Johnson, Matter of

• Decision Date: 06 July 1976
• Citation: 467 Pa. 552,359 A.2d 739
• Parties: In the Matter of A. Benjamin JOHNSON, a member of the Bar of the Commonwealth of Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 739

359 A.2d 739

467 Pa. 552

In the Matter of A. Benjamin JOHNSON, a member of the Bar of the Commonwealth of Pennsylvania.

Supreme Court of Pennsylvania.

Argued April 1, 1976.

Decided July 6, 1976.

Joseph C. Spaulding, Timonthy A. Crawford, Jack J. Levine, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Glenn S. Gitomer, Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

We are asked, in this case, to review ¹ 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 judgment 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 by 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,...