal

contempt is, thus, defined by misconduct “‘directly under the eye’ of the

court—in the sense that the court is looking directly at it—[and] anywhere

‘within the view of the court.’” Id. at 12 (citation omitted).

Considering the above, it is evident that the misconduct at issue did not

occur “in the presence of the court.” The court did not hear the threat, as

Appellant issued it at the courthouse elevator, outside the courtroom and

“some distance [away] on this floor.” N.T. Hr’g at 23. The misconduct, thus,

did not occur “directly under the eye of the court [nor] anywhere within the

view of the court.” Moody, 125 A.3d at 12. Since the misconduct occurred

7 Additionally, the Court in Falana, 696 A.2d at 129, derived the phrase “so

near thereto” from a line of cases that, at its inception, cited to the federal contempt statute, 18 U.S.C. § 401(1), for the definition of direct contempt. Section 401 defines direct contempt as “[m]isbehavior of any person in [the court’s] presence or so near thereto as to obstruct the administration of justice.” Id. (emphasis added). The words “so near thereto” are conspicuously absent from the Pennsylvania statute. 42 Pa.C.S. § 4132(3).

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outside the presence of the court, the court erred by finding Appellant in direct

criminal contempt.8

C.

As a result of the above, we vacate Appellant’s conviction and judgment

of sentence for direct criminal contempt.9

Judgment of sentence vacated. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/05/2023

8 Further, as the Moody Court observed, direct criminal contempt is punishable by summary proceedings without “the usual steps of . . . a conventional court trial[,] . . . a drastic departure from our traditional view of due process.” 125 A.3d at 8 (citation omitted). To expand the definition of “in the presence of the court” to include conduct that is outside the presence of the court would risk encroaching on defendants’ constitutional right to due process.

9 As discussed supra, 18 Pa.C.S. §§ 4955 and 4956 authorize the trial court

to convict a defendant, who is released before trial, of indirect criminal contempt when the defendant intimidates a victim outside the presence of the court. Since the trial court did not convict Appellant of indirect criminal contempt, we are constrained to reverse the conviction.

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