In Re Johnson

359 A.2d 739, 467 Pa. 552, 1976 Pa. LEXIS 641

• Court: Supreme Court of Pennsylvania
• Decided: July 6, 1976
• Docket: 417
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

We are asked, in this case, to review¹ the conviction of an attorney for contempt of court based upon remarks made to the jury during the closing argument of a criminal trial. Appellant A. Benjamin Johnson represented Larry Howard at Howard’s trial for murder and lesser included offenses. During closing argument, appellant made five statements which are the basis of his contempt conviction:

1. Appellant stated that he “found out the judge and the District Attorney had signals, where the District Attorney and the judge had a signal where when the judge didn’t understand the question [objection by district attorney] where the District Attorney understood and the judge didn’t understand it.”

2. Appellant stated that he had not received a copy of a witness’ statement which the district attorney claimed to have given him.

3. When the district attorney objected, saying that he had given appellant the statement, appellant said, “I have never seen a statement. I don’t have to lie. I come from a good church family.”

4. When the court said, “Mr. Johnson, the District Attorney says you have been given every statement,” appellant stated, “I don’t have to take his word, that’s the whole point. The District Attorney says they gave me every statement that was taken. Maybe we don’t believe him.”

5. Finally, the court asked appellant how long his closing argument would be. Appellant responded, “I don’t know how long I will be judge, I will speak as long as necessary.”

A petition and rule to show cause why appellant should not be held in contempt of court containing the five statements was filed and granted on December 26, 1974, approximately four months after Howard’s trial. At the hearing on the rule, held January 29, 1975, the Commonwealth offered into evidence authenticated portions of the trial transcript, the transcript of a hearing to correct the notes of testimony, and the transcript of a conference held by the trial judge, the district attorney and appellant following closing arguments in Howard’s trial. No testimony, other than that necessary to authenticate the transcripts, was offered or taken. Appellant demurred to the Commonwealth’s case and offered no evidence of his own when the demurrer was overruled. The rule was made absolute on March 13, 1975, and appellant was sentenced to pay a $200 fine on March 21, 1975. Appellant appeals from the j udgment of sentence.

Although appellant makes several arguments, we address only the sufficiency of the evidence to sustain the conviction. This necessarily involves a determination of the elements of the crime for which appellant was convicted.

The Commonwealth, appellant and the trial court, at the time of the hearing, all believed the prosecution to have proceeded under authority of subsection I of the Act of June 16, 1836, P.L. 784, § 23, 17 P.S. § 2041 (1962). That section, in its entirety, provides:

“The power of the several courts of this commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following cases, to-wit:

“I. To the official misconduct of the officers of such courts respectively;

“II. To disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court;

“III. To the misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.”

Although this Court has never addressed the scope of this statute, we believe that each of these subdivisions was intended by the Legislature to permit the punishment, by exercise of the contempt power, of a different type of conduct. The distinction among the subsections is, then, to be made not by reference to the class of persons included within the subsection, but by reference to the conduct proscribed.²

Subsection I permits the courts of the Commonwealth to compel their officers properly to perform their ministerial duties. For example, sheriffs must serve process, court reporters must record and transcribe testimony and prothonotaries must receive, date and file documents. Misconduct of any of these prescribed duties, which are imposed upon the individual by virtue of the official position held, is made punishable by subsection I. There need be no formal order directing the individual to do an act nor does the misconduct have to be within the presence of the court. Subsection I authorizes the court to punish the misconduct of any of the day to day functions necessary to the administration of justice.

Subsection II permits a court to punish “disobedience or neglect” of its “lawful process.” Parties must obey decrees and orders, witnesses must appear when subpoenaed, jurors must present themselves when called. 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 court’s presence. Subsection II permits the courts to compel compliance with formal orders necessary or resulting from the trial of lawsuits.

Finally, subsection III grants the court power to ensure that lawsuits will be heard in a manner conducive to the just and orderly resolution of the issues presented. Any conduct “in the presence of the court” which “obstructs the administration of justice” may be punished under this grant of power. The third subdivision requires no formal order, but rather incorporates an implicit standard of decorum within the presence of the court. The conduct involved in this case could only be punished by exercise of the contempt power granted under subsection III of the Act of June 16,1836.³

Criminal contempt of court is a crime. In a prosecution for criminal contempt, the Commonwealth has the burden of proving every element of the crime beyond a reasonable doubt. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). To prove criminal contempt of court which may be acted upon under authority of subsection III of the Act of June 16, 1836, the Commonwealth must prove an improper intent,⁴ an action and an obstruction of the administration of justice. In this case we believe that there has been no proof that appellant’s action obstructed the administration of justice.

Cases finding an obstruction of the administration of justice, as evidenced by the affirmance of a conviction for contempt of court under subsection III, give some idea what is meant by the phrase. See, e. g., Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1973) (fighting with deputy sheriffs in courtroom after they stopped an unlawful attempt by criminal defendants to leave); Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971) (defendant interrupted Commonwealth’s closing argument, refused to agree to behave in an orderly manner); Mayberry Appeal, 434 Pa. 478, 255 A.2d 131 (1969), vacated on other grounds, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) (defendant interrupted proceedings, called trial judge a “hatchet man for the State,” “a dirty S.O.B.,” and a “dirty tyranical old dog”).

The term was defined somewhat more specifically in Tenenbaum v. Caplan, 454 Pa. 1, 4, 309 A.2d 428, 430 (1973):

“The statute [subsection III] requires that there be an obstruction of the administration of justice which is not present in this case. There was no interruption of the trial. There was no disruption of the proceedings. Under such circumstances, we cannot find that appellant’s conduct obstructed the administration of justice.”

