Commonwealth v. Moody

46 A.3d 765

2012 PA Super 103

COMMONWEALTH of Pennsylvania, Appellee

v.Katrina MOODY, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Barbara Ivery, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Bernadette Archie, Appellant.

Superior Court of Pennsylvania.

Argued March 14, 2012.

Filed May 15, 2012.

Reargument Denied July 18, 2012.

Bradley Bridge, Public Defender, Philadelphia, for Moody, appellant.

Andrew D. Montroy, Public Defender, Philadelphia, for Ivery, appellant.

Joseph J. Russo, Philadelphia, for Archie, Appellant.

Karen B. Jordan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: GANTMAN, SHOGAN, and WECHT, J.J.

OPINION BY WECHT, J.:

Katrina Moody, Barbara Ivery, and Bernadette Archie [“Appellants”], appeal their May 6, 2011 judgments of sentence imposed after the Philadelphia Municipal Court found each of them in direct criminal contempt.¹ Because Appellants' due process rights were violated, we vacate the judgments of sentence and remand for proceedings consistent with this opinion.²

On April 6, 2011, during the preliminary hearing in a double homicide case, Appellant Archie stood up in the gallery and began screaming. This occurred as the court crier attempted to bring the homicide defendant's mother from the gallery to the bench to testify. Appellant Archie's act served to incite others seated in the gallery, including the other two Appellants, Moody and Ivery, who then attacked the homicide defendant's mother in the gallery. When the homicide defendant saw his mother being assaulted, he broke free from the deputy sheriff, began banging on the wall, and attempted to run into the gallery. Contempt Hearing Notes of Testimony [“N.T.”], 4/6/11, at 6. The deputy sheriff had to wrestle with the defendant in order to prevent him from reaching the gallery. N.T. at 6. The trial court halted the proceedings and removed Appellants from the courtroom to an adjoining room for three hours.

After order was restored, the trial court held what it believed to be a summary contempt hearing. The court crier was sworn in as a witness, but the municipal court judge was not. N.T. at 4–5. In that proceeding, the municipal court judge and the court crier made a record of the melee, as follows:

THE COURT: All right. For the record, what happened was—let me just put on the record what happened that I observed.

What happened that I observed was we tried to bring the defendant's mother in as a witness to testify as to whether or not she hired an attorney for the defendant. That's all.

When the court officer went out to get the mother, a fight broke out in the gallery involving numerous people in which the court officer got stuck in the middle and his arm was hit during the proceeding. He can tell us more about what happened.

Because of that, we had to shut down the court, call the sheriff. Almost every free sheriff in the building came running in here. We locked down the courtroom. The defendant went nuts and started banging on the wall because he saw his mother being assaulted. The door got locked. And the sheriff had to wrestle with the defendant while all this happened, all because of what happened in the gallery of the courtroom.

All right. Mr. Brandt, do you want to tell me what happened when you were out there?

* * *

THE WITNESS: Yes, Your Honor. I went out there to get the mother of the defendant. And when I went out there, the people were screaming. There's a lady in a tan suit jacket. She was sitting on the left side of the court or the right side from the bubble. She was holding a piece of paper up, screaming F you. She was saying things, but I wasn't really paying attention. I just told her to sit down.

Another staff member came out and told people to be quiet. The District Attorney was out there telling people to calm down.

As I approached the defendant's mom, someone on the second row—I cannot identify this person—threw a pocketbook, and it hit the lady in the side of the face.

THE COURT: Which lady?

THE WITNESS: The defendant's mom.

THE COURT: Okay.

THE WITNESS: And when it did that, this lady here in the orange sweater—between me and the District Attorney, she was running between us screaming. And we tried to hold her back. But as we were trying to hold her back, she got to the mother. And she reached for her hair and pulled her hair and then with a left hand threw and hit her on the left side of her head.

At which time there was [ sic ] other people coming towards us. I pushed her with my left hand and she went backwards. I believe another court staff member may have grabbed her from behind and pulled her away.

I pushed the woman who was being attacked to the right of that pillar. At which time this woman here can [ sic ] around the pillar.

THE COURT: Can you please describe—

THE WITNESS: I'm sorry. The woman in the white sweatshirt.

THE COURT: Thank you.

