Commonwealth v. Crawford

352 A.2d 52, 466 Pa. 269, 1976 Pa. LEXIS 467

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

This is an appeal from a six month prison sentence, summarily imposed after a finding of direct criminal contempt of court.¹ The courtroom misconduct found to be contemptuous occurred during the murder trial of Arthur Crawford. Appellant, also charged with this crime, testified for the prosecution at Crawford’s first trial which resulted in a conviction.² Between Crawford’s first and second trial, appellant was separately tried and acquitted for his alleged role in the killing.

During the second trial of Crawford, appellant was again called as a witness by the Commonwealth. Following appellant’s refusal to testify, the court warned him that failure to testify would result in sanctions being imposed. Upon his continued refusal to testify, appellant was summarily held in contempt of court and sentenced to six months in prison.

Appellant advances several assignments of error. We find one to be persuasive and accordingly reverse³ the judgment of sentence.

Appellant contends that the right to counsel is mandatory despite the summary nature of the proceedings. Appellant was not represented by counsel during the summary contempt proceeding.⁴ In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Supreme Court expanded the Gideon principle⁵ by-holding that an indigent defendant may not be tried for an offense, even though it is classified as “petty,” when he is subject to a term of imprisonment without being furnished counsel or without validly waiving counsel. We agree with appellant that Argersinger is controlling here, and so held in Commonwealth v. Abrams, 461 Pa. 327, 336 A.2d 308 (1975). In Abrams, which is directly on point, we said:

“During the contempt proceedings in the trial court [following his refusal to testify], [appellant] was without the assistance of legal counsel. Moreover, he was not advised of his right to such assistance and admittedly did not knowingly and intelligently waive this right. Under these circumstances, the proceedings violated due process and render the adjudication of contempt null and void.

See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and Commonwealth v. Bethea, 445 Pa. 161, 282 A.2d 246 (1971).”

Id. at 328-329, 336 A.2d at 309. Here, as in Abrams,6 the summary conviction for contempt of court of a witness who was not represented by counsel cannot stand, and the appellant’s judgment of sentence must be vacated.⁷

Judgment of sentence vacated, cause remanded for a new trial.

EAGEN, J., joins and filed a concurring opinion. POMEROY, J., filed a dissenting opinion. NIX, J., filed a dissenting opinion in which JONES, C. J., and POMEROY, J., join.

Footnotes

1

. See Act of June 16, 1836, P.L. 784, §§ 23 II, 24, 17 P.S. §§ 2041 II, 2042.

2

. A new trial was awarded by this Court. Commonwealth v. Crawford, 452 Pa. 326, 305 A.2d 893 (1973).

3

. We hear this appeal under authority of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(5), 17 P.S. § 211.202(5) (Supp.1975).

4

. Appellant argues that he in fact had available counsel who was denied the opportunity to appear on his behalf. The record shows that appellant, having been duly subpoenaed, appeared and announced that he was leaving the courtroom to visit the men’s room. He failed to return. After the issuance of a bench warrant, he was apprehended. An assistant public defender approached the attorney for the Commonwealth during the trial, but before appellant had been called as a witness, and the following occurred:

“MR. STRAUSS, (the assistant district attorney). Can we see Your Honor at sidebar? (Conference at sidebar, outside of the hearing of the jury, in the presence of the Court, Mr. Strauss, Mr. Egnai (Crawford’s counsel) and Mr. William Sayer, Esquire, Assistant Public Defender, during which the following took place:)

MR. STRAUSS: Your Honor, I am in the middle of this trial and this man — I don’t want this person walking up to me.

MR. SAYER: If he is calling this witness, Paul Geiger—

THE COURT: You just wait out there. You do not break in on the trial.” (Emphasis in original.)

When appellant was called before the court, the assistant public defender did not appear and offer his representation nor did appellant at that time indicate that he had counsel available or that he desired the assistance of counsel.

5

. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

6

. See In re Di Bella, 518 F.2d 955, 17 Crim.L.Rep. 2334 (2d Cir., 1975):

“In Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) the Court held that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he is represented by counsel at his trial. The Circuits with an opportunity to do so have concluded that this right must be extended to a contempt proceeding, be it civil or criminal, where the defendant is faced with the prospect of imprisonment. U. S. v. Sun Kung Kang, 468 F.2d 1368, 12 Cr.L. 2098, (9th Cir. 1972); In re Kilgo, 484 F.2d 1215, 14 Cr.L. 2087 (4th Cir. 1973); Henkel v. Bradshaw, 483 F.2d 1386 (9th Cir. 1973). We agree.”

7

. Our disposition of the right-to-counsel issue makes it unnecessary for us to decide two of appellant’s other assignments of error: (1) that a summary proceeding holding anyone guilty of contempt of court is a denial of due process; and (2) that appellant’s refusal to testify was privileged. The remedy for the first assignment is no different than that which we order today; that is, a new trial. The second assignment may be presented to the court on retrial.

Appellant also urges that because the court held him to be in contempt on the basis of his statement, under oath, that he would not testify, and did not actually witness a refusal to answer a question asked of appellant, his act could not, as a matter of law, be contemptuous. We reject this claim. The trial court was under no obligation to go through the empty formality of asking appellant questions to determine if his persistent refusal to testify was sincere. A refusal to testify, without more, may be sufficient to establish contempt of court. We do not, of course, hold that appellant was in contempt of court; that is initially for the trial court. We do hold that there is no need to verify, by asking questions, a witness’ statement that he will not testify. The statement alone may be taken as the equivalent of the act.