As these cases indicate, for conduct to be an obstruction of the administration of justice, it must interfere with and disrupt the orderly process of a court.

In this case, the first remark, alleging signals between the trial judge and the district attorney, prompted an immediate curative instruction by the court that no signals had passed between it and the district attorney. The colloquy takes 19 lines in the record — 7 lines comprising the allegation, 5 lines of objection by the district attorney, 2 lines of response by appellant and 5 lines of instruction by the court. The entire incident could not have lasted more than a minute or two.

The next three statements all occur within 16 lines of the record — 11 lines by appellant, 3 lines of objection by the district attorney and 2 lines of instruction by the court. Again, the entire incident could not have taken more than a moment or two.

The last statement occupies two lines in the record.

It is clear, then, that appellant did not disrupt or delay the proceedings in any improper way. He was delivering his closing argument. He made statements to which the district attorney objected, he responded to the objection and the trial court ruled and instructed the jury. The procedure was orderly, there was no argument concerning rulings, there was no attempt deliberately to disrupt the trial. All of the language used was courteous. There is no allegation or indication anywhere in the record that voices were raised. We find no obstruction of the administration of justice in the manner, place or time of delivery of these remarks.

The Commonwealth would have us find obstruction in the substance of appellant’s remarks. It creates the following syllogism: (1) if these remarks had been made by a prosecutor any conviction obtained would have been reversed on appeal, (2) if it is improper for the Commonwealth to make such remarks it is improper for defense counsel to make them, (3) therefore, appellant obstructed justice and is guilty of contempt. This reasoning fails at step (3).

We cannot say whether the remarks, if made by a prosecutor, would result in reversal of a conviction. Such a determination would turn on the facts of the case, particularly with regard to whether the remarks were harmless in the context of the trial. Moreover, very few, if any, prosecutors are held in contempt for arguments made to the jury which are ultimately held to have been prejudicial. There is a distinct difference between making an improper argument to the jury and obstructing the administration of justice. It would be chaotic if any mistake which resulted in reversal of a conviction led also to the conviction of contempt of court of the person who made the mistake. Under such a system the spirited advocates upon whom we rely to ferret out the truth ⁵ would be a memory, replaced by attorneys fearful of any miscue.

If the Commonwealth wished to show that the substance of appellant’s remarks obstructed justice, it would have to show that they affected the process of trial in some way. Mere affront to the trial judge is not enough. As Mr. Justice Douglas stated:

“[T]he law of contempt is not made for the protection of judges who may be sensitive . . . . Judges are supposed to be men of fortitude, able to thrive in a hardy climate. Conceivably a campaign could be so managed and so aimed at the sensibilities of a particular judge and the matter pending before him as to cross the forbidden line. But the episodes we have here do not fall in that category.”

Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947).⁶ Here it would take a showing that the remarks prejudiced the proceedings in some way to show that they obstructed the administration of justice. In a jury trial, in which there was no disruption and no delay, no assault on the authority of the court, and no vituperative attack on the trial judge, obstruction of the administration of justice necessarily implies prejudicing the jury in its deliberations. The Commonwealth, at the January 29, 1975, hearing introduced no evidence to show that the jury was prejudiced by appellant’s remarks. The remarks themselves, referring to factual matters which took place during the trial and in the presence of the jury, are not such that we will create a presumption of improper influence. We are unwilling otherwise to speculate concerning the existence of an element of the crime charged.

In order to show a contempt of court punishable under subsection III of the Act of June 16, 1836, the Commonwealth had to show an obstruction of the administration of justice. It has failed to do so. Appellant’s claim that the evidence introduced at the hearing was insufficient to sustain the conviction must, therefore, be sustained. Judgment of sentence reversed.

POMEROY, J., filed a dissenting opinion in which JONES, C. J., and EAGEN, J., joined.

1 . We hear this direct 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).

2 . The United States courts have a similar statute, first adopted in 1831, which also distinguishes among types of conduct rather than persons included within each section. 18 U.S.C. § 401 (1969) provides:

“A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—

“(1) Misbehavior of any person in its presence or so near as to obstruct the administration of justice;

“(2) Misbehavior of any of its officers in their official transactions;

“(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”

See Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941).

3 . The Commonwealth, in its brief before this Court, agrees:

“[T]he Commonwealth would concede that in instances of official misconduct by an attorney as an officer of the court committed during trial, it is incumbent not only to establish misbehavior but also an actual obstruction of the administration of justice as required by subsection 3 of the Act of June 16, 1836, P.L. 784, § 23, 17 P.S. § 2041.”

See also American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 7.1 (1972).

4 . Because we find that the Commonwealth has not shown an obstruction of the administration of justice, we do not address whether it also failed to prove the requisite improper intent. We note, however, that President Judge Jamieson, at the sentencing hearing, stated:

And whatever motivated you at the time, I am sure it wasn’t essentially an evil motive; you weren’t doing it just to be an evil person. You did it because you had a client who you were interested in protecting, and you didn’t think you were getting a fair shake.

5 . “The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.”

Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593 (1975).

6 . The contempt power of a trial judge is to be used to defend the orderly administration of justice. When conduct in the presence of the court threatens the administration of justice, it may be dealt with by means of the court’s contempt power. Conduct which does not threaten the administration of justice, however, need not be tolerated. The offending party may be directed to cease his activities. Refusal to comply with such a direct order of the court would be punishable under subsection II of the Act of June 16, 1836. Moreover, if the offending party is an attorney, he may be subject to professional discipline. But the contempt power of the court is restricted to defense of the process, not the man wielding the power.