Respondents Brief — Codispoti v. Pennsylvania

FEB 26

IN THE

Supreme Court of the United States

No. 73-5615

October Term, 1973

DOMINICK CODISPOTI and HERBERT LANGNES,

Petitioners,

v.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

On Writ or CERTIORARI TO THE SUPREME CouRT

OF THE COMMONWEALTH OF PENNSYLVANIA.

BRIEF FOR RESPONDENT

ROBERT W. DUGGAN,

District Attorney of Allegheny County,

Attorney for Respondent.

Rosert L. EBERHARDT,

Assistant District Attorney,

Of Counsel,

401 Courthouse,

Pittsburgh, — 15219.

~ SATAYUA TUES, APPELLATE COURT PRINTERS coe

Spwaro ©. ative

BAROLD L.

t7Ol PARKLINE DR., PITTSBURGH, PA. 18227

412-001-7463

PAGE

Opimion Below ....... 2... ccc ccc cece ence eses cues 1

Pe ree rer 1

Constitutional Provisions and

Statutes Involved ... 2.2... 2... eee eee eee 2

Questions Presented ....... cece ccc cece ceeeees 3

Statement of the Case ..... 2... 0... eee cee 3

PPP TOTP TTTET TTT T TEST TT eee eee 6

I. The individual contempt sentences must be used

rather than the total effective sentence received

in order to determine the seriousness of the

contempts and thereby determine the right to

jury trial when the sentences for direct crimi-

nal contempt of court are imposed at the end of

2: | er ere ee ee ee er eee 6

TI. The strong possibility of a substantial term of

imprisonment does not require that an accused

be afforded the right to a jury trial .......... 14

RI oi eS open ne oe eyes gen y enews nde des 19

| TABLE OF CrTaTIONS.

Alaska v. Browder, 486 P.2d 925 (1971) ............ 14

Baldwin v. New York, 399 U.S. 66 (1970) . 7, 8, 14, 15, 16, 17

Bloom v. Illinois, 391 U.S. 194 (1968) ... 7,8, 14,15, 17, 18

Cheff v. Schnackenberg, 384 U.S. 373 (1966) ..... 7, 14,17

City of Monroe v. Wilhite, 225 La. 838, 233 So.2d 535,

cert. denied 400 U.S. 910 (1970) ................. 7

Commonwealth v. Bethea, 445 Pa. 161, 282 A.2d 246

CRT EY oc gone cea decaneveseen a ysadnensesdeees esas 16

Commonwealth v. Snyder, 448 Pa. 433, 275 A.2d 312

CREA noha ekeaeb asses deus case dia sundae 8, 14, 15, 17

Commonwealth v. Mayberry, 453 Pa. 619, 306 A.2d

Be CAOER) hod cane nae 64s 5b eSNG Sse en RN ERE Ss 1,6

Commonwealth v. Mayberry, 434 Pa. 478, 255 A.2d

BOE CIO) as eg os ons a ese pete se en esnees +

Il.

PAGE

Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d

Gs ) rr 17

DeStefano v. Woods, 392 U.S. 631 (1968) ......... 15, 16

Duncan v. Louisiana, 391 U.S. 145 (1968) .... 7,14, 15, 16

Frank v. United States, 395 U.S. 147 (1969) .... 7, 14,16

Illinois v. Allen, 397 U.S. 337, 344 (1970) .......... 13, 18

In re Chase, 468 F.2d 128 (7th Cir. 1972) .......... 9,13

Jenkins v. Delaware, 395 U.S. 213 (1969) .......... 15

Johnson v. New Jersey, 384 U.S. 719 (1966) ........ 15

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) . 5,7, 10,15

McGowan v. Mississippi, 258 So.2d 801, cert. denied,

409 U.S. 1006 (1972) ........... 0... cece eee, 14

Miranda v. Arizona, 384 U.S. 436 (1966) ........... 15

People v. Dargan, 26 N.Y.2d 100, 261 N.E. 2d 633, 313

N.Y.S. 2d 712 (1970) ......... cece cece 16

Roselle v. Oklahoma, 503 P.2d 1293 (1972) .......... 14

Sarich v. Havercamp, 203 N.W. 2d 260 (1972)........ 14

Scott v. District of Columbia, 122 A.2d 579, 581 (D.C.