THE WITNESS: She came up from behind from the second row. She reached around to the defendant's mother. And all I remember seeing is her index finger going into the woman's eye and ripping her eye. Now, I don't know if she was trying to pull her or trying to rip her eye, but she was using a ripping motion at her eye. At which time they started to engage in a fight.

I tried to push the woman away.

Punches were being thrown back and forth. I was trying to push her away. And then the detective in the black suit—I think it was Pitts—he may have grabbed that woman from behind and pulled her off. We separated the two parties.

At the same time other things were going on. I don't know who the people were. Somebody was trying to hit somebody with a cane. And some other people were throwing punches. And I just can't identify more than those two people and the lady in the tan jacket, who I thought started a lot of the situation.

THE COURT: The lady in the tan jacket, do you see her here?

THE WITNESS: She is the lady back there, Your Honor, in the third—putting her hand up in the air, You Honor, right now. In fact, we even had communications outside the courtroom.

THE COURT: All right. Do you want to come in here, ma'am?

Sit down in the table between those two ladies.

All right. Go ahead. The lady in the tan was doing what?

THE WITNESS: Well, to be honest with you, I just forgot that part. Originally, when you were asking the defendant about his attorney status, he said something about a Mr. Sutton. And you said that if he doesn't have an attorney, Mr. Server, do you know about that, she jumped up with a picture in her hand and started screaming something out.

We can't really hear what she was screaming, but she was rising and she was starting, like, to screaming and get a little—just a little crazy I guess. And I got on the mic and said, everybody calm down, sit down. And she did sit back down.

And then you asked me to go get the mother. I went to go get the mother. When I went out to get the mother, I didn't know who the mother was. So I went to my paperwork and I said, Miss Warrick, are you here? Is the mother of Shaun Warrick here?

And she didn't answer right away. And that lady said, she's right here. And the lady said, I can speak for myself. And then she started screaming at her. And that's when the District Attorney was telling her to calm down, ma'am, and trying to go to her. And that's when the whole—that's when it started from A, B, and C.

THE COURT: Okay.

THE WITNESS: And then it went into the fight. She didn't throw any punches, not that I know of, or accost the lady. But she did excite the situation in the beginning.

THE COURT: All right.

THE WITNESS: That's about basically all I know. And then we locked the room down. And other than that, I can't remember much. I just focussed [ sic ] on those two things.

N.T. at 5–12.

At this hearing, Appellants were not represented by counsel, were not permitted to speak on their own behalves, and were not able to cross-examine the judge or crier who were the witnesses. N.T. at 14, 16. The trial court then required each Appellant to state her name on the record. N.T. at 12–13. An attorney who was not involved in the case interrupted the hearing and requested to meet with the judge at sidebar, a request which the judge allowed. N.T. at 12. The sidebar conference was not recorded. Thereafter, the municipal court judge told the Appellants that they had a Fifth Amendment right, instructed them not to testify, and stated that he would appoint an attorney for each Appellant. N.T. at 13. The trial court indicated that it was “making an initial finding of direct criminal contempt of court.” N.T. at 13–14. The judge stated that “before I make a final finding, I want you to have attorneys to be able to talk to you so you can present your case.” N.T. at 16. In accordance with this initial finding, the court set bail on each Appellant at $25,000, with only 10% required to be paid for release. Bail Order, 4/6/2011. Each Appellant posted bail that same day.

The counseled proceeding ensued approximately one week later, on April 13, 2011. It was, in effect, a sentencing hearing. The attorneys were allowed only to present mitigating evidence relevant to sentencing. Sentencing Hearing Notes of Testimony [“S.N.T.”], 4/13/11, at 8, 14. The sentencing hearing of Appellant Archie was stayed because her attorney was recovering from surgery. S.N.T., 4/13/11, at 5. Counsel for the two Appellants present specifically requested permission to present evidence on the contempt charge and to cross-examine witnesses. S.N.T., 4/13/11, at 10, 13. The trial court denied those requests. S.N.T., 4/13/11, at 13–14.

The trial court declined to allow counsel to provide any evidence regarding the events that transpired in court. The trial court proposed a flat, ten-day sentence as to the two Appellants present, but, at their request, stayed sentencing of all Appellants until May 6, 2011, the date of Appellant Archie's sentencing hearing. S.N.T. 4/13/11 at 23, 25–26.

On April 25, 2011, Appellant Moody filed a ...