Commonwealth v. Allen

COMMONWEALTH OF PENNSYLVANIA, Appellee

v.DAVID ALLEN, Appellant

J-S14019-15

No. 1306 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

JUNE 19

,

2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence of April 9, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-MD-0000527-2014

BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:

Appellant, David Allen, appeals from the judgment of sentence entered on April 9, 2014. We affirm Appellant's judgment of sentence, but remand for the correction of a clerical error.

The trial court has ably explained the underlying facts of this case:

On August 8, 2006, Appellant was arrested and charged with two firearm[s] offenses.¹ [On April 20, 2007, Appellant was held for court on the firearms offenses and the case was transferred from the Philadelphia Municipal Court to the Philadelphia County Court of Common Pleas. The Philadelphia County Court of Common Pleas then issued Appellant a Notice of Trial, commanding Appellant to attend his criminal trial on July 3, 2007. Although Appellant signedthe Notice of Trial, Appellant did not appear for his July 3, 2007 trial]. . . .

In fact, Appellant had [failed to appear for trial on other charges] on several prior occasions, necessitating five bench warrants between 1991 and 1992. When Appellant failed to appear [for trial on July 3, 2007, Appellant's] counsel was permitted to accept service on his behalf. A bench warrant was issued at the next hearing on August 15, 2007, when [Appellant] again failed to appear.

Appellant was finally located seven years later and a contempt hearing was held [before Philadelphia County Court of Common Pleas Judge Michael E. Erdos] on April 9, 2014. [During the hearing, d]efense counsel claimed [that] Appellant's lengthy absence was in part because the attorney who had accepted service for Appellant's bench warrant had used an incorrect address [for Appellant]. The address the attorney had used, however, was the address Appellant had given to the police and the one listed in the court system's records. When Appellant was asked why he failed to appear, he stated that he had lost his home after paying bail and that he "forgot about the whole situation." Though he had originally intended to turn himself in, Appellant claimed he forgot to do so once his life had turned around and his grandchildren were born.

Given Appellant's history of failing to appear and the extreme length of his absence, the [trial c]ourt found [] Appellant in contempt of court and sentenced him to three to six months [in jail]. [However, w]hen drafting the sentencing order, the court clerk listed the applicable contempt statute as [42 Pa.C.S.A.] § 4137(a)(2), a provision applying to [magisterial district] judges, instead of [42 Pa.C.S.A.] § 4132(2). . . . The [trial c]ourt mistakenly signed this order on April 9, 2014.

Trial Court Opinion, 7/31/14, at 1. (internal citations omitted).

Appellant filed a timely notice of appeal to this Court. Appellant now lists the following claims in his statement of questions involved on appeal:²,³

1. Was not the sentence of [three to six] months' incarceration imposed by [the trial] court after finding Appellant in contempt under 42 Pa.C.S.A. § 4137(a)(2) illegal, as the maximum sentence established by that statute is a fine of no more than $100[.00], see 42 Pa.C.S.A. § 4137(a)(2), (c); Pa.R.Crim.P. 140(B)(3)(a)?

2. Did not the [trial] court err in finding Appellant in contempt under 42 Pa.C.S.A. § 4137 as the conviction cannot be amended post-verdict or post-appeal to any other type of contempt conviction as doing so would violate Appellant's right to due process, including the right to notice, the opportunity to present a defense, and the prohibition on double jeopardy under the United States and the Pennsylvania Constitutions, and because there is no jurisdiction to do so, see U.S. Const. Art. V, XIV; Pa. Const. Art. 1 §§ 9, 10; 18 Pa.C.S.A. §§ 109, 110; Commonwealth v. Campana, 304 A.2d 432 (Pa. 1973); 42 Pa.C.S.A. § 5505?

3. Did not the [trial] court, in finding Appellant in contempt under 42 Pa.C.S.A. § 4137(a)(2), violate the requirements of due process, including the right to notice and the opportunity to prepare an adequate defense, under the United States and Pennsylvania Constitutions and Pa.R.Crim.P. 140(B)?

4. Did not the [trial] court err in finding Appellant in contempt under 42 Pa.C.S.A. § 4137(a)(2) where it violatedAppellant's statutory right to an automatic stay of the imposition of punishment and the right to de novo appeal and Appellant was not advised of these rights, see 42 Pa.C.S.A. § 4137(d); Pa.R.Crim.P. 140-141?