RBI SIG) a xine icsanccnsscsieca¥isvessedsees 8

State v. Dostal, 28 Ohio St.2d 158, O77 N.E. 2d 211

(1971), cert. dented, 406 U.S. 831 (1972)....... 14, 15, 16

Seatoes ‘aan 76 N.M. 416, 419-420, 415 P.2d 543, 546 3

State v. Koscot Interplane Inc., 69 Mise.2d 421, 330

N.Y.S.2d 482 (Sup CR BERD Se ccnaeescaeeecsedens

State v. Owens, 54 N.J. 153, 254 A.2d 97 (1969) cert.

denied, 396 U.S. 1021 (1970) (Va cue eden es se4sescea 11

United States v. Barnett, 376 U.S. 681 (1964)........ 9

United States ex rel. Farmer v. Kosan, 440 F.2d 1256

2d Cir. 1971) 2.2... ccc cc ccc cece eee 16

United States v. Merrick, 459 F.2d 644 (4th Cir. 1972).. 8

United States v. Potvin, 481 F.2d 380 (10th Cir. 1973)..

United States v. Seale, 461 F.2d 345 (7th Cir. (1972) .. .6,8,

9, 10, 12, 13

Wiess v. Superior Court, 106 Ariz. 577, 579, 480 P.2d

Be OTE) x vedas dacssnese ss cwdstdcsesaseaesssas 8, 14

Yates v. United States, 355 U.S. 66 (1957) ........... 18

—

ITT.

PAGE

STaTUTEs.

Pennsylvania Contempt Statutes:

Act of 1836, June 16, P. L. 784, § 23, 24, 17, PS.

6 DOG, BOER 2. cnc cc ces cerssceseseseesseess 2, 3, 4, 16

United States Constitution:

Axtiote TTI, Beetiee 2 oo.nnn. scesccwcvcvedccsncess 2

i eg Sere Seer are ee 2,14

Amendment XTV, Section 1 ................000 000s 2

8 UBS. CURBS): xc sks 5 sns 50005558 60554 tos eonsss 1

OrHER AUTHORITIES.

Thompson and Starkman, Multiple Petty Contempts

(1978)... cee ecccccccccceeesscsscceeeteeeeeeens 12, 18

IN THE

Supreme Court of the United States

No. 73-5615

October Term, 1973

DOMINICK CODISPOTI and HERBERT LANGNES,

Petitioners,

Vv.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

Ox Writ or CERTIORARI TO THE SUPREME CouRT

OF THE COMMONWEALTH OF PENNSYLVANIA.

BRIEF FOR RESPONDENT

Opinion Below

The Opinion of the Supreme Court of Pennsylvania is

officially reported at 453 Pa. 619, 306 A.2d 294 (1973).

Jurisdiction

Respondent agrees that jurisdiction is vested in your

Honorable Court under 28 U.S.C. § 1257 (3).

2

Constitutional Provisions and Statutes Involved

1. Article ITI, Section 2, of the Constitution of the

United States:

“The trial of all crimes, except in cases of impeach-

ment shall be by jury. . .”

2. Amendment VI to the Constitution of the United

States:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and just trial by an

impartial jury...”

3. Amendment Fourteen to the Constitution of the

United States:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any

a within its jurisdiction the equal protection of

the laws.”

4. Pennsylvania Contempt Statutes—Act of 1836, June

16, P.L. 784, § 23, 24, 17 P.S. § 2041, 2042.

CLASSIFICATION OF PENAL CONTEMPTS.

