Commonwealth v. Garrison

POMEROY, Justice,

concurring.

I concur in the decision of the Court that on this record appellant was not guilty of criminal contempt of the trial court. I cannot, however, agree with much that is said in the plurality’s prolix opinion, and deem it appropriate to give my reasons in this separate opinion.

*386 I.

At the outset, I emphatically reiterate my disagreement with Mr. Justice ROBERTS’ construction of our basic contempt statute. 1 See my dissenting opinion in In re Johnson, 467 Pa. 552, 561 , 359 A.2d 739 (1976) (POMEROY, J., dissenting, joined by JONES, C. J. and EAGEN, J.). I would simply add here that, in my view, reliance on Cammer v. United States, 350 U.S. 399 , 76 S.Ct. 456 , 100 L.Ed. 474 (1956), for the proposition that a lawyer is not to be considered an “officer of the court” within the meaning of subsection I of the Pennsylvania contempt statute, supra note 1, is quite misplaced. In Cammer the Supreme Court of the United States was presented with detailed legislative history of the federal contempt statute compelling the conclusion that lawyers were not “officers” of the federal courts within the meaning of that statute. 2 See 350 U.S. at 403 08, 76 S.Ct. 456 . There is no such Pennsylvania history indicating that our General Assembly had any intention to use the term “officer” in anything other than its commonly accepted meaning. That meaning, as a perusal of our cases clearly shows, see, e. g., In re Shigon, 462 Pa. 1 , 10 11, 329 A.2d 235 *387 (1974); In re Schofield, 362 Pa. 201 , 204 n. 1, 66 A.2d 675 , 677 n. 1 (1949), and cases cited therein, includes a lawyer appearing before a court of this state. 3 See also Act of April 14, 1834, P.L. 333, § 69, 17 P.S. § 1603 (1962) (re-enacted in Section 2522 of the Judicial Code, 42 Pa.C.S., with slight changes in wording), which requires an attorney, as part of his oath of office, to swear to act “with all good fidelity, as well to the court as to the client.”

It should also be noted that under the plurality’s construction of the Act of 1836, “what is sauce for the goose is sauce for the gander.” That is to say, if the statute cannot be used to punish and stop brazenly unethical conduct in open court by defense counsel, neither can it be so used with respect to prosecutorial misconduct. The consequence in many cases will be that the only remedy, should the trial end in conviction, will be to correct an unfair trial by reversing and remanding for a new trial. E. g., Commonwealth v. Joyner, 469 Pa. 333 , 365 A.2d 1233 (1976). Trial judges should not be so circumscribed, and trials should not be susceptible to such easy taint. See, e. g., Commonwealth v. Potter, 478 Pa. 251 , 267 & n. 8, 386 A.2d 918 , 925 & n. 8 (1978) (opinion in support of affirmance).

II.

I find particularly disturbing two other statements in the plurality opinion, notwithstanding that they are merely dicta. The first is the pronouncement that a court should “first consider less severe remedies such as civil contempt before imposing summary criminal contempt,” ante at 366, and that non-summary criminal contempt too is usually preferable to criminal contempt. Ante at 385. In civil contempt, of course, the contemnor “has the keys to the jail in his pocket” through his ability to purge himself of the contempt by complying with the court’s order. Can the coercive effect of that sanction have any usefulness when the contemptuous *388 conduct is over and done with, when the offensive words have already been uttered, and when the damage caused by noncompliance with ethical standards cannot be undone? And must a trial judge remain silent while a fair trial is being jeopardized by unprofessional conduct of lawyers, and put aside the imposition of sanctions until the trial is over, at which point the only remedy is a new trial? 4 To both questions the answer must surely be “no.” Furthermore, the suggestion that civil contempt is the preferable course is difficult if not impossible to reconcile with the views recently expressed by three members of this Court in In re November 1975 Special Investigating Grand Jury, 475 Pa. 123 , 379 A.2d 1313 (1977) (opinions in support of affirmance by ROBERTS, J. and POMEROY, J., both joined by O’BRIEN, J.). In situations where swift action is necessary to vindicate the court’s authority, see id. 475 Pa. at 128 -136, 379 A.2d at 1318-19 (opinion in support of affirmance of ROBERTS, J.), 475 Pa. at 136 -140, 379 A.2d at 1321 (opinion in support of affirmance of POMEROY, J.), the two remedies suggested in today’s plurality opinion — -civil contempt and non-summary criminal contempt — are well nigh useless. 5