5. Would not the [trial] court have erred even if it had convicted Appellant of contempt under 42 Pa.C.S.A. § 4132(3), which it did not, where a contempt finding would [have] violated the requirements of due process under the United States and Pennsylvania Constitutions because Appellant would have been found in contempt for failing to appear for a court date of which he was not served with notice?

6. Would not the [trial] court have erred even if it had convicted Appellant of contempt under 42 Pa.C.S.A. § 4132, which it did not, where the proceedings of the [trial] court in the contempt trial failed to satisfy the requirements of due process, including the right to notice, the opportunity to prepare an adequate defense, and the right to the effective assistance of counsel under the United States and Pennsylvania Constitutions?

7. Was not the evidence insufficient for 42 Pa.C.S.A. § 4137(a)(2) and would not the [trial] court have erred even had it convicted Appellant of contempt under 42 Pa.C.S.A. § 4132(2), which it did not, where the evidence was insufficient to prove the elements of the offense beyond a reasonable doubt because: (1) the order was not definite, clear[,] and specific; (2) Appellant lacked notice of the order; (3) the act was not volitional; and[,] (4) there was no wrongful intent?

Appellant's Brief at 5.⁴

At the outset, we note the distinction between civil and criminal contempt. As our Supreme Court explained:

There is nothing inherent in a contemptuous act or refusal to act which classifies that act as "criminal" or "civil." The distinction between criminal and civil contempt is rather a distinction between two permissible judicial responses to contumacious behavior. For example, it is clear that a contemptuous refusal to testify before a grand jury may be dealt with either [as] criminal contempt, civil contempt, or both.

These judicial responses are classified according to the dominant purpose of the court. If the dominant purpose is to prospectively coerce the contemnor to comply with an order of the court, the adjudication of contempt is civil. If, however, the dominant purpose is to punish the contemnor for disobedience of the court's order or some other contemptuous act, the adjudication of contempt is criminal.

Dominant purpose of coercion or punishment is expressed in the sanction imposed. A civil adjudication of contempt coerces with a conditional or indeterminate sentence of which the contemnor may relieve himself by obeying the court's order, while a criminal adjudication of contempt punishes with a certain term of imprisonment or a fine which the contemnor is powerless to escape by compliance.

The civil-criminal classification of contempt exists solely for determination of a contemnor's procedural rights and a court's sentencing options. Quite simply, a contemnor who will be sentenced to a determinate term of imprisonment or a fixed fine, which he is powerless to escape by purginghimself of his contempt, is entitled to the essential procedural safeguards that attend criminal proceedings generally. Second, a court is not permitted to impose a coercive sentence conditioned on the contemnor's performance of some act that is incapable of performance.

In re Martorano, 346 A.2d 22, 27-29 (Pa. 1975) (internal citations and footnotes omitted).

Here, the trial court sentenced Appellant to a determinate term of three to six months in jail, to punish Appellant for his willful failure to appear for trial on July 3, 2007. As such, there is no question that the trial court found Appellant guilty of, and sentenced Appellant for, criminal contempt. See id.

Further, at this point we note that the trial court found Appellant guilty of direct criminal contempt of court. We have explained:

[C]ontempts[, including criminal contempts,] are [] subdivided into direct and indirect contempts. Different procedural safeguards apply to direct and indirect criminal contempts. A charge of indirect criminal contempt consists of a claim that a violation of an Order or Decree of court occurred outside the presence of the court. Direct contempt involves conduct occurring in the presence of a court.

Commonwealth v. Moody, 46 A.3d 765, 772 (Pa. Super. 2012) (internal quotations and citations omitted), appeal granted, 79 A.3d 1093 (Pa. 2013).

As we explained, our courts have interpreted the phrase "in the presence of the court" in a relatively expansive fashion, so that the phrase extends beyond "those acts that the judge sees with his or her own eyes." Commonwealth v. Brown, 622 A.2d 946, 948 (Pa. Super. 1993). As summarized:

many prison sentences for direct contempt have been upheld although the act was not committed "in front of" the judge finding the contempt. See Commonwealth v. Crawford, 352 A.2d 52 (Pa. 1976) (contemnor stated he would not testify though he did not actually refuse to answer questions in open court); Commonwealth v. Shaw, 421 A.2d 1081 (Pa. Super. 1980) (defendant failed to return to court for afternoon session)[; Rosenberg Appeal, 142 A.2d 449 (Pa. Super. 1958) (holding that,] in proceedings before a grand jury, a witness' refusal to testify is considered as taking place in the presence of the court[)].

Brown, 622 A.2d at 948.

Further, as is pertinent to the current appeal, our Supreme...