The power of the several courts of this Common-

wealth to issue attachments and to inflict summary

punishments for contempts of court shall be re-

stricted 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, par-

ties, 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 ad-

ministration of justice. 1836, June 16, P.L. 784,

§ 23.

3

PUNISHMENT FOR CONTEMPT.

The punishment of imprisonment for contempt as

aforesaid shall extend only to such contempts as

shall be committed in open court, and all other con-

tempts shall be punished by fine only. 1836, June 16,

P. L. 784, § 24.

Questions Presented

1. Whether the total effective sentence received must be

used rather than the individual sentences in order to deter-

mine the seriousness of the contempts and thereby deter-

mine the right to jury trial when the sentences for direct

contempt of court are imposed at the end of a trial?

2. Whether the strong possibility of a substantial term

of imprisonment requires that an accused be afforded the

right to a jury trial?

Statement of the Case

A. The Circumstances of the Contempt Citations.

Petitioners, along with co-defendant Richard O. J. May-

berry, were indicted at No. 4672 of 1965 in the Criminal

Courts of Allegheny County, Pennsylvania, on counts of:

1) Holding Hostages in a Penal Institution, and 2) Prison

Breach. Pleas of not guilty were entered and trial com-

menced on November 10, 1966, before the Honorable Albert

A. Fiok and a jury. After waiving their respective rights

to counsel, petitioners acted as their own counsel although

court-appointed counsel advised them throughout the trial.

On December 9, 1966, the jury returned a verdict of guilty

as to both counts of the indictment as to all of the defend-

ants. At the conclusion of the trial, Judge Fiok also sen-

tenced petitioners and co-defendant Mayberry for several

acts of criminal contempt occurring at various times during

4

the twenty-two day trial. Petitioner Codispoti was sen-

tenced on seven separate citations to terms of one to two

years on each citation. Petitioner Langnes was sentenced

on six separate citations to terms of one to two years on

each citation.

B. The State Court Appeal.

Co-defendant Mayberry and petitioners appealed their

contempt convictions to the Supreme Court of Pennsyl-

vania. After oral argument on November 12, 1968, the

Supreme Court of Pennsylvania affirmed the sentence of

the lower court. Commonwealth v. Mayberry, 434 Pa. 478,

255 A.2d 131 (1969).

C. The Appeal to the United States Supreme Court.

On April 8, 1970, your Honorable Court granted co-

defendant Mayberry’s “pro se” Petition for Writ of Cer- .

tiorari. Mayberry contended: (1) that he was entitled toa

a nonsummary court trial or at least a hearing on the

sentence; (2) that his right to counsel had been violated;

(3) that under the circumstances he was entitled to have

his criminal contempt charges heard by a judge other than

the one who presided over his trial; (4) that the Penn-

sylvania Criminal Contempt Statute was unconstitutionally

vague; (5) that his sentence of 11 to 22 years constituted

cruel and unusual punishment in violation of the eighth

and fourteenth amendments.

On January 20, 1971, in an Opinion and Order by Justice

Douglas, this Court vacated the judgment of the lower court

and remanded the case for further proceedings. The

Opinion contained the following:

Our conclusion is that by reason of the Due Process

Clause of the Fourteenth Amendment a defendant in

criminal contempt proceedings should be given a pub-

——

5

lic trial before a judge other than the one reviled by

the contemnor. See Jn re Oliver, 333 U.S. 257, 68 S. Ct.

499, 92 L. Ed. 682. In the present case that require-

ment can be satisfied only if the judgment of contempt

is vacated so that on remand another judge, not bear-

ing the sting of these slanderous remarks and having

the impersonal authority of the law, sits in judgment

on the conduct of petitioner as shown by the record.

Vacated and remanded. Mayberry v. Pennsylvama,

400 U. S. 455, 466, 91 S. Ct. 499, 505 (1971).

Proceedings on Remand to the Court of Common

Pleas of Allegheny County, Pennsylvania.

