Commonwealth v. Maurizio

437 A.2d 1195, 496 Pa. 584, 1981 Pa. LEXIS 1136

• Court: Supreme Court of Pennsylvania
• Decided: December 17, 1981
• Docket: 80-1-147
• Status: Published

Opinions

OPINION OF THE COURT

O’BRIEN, Chief Justice.

Appellee, Catherine Maurizio, was served with a lawful subpoena directing her appearance as a Commonwealth witness at the homicide trial of Richard Márchese. Because she failed to appear, appellee was arrested pursuant to a bench warrant issued by the trial court. Following a hearing, the trial court ruled that appellee’s failure to appear at the Márchese trial constituted indirect criminal contempt of court. Appellee was sentenced to pay a fine of $300.

The Commonwealth filed a direct appeal to this Court, and now argues that the trial court committed an error of law in ruling that appellee’s conduct constituted only indirect criminal contempt. We believe, however, that the Commonwealth’s appeal must be quashed.

It has long been well-settled that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prevents the prosecution from appealing a verdict of acquittal. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Further, the verdict of acquittal need not be expressed to allow application of the aforementioned principle. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).¹ Even where the acquittal is the result of an error of law, the judgment of acquittal bars any retrial. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962),² Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118 (1963). Over a century ago, this Court stated:

“It must be remembered that criminal contempt of court is a specific criminal offense. It is punished sometimes by indictment, and sometimes in a summary proceeding, as it was in this case. In either mode of trial, the adjudication against the offender is a conviction, and the commitment in consequence is execution: ([Kearney’s Case] 7 Wheat. 38.)”

Passmore Williamson’s Case, 26 Pa. 9 (1855).

There are two classes of criminal contempt recognized in this Commonwealth, i.e. direct and indirect. As we stated in Commonwealth v. Marcone, 487 Pa. 572, 579, 410 A.2d 759, 762-763 (1980):

“The essence of [direct criminal] contempt is that the misconduct constitutes a direct affront to the dignity and authority of the court. . . . Where that disobedience or misbehavior occurs in the actual presence of the court or has the capacity of directly affecting the proceeding then in progress, it may be properly classified as a direct or the most grievous type of contempt. All other behavior which may have a more remote impact upon the dignity of the court and its ability to fulfill its responsibilities are classified as indirect criminal contempts.”

In providing for the allowable punishments for contempt, the legislature has recognized the direct-indirect classification.

“Except as otherwise provided by statute, the punishment of imprisonment for contempt as provided in Section 4131 (relating to classification of penal contempts) shall extend only to such contempts as shall be committed in open court, and all other contempts shall be punished by fine only.”

Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, 42 Pa.C.S.A. § 4132.

Both this Court and the legislature have thus recognized that conduct which constitutes indirect criminal contempt is less egregious than that required for direct criminal contempt. With that being so, we are unable to distinguish the instant case from one where either a judge or jury convicts a defendant of voluntary manslaughter and either expressly or impliedly acquits that defendant of the higher degrees of criminal homicide. In the latter situation, the Commonwealth could not appeal and argue that the defendant should have been convicted of either murder of the first degree or murder of the third degree. Neither can the Commonwealth do so in the instant case. Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1980), Commonwealth v. Haines, supra.

Appeal quashed.³

LARSEN, J., filed a dissenting opinion.

1 . In Green, the defendant was tried for murder and the Court informed the jury that they could find defendant guilty of either murder of the first degree, or murder of the second degree. The jury, without making any express finding on murder of the first degree, convicted the defendant of murder of the second degree. Following a retrial, the Court ruled that the implied acquittal of the former offense precluded retrial on that charge.

2 . In Fong Foo, the trial court directed, without any authority, the jury to return verdicts of acquittal as to all defendants. Despite the clearly erroneous action by the trial court, the Supreme Court held the prosecution could not appeal from the judgments of acquittal.

3 . While appellee has never filed a motion to quash the appeal on these grounds, this Court can always raise its lack of jurisdiction sua sponte. Commonwealth v. Saunders, 483 Pa. 29, 394 A.2d 522 (1978).