The other observation in Mr. Justice ROBERTS’ opinion that prompts a response is the assertion that the second contempt conviction here at issue must be treated as having been imposed under subsection III of the Act of 1836, supra note 1, in order to avoid a violation of due process. Although I agree that the trial judge’s adjudication of contempt was ambiguous and that a fuller explanation would have been desirable, cl. Fed.R.Crim.P. 42(a), the plurality’s apparent insistence that summary criminal contempt cannot be imposed unless the court literally “reads the Riot Act” or *389 recites the Act of 1836 in open court, see ante at 372, seems to me to be quite unwarranted. It has been well said by the Supreme Court of the United States that appellate judges are not to “imprison the discretion of trial judges within rigid mechanical rules,” Offutt v. United States, 348 U.S. 11, 15 , 75 S.Ct. 11, 14 , 99 L.Ed. 11 (1954) (Frankfurter, J.), and that contempt of court is a most inappropriate area for broad generalizations. Mayberry v. Pennsylvania, 400 U.S. 455, 463-64 , 91 S.Ct. 499 , 27 L.Ed.2d 532 (1971) (Douglas, J.). And as we noted in Commonwealth v. Mayberry, 459 Pa. 91, 102 , 327 A.2d 86, 91 (1974) (citations and footnote omitted): “[N]o need exists to fit criminal contempt, a crime sui generis, into the mold of procedures for more commonplace offenses. This Court has in the past recognized that due process is a flexible concept and not one wed to fixed formalities.” I would leave any discussion of due process questions that this case might present for a time when the constitutional point is necessary to a decision.

III.

Addressing now the factual situation of the case before us, the appraisal of the lawyer’s conduct should, in my view, be undertaken in light of the factors set forth in my dissenting opinion in In re Johnson, supra:

“Unlike the lay person, the lawyer is duty bound to manifest an attitude of professional respect toward the court and its processes. His conduct in the courtroom can have a great impact on the extent to which the proceedings are perceived as fair and dignified by juror, defendant, witness, and spectator. He possesses the unique capability of denigrating the proceedings through eloquently clothed charges of impropriety. Unlike the lay person, he can obstruct justice without being overtly belligerent and without taking up a great deal of the court’s time. His carefully chosen words, softly spoken and briefly put though they may be, can submerge the dignity of *390 the proceedings in insinuations of improprieties. The impact of the lawyer’s action must, therefore, be assessed in the light of these considerations.” ’ 467 Pa. at 565 , 359 A.2d at 746 .

Viewing Mr. Sagel’s conduct under this approach, I agree that the two acts involved did not warrant a finding of contempt. In my judgment, the defense lawyer’s question to the court, “May my client be seated as well, or is he to be flagellated in front of the jury?”, while ill-chosen, and his short interruption of the substitute prosecutor’s cross-examination can only be viewed as de minimis. The record reveals a hotly contested trial marked by some friction between the trial judge and defense counsel, but it cannot be said that Mr. Sagel failed to show “an attitude of professional respect toward the court and its processes,” In re Johnson, supra, or that the conduct complained of constituted “insults of the trial judge, and tactics taken from street brawls and transported to the courtroom.” Mayberry v. Pennsylvania, supra, 400 U.S. at 462 , 91 S.Ct. at 504 . There simply was no need for the trial court to hold Mr. Sagel in contempt in order to vindicate its authority. 6

*391 Because I agree that the record reveals insufficient evidence for contempt convictions under any part of the Act of 1836, supra note 1, I concur in the result.

. Act of June 16, 1836, P.L. 784, § 23, 17 P.S. $ 2041 (¡962). The statute provides:

“The power of the several courts of this Commonwealth 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;

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

. 18 U.S.C. § 401 . That statute provides:

Ҥ 401. Power of court

“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 thereto 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.”

. As we have bee.i admonished by the legislature: “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(b) (Supp.1977).

. The availability of a new trial may in some cases be constitutionally suspect, for the Double Jeopardy Clause may stand in the way. See generally, Commonwealth v. Potter, 478 Pa. 251 , 386 A.2d 918 (1978) (opinion in support of affirmance).

. This is not to say, of course, that the use of the summary contempt power is the only means available to vindicate the court’s authority. In th» usual case reprimands at side bar or in open court can and should be used before the contempt power is resorted to.

. I agree with Mr. Justice ROBERTS that the trial judge is not to be commended for his practice of forbidding counsel to state on the record- his reasons for an objection to a question, an answer or a ruling. Ante at 379 n. 8. But cf. Pennsylvania v. Local 542, International U. Of Operating Engrs., 552 F.2d 498 (3d Cir. 1977). Worth repeating, however, is the admonition of Mr. Justice" Jackson in Sacher v. United States, 343 U.S. 1, 9 , 72 S.Ct. 451 , 96 L.Ed. 717 (1952), quoted with approval in In re Dellinger, 461 F.2d 389, 398 (7th Cir. 1972):

“Of course, it is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court’s considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel’s right to resist it or to insult the judge — his right is only respectfully to preserve his point for appeal.”

Moreover, neither Dellinger nor In re McConnell, 370 U.S. 230 , 82 S.Ct. 1288 , 8 L.Ed.2d 434 (1962), also relied upon in the plurality opinion, stand for the proposition that a lawyer is given “a grant of immunity for all conduct undertaken in good faith” on behalf of his client. 461 F.2d at 398 .