In compliance with the Opinion of the United States

Supreme Court, trials were held before the Honorable

Robert Van der Voort, Presiding Judge, for each of the

petitioners individually on their respective contempt cita-

‘tions. Each of the petitioners chose to represent them-

selves but were advised by Fred E. Baxter, Jr., Esquire,

Assistant Public Defender. Each of the petitioners was

allowed to cross examine prosecution witnesses and present

testimony in their own defense.

Petitioner Codispoti’s trial began on December 16, 1971,

and ended on the following day. He was found guilty of

seven separate contempts and sentenced to five terms of

six months, one-term of three months, and one term of

twelve months, sentences to run consecutively. On January

5, 1972, the twelve-month sentence was reduced to six

months.

Petitioner Langnes’ trial began on December 17, 1971,

but was continued to December 20, 1971, after appellant

seized a microphone in front of him and hurled it at the

Court. He was found guilty of six separate contempts and

received sentences of five terms of six months and one term

of two months, to run consecutively.

a

: “al

E. The Second State Court Appeal.

On January 17, 1972, petitioners, along with co-defendant

Mayberry, again appealed their contempt convictions to

the Pennsylvania Supreme Court.

By an Order filed on July 2, 1973, the Pennsylvania

Supreme Court affirmed the lower court’s judgment of

sentence. Justice Manderino filed a dissenting opinion on

the basis of United States v. Seale, 461 F.2d 345 (7th Cir.

1972). Commonwealth v. Mayberry, 453 Pa. 619, 306 A.2d

294 (1973).

A Petition for Writ of Certiorari to your Honorable

Court was docketed on October 4, 1973. Respondent re-

ceived notice that the petition had been docketed on October

29, 1973, and thereafter filed an answer to the Petition.

On December 3, 1973, this Honorable Court granted the

Petition limited to the two questions discussed herein.

ARGUMENT

I. The individual contempt sentences must be used

rather than the total effective sentence received in order to

determine the seriousness of the contempts and thereby

determine the right to jury trial when the sentences for

direct criminal contempt of court are imposed at the end

of a trial.

Petitioners argue that they were entitled to a jury trial

on their contempt charges on the basis that the sentences

which they received on the different charges should be

aggregated so as to exceed six months. They contend that

to not aggregate the sentences is an unnecessary extension

of judicial contempt power and that their separate offenses

should be viewed as one continuing “serious offense.” With

this rationale, the Commonwealth must disagree.

7

A defendant’s right to a jury trial for a “serious offense”

was established by your Honorable Court in Duncan v.

Louisiana, 391 U.S. 145 (1968), and Bloom v. Illinois, 391

U.S. 194 (1968). The exact definition of what constituted

a serious offense was unclear until Baldwin v. New York,

399 U.S. 66 (1970), which held that, for purposes of the

right to trial by jury, a serious offense is one “where im-

prisonment for more than six months is authorized.” Where

there is no statutory authorization of a maximum sentence

for the crime, the Court held that the criterion that must be

examined to test for seriousness is the length of the sen-

tence which the lower court actually imposed. Bloom. v.

IMlinois, 391 U.S. at 211; Cheff v. Schnackenberg, 384 U.S.

373 (1966). Frank v. United States, 395 U.S. 147 (1969).

In the instant case, in response to the remand by your

Honorable Court,’ petitioners were tried and found guilty

of various contempt charges and ultimately sentenced to

six months or less on each charge. Petitioners now argue

that the sentence received for their separate adjudications

of contempt should be combined to artificially greate a

single offense. This “imaginary” offense would then re-

quire a jury trial. The Commonwealth submits that your

Honorable Court purposely chose the seriousness of the

crime as the controlling standard—in this case determined

hy the actual sentences imposed. Application of the fed-

eral standard was never meant to depend on the happen-

stance of the number of separate crimes that were, by

chence, combined in a single trial for purposes of expedi-

ency.?

1 See Mayberry v. Pennsylvania, supra.

2 See City of Monroe v. Wilhite, 225 La. 838, 233 So. 2d 535, cert.

denied 400 U.S. 910 (1970) where the defendant had been charged in

two separate affidavits with driving while intoxicated and speeding,

(Footnote continued on following page)

Prior to its decision in the instant case, the Pennsylvania

Supreme Court dealt with this specific issue in Common.

wealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971). There

the Pennsylvania court unanimously held that the defend-

ant was not entitled to a jury trial when two separate

criminal contempts were tried together at the conclusion

of defendant’s trial and the defendant was sentenced to

three months on the first citation and six months on the

second citation. As the Pennsylvania criminal contempt

statute does not provide a maximum term from which the

“seriousness” of the offense can be judged, the Pennsy)l-

vania Court in Snyder, following Bloom v. Illinois, supra,

looked to the actual sentence imposed and found that nei-

ther sentence exceeded the more than six month standard

established in Baldwin v. New York, supra, and therefore a

jury trial was not required.*

Petitioners argue that the present state of the law of

Pennsylvania which does not allow aggregation of sen-

tences to determine the seriousness of the offenses is an

(Footnote continued from preceding page)

both offenses arising out of the same act. Each offense carried a

maximum penalty of six months in jail and/or a $500.00 fine. The two

were consolidated for trial and the defendant raised the ques-

tion of his right to a jury trial on the basis of the possible

maximum of one year in jail and a $1,000.00 fine. The Supreme Court

of Louisiana held that aggregation was not ired in order to de-

termine the defendant’s right to a jury trial. is court denied the

defendant’s petition for certiorari. See also State v. James, 76 N.M.

416, 419-420, 415 P. 2d 543, 546 (1966) ; Scott v. District of Columbia,

122 A.2d 579, 581 (D.C. Ct. App. 1956) and United States v. Merrick,

459 F.2d 644 (4th Cir. 1972).

% Although Synder’s holding was rejected in United States v. Seale,

supra, relied upon by petitioners, other jurisdictions have by way of

dicta assumed a position on the same issue consistent with Snyder.

See e.g. Wiess v. Superior Court, 106 Ariz. 577, 579, 480 P.2d 3, 5

(1971), State v. Koscot Interplanetary Inc., 69 Misc. 2d 421, 330

N.Y.S. 2d 492 (Sup. Ct. 1972).

—

unnecessary extension of judicial contempt power. Peti-

tioners’ argument carries little weight in light of the fact

that, as recently as nine years ago, the crime of criminal

contempt was considered summary in nature and a person

charged with criminal contempt did not have a constitu-

tional right to a jury trial. United States v. Barnett, 376

U.S. 681 (1964), rehearing denied 377 U.S. 973. Further-

more, the courts historically have had extensive power to

sentence a defendant for contempt during trial. It is inac-

eurate and misleading to label the present state of the law

in Pennsylvania an “extension” of judicial contempt power.

The Court in United States v. Seale, supra, would seem

to make a distinction regarding the so-called aggregation

rule where the trial judge immediately cites and sentences

a contemptuous defendant as opposed to a post-trial hear-

ing on the contemptuous acts on the basis of a potential

for judicial abuse of the contempt power that is greater at

the post-trial stage.*

While the court in Seale contended that where a judge

reserves sentencing until the end of trial, the defendant

should have the right to a jury trial as a protection against

the arbitrary exercise of official power, the court also

recognized the necessity for a judge to he able to cite and

punish contempt immediately upon its occurrence with-

out regard for whether the aggregate of the sentence is im-

posed exceeds six months, This anomalous position was

‘Su uent to Seale Judge Cummings, in Jn re Chase, 468 F.2d

128 (?th Cir. 1972) spoke again to the distinction for aggregation of

sentences and the right to a jury trial purposes of immediate during

trial citation and sentencing for contempt and the post-trial procedure

in Seale and held non-aggregation to be the rule when immediate or

periodic citation and sentencing is carried out. However, Judge Cum-

mings stated also that immediate citing and sentencing “. . . may still

deny the contemnor a jury trial if it oppressively converts a single

continuing offense into a series of individual ones.” 481 F.2d at 135.

10

explained by the contention that here is a greater op.

portunity for abuse of discretion when the judge waits

until the end of trial to sentence for contempt than when

the judge sentences for contempt immediately upon its

occurrence. Furthermore, the Seale court made this con-

tention in apparent disregard of the safeguard required

by your Honorable Court that a trial judge must refer

sentencing to another judge when sentencing is reserved

until the end of trial. Mayberry v. Pennsylvania, supra.

The curious position assumed by the Seventh Circuit

ignores the fact that the greater opportunity for abuse of

discretion does not lie at the end of trial when tempers

have cooled. On the contrary, the greater opportunity for

abuse of discretion exists during the trial when the trial

judge is under stress. That this is the more accurate view

of the situation is impliedly recognized by a trial judge

when he wisely reserves sentencing until the end of the

trial so that he or another judge may review the record

insulated by time from the emotions generated in the

courtroom.

The foundation for the Seventh Cireuit Court’s decision

was laid in Mayberry v. Pennsylvania, supra, where your

Honorable Court determined that, where a judge reserves

sentencing until the end of trial, another judge “not bearing

the sting of these slanderous remarks and having thé im-

personal authority of law” should sit in judgment on the

record. The Mayberry decision was an attempt to honor

two important principles, to wit, that a judge should re-

tain the power of cite and sentence for contempt sua sponte

in order to preserve order in the courtroom and that if

the opportunity avails itself, it is desirable for another

less impassioned judge to sit in judgment and sentence

the defendants for their conduct. While this decision has

11

»

obvious merit, it must be limited in scope and cannot serve

as a basis judicial extensions such as proposed by the peti-

tioners. The Commonwealth submits that adopting the

rule of aggregation of sentences proposed by the peti-

tioners would be tantamount to forcing a judge to cite and

sentence a defendant immediately upon the occurrence of

a contemptuous action when passions are at their most

extreme. Such a rule would not be in the interests of justice.

The Commonwealth recognizes that a lower court might

escape the effect of the rule by trying each contempt cita-

tion separately. Such would be a wasteful procedure,

however, both in terms of the judge’s time and the expense

involved in separate trials.

Some courts would seem to distinguish aggregation of

sentences for a required jury trial where several “petty”

offenses arise out of the “same setting”.’ However, the

Commonwealth would submit that the instant case reveals

several separate and distinct acts of contempt on the part

of the petitioners occurring during a trial lasting twenty-

two days. An examination of the citations involved shows

that the several separate contemptuous acts took place on

various dates throughout the trial (App. 30-34). The Com-

monwealth is unable to characterize the contempts by the

petitioners in the instant ease as one continuing course

5 State v. Owens, 54 N.J. 153, 254 A.2d 97 (1969) cert. denied 396

U.S. 1021 (1970). In Owens, where several assault and battery

charges arose out of a single event (police officers responding to a

domestic disturbance) the New Jersey Court found a jury trial

“relevent.” In United States v. Potvin, 481 F.2d 380 (10th Cir. 1973)

the defendants were charged with two petty offenses arising out of

their act of building a lean-to and tepees on the lands of the United

States without a permit and cutting trees for that purpose. In

gating the possible sentence and determining whether the defendants

therefore had a right to a jury trial, the court based its decision on

the fact that the offenses arose “out of the same act, transaction, or

occurrence” 481 F.2d at 382.

a

12

of behavior as the Seventh Circuit was able to characterize

the conduct involved in Seale.*

Petitioners’ contention that contempt offenses arising

from the same trial must be treated as one continuous of-

fense is not persuasive. When a judge cites a defendant

during trial, he is making a finding of fact that the defend-

ant’s actions constitute contempt of court. The only re-

remaining determination to be made is the appropriate sen-

tence to be imposed for each offense. The mere fact that

a judge reserves sentencing until the end of trial should

not logically change the fact that each contempt is a separate

and distinct offense.

The Commonwealth would agree with those commen-

tators who have examined the decision in Seale and found

it faulty in that the basic premise upon which the aggrega-

tion rule is laid is inconsistent with the American concept

of the judiciary and right of appellate review.’ The Seale

aggregation rule rationale seems to imply a presumption

of abuse of the contempt power on the part of American

trial judges and a further inability on the part of appel-

late courts to discover and correct abuses of sentencing.*

The Commonwealth would assert that although a single

test for determining separability of offenses is impossible

due to the multitude of possible variations in conduct,

appellate courts are often called upon to review alleged

abuses of discretion and questions of factual separability

regarding contemptuous conduct is equally conducive to

appellate review.° |

6 461 F.2d at 354, n. 12.

™ Thompson and Starkman, Multiple Petty Contempts and the

Guarantee of Trial By Jury, 61 Geo. L.J. 621, 649-650 ( 1973).

® Id. at 650.

® Td. at 650.

a

18

Farther, the distinction drawn by the court in In re

Chase, supra, regarding possible transformation: of. a con-

tinuous act into a series of separate contempts will require

the very appellate review of separability of acts that the

court sought to eliminate in its own decision in United

States v. Seale, supra. Thus if the appellate courts are

presumed to be capable of examining a record to determine

whether the trial judge converted a single act into a series

‘of contempts by his actions during trial, they would seem

equally capable of examining post-trial proceedings.”

Also of note in the Seale rationale is the possibility of

incongruous results depending upon whether the contemnor

is attorney or client. The Commonwealth therefore sub-

mits that consistent results can only be obtained in con-

tempt cases by eliminating the aggregation rule altogether

in light of the strong need for a trial court to be able to

proceed immediately on direct criminal contempts in its

presence."' See Illinois v. Allen, 397 U.S. 337, 344 (1970).

For the above-stated reasons the Commonwealth would

submit that the aggregation rule as proposed by the peti-

tioner and the Court in United States v. Seale, supra, is

not constitutionally required and therefore the petitioners

were not denied due process of law when they were sen-

tenced on several distinct criminal contempts in a non-jury

post-trial proceeding.

1° Td. at 651.

™ Td. at 652.

14

II. The strong possibility of a substantial term of im.

prisonment does not require that an accused be afforded

the right to a jury trial.

Petitioner argues that Baldwin v. New York, supra is

dispositive of this issue. Baldwin addressed itself to re.

solving the dichotomy between “petty” and “serious”

offenses for purposes of the Sixth Amendment, right to

jury trial provision. This Court specifically concluded

“no offense can be deemed ‘petty’ for purposes of the right

to trial by jury where imprisonment for more than siz

months is authorized.”"* (Emphasis added) In ordinary

criminal prosecution, the severity of the penalty authorized

was the standard used to determine the “seriousness” of

the offense. Duncan v. Louisiana, supra; Frank v. United

States, supra. Thus, Baldwin served as a further refine-

ment to this troublesome problem.

The Commonwealth submits that Baldwin was not in-

tended to reach the situation wherein no statutory penalty

for an offense was proscribed. In this situation, the cri-

terion upon which the classification depended, remained

unchanged. Courts, including those of Pennsylvania, con-

tinued to look to the severity of a penalty actually im-

posed." Cheff v. Schnackenberg, supra; Bloom v. Illinois,

supra; Frank v. United States, supra. Thus, the Common-

wealth contends that Baldwin is distinguishable from the

instant facts and is not responsive to the issue now before

the Court.

12 399 U.S. at 69.

18 Weiss v. Superior Court, supra; State v. Dostal, 28 Ohio St. 2d

158, 277 N.E. 2d 211 (1971), cert. denied, 406 U.S. 831 (1972);

Roselle v. Oklahoma, 503 P.2d 1293 (1972) ; "McGowan v. Mississippi,

258 So. 2d 801, cert. denied, 409 U.S. 1006 (1972) ; Commonwealth v.

Snyder, supra; "Contra, Sarich v. Havercamp, 203 N. W. 2d 260 (1972) ;

Alaska v. Browder, 486 P.2d 925 (1971).

15

Indeed, there also appears to be some question as to the

applicability, if any, of Baldwin to the direct criminal con-

. tempt situation.”*

The Commonwealth further raises for your Honorable

Court’s consideration the question of whether Baldwin

should be applied retroactively to the instant case. The

Commonwealth relies upon the rationale of Jenkins v. Dela-

ware, 395 U.S. 213 (1969). There the petitioner was

originally tried on January 13, 1966. At trial, an in-

criminating statement of the petitioner was admitted into

evidence. While this case was on appeal, Johnson v. New

Jersey, 384 U.S. 719 (1966) and Miranda v. Arizona, 384

U.S. 486 (1966) were decided. The Delaware Supreme

Court reversed the conviction on various state grounds and

also determined that under Johnson, petitioner’s statement

which was obtained without advising him of his constitu-

tional rights, would be admissible at his retrial. The

rationale was that a retrial is not the “commencement”

of a case but is a mere “continuation” of the case originally

commenced. Your Honorable Court affirmed. In the in-

stant case, the original trial took place in December 1966

and the Supreme Court of Pennsylvania rejected petition-

er’s claim as to right to trial by jury on the basis of De-

Stefano v. Woods, 392, U.S..631 (1968) which held that

Duncan and Bloom are prospective only, 434 Pa. 478, 255

A.2d 131 (1969); in Mayberry v. Pennsylvania, supra, this

Court reversed on grounds unrelated to Baldwin and re-

manded so that “another judge, not bearing the sting of

these slanderous remarks and having the impersonal au-

thority of the law, sits in judgment on the conduct of peti-

tioner as shown by the record.” The Commonwealth con-

tends that the proceedings pursuant to the order were a

14 State v. Dostal, supra; Commonwealth v. Snyder, supra.

16

-“continuation” of the original case rather than an entirely

new, separate and distinct trial; the proceedings consti-

tuted a “resentencing” of the petitioner and not a new ad-

judication of guilt. With this view of non-retroactivity for

Baldwin," it would then be consistent with the holding in

DeStefano, supra.

Whether the courts may adjudicate criminal contempt

cases without a jury trial has been a recurring question.

The history surrounding this problem need not be set forth

herein. The Pennsylvania statute authorizing imprison-

ment for contempt does not provide a limitation on the

length of imprisonment which may be imposed. Act of

1836, June 16, P.L. 784 § 23, 24, 17 P.S. § 2041, 2042..° Ip

18 Courts confronted with this issue have found the decision to s0

affect the administration of justice to require non-retroactive applica-

tion. United States ex rel. Farmer v. Kosan, 440 F.2d 1256 (2d Gir.

1971) ; People v. Dargan, 26 N.Y. 2d 100, 261 N.E. 2d 633, 313

N.Y.S. 2d 712 (1970) ; State v. Dostal, supra. However, in Common-

wealth v. Bethea, 445 Pa. 161, 282 A.2d 246 (1971), the Pennsylvania

Supreme Court with two judges filing concurring and dissenting

opinions and one judge not participating, decided without explanation

that Baldwin was retroactive. The dissenting opinions echo the views

of the aforementioned cases. The Commonwealth views the majority

opinion as patently erroneous.

16 CLASSIFICATION OF PENAL CONTEMPTS.

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 respec-

tively ;

II. ‘To disobedience or neglect by officers, parties, jurors, or wit-

nesses 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. 1836, June

16, P.L. 784, § 23.

PUNISHMENT FOR CONTEMPT.

The punishment of imprisonment for contempt as aforesaid shall

extend only to such contempts as shall be committed in open court,

and all other contempts shall be punished by fine only. 1836, June 16,

P.L. 784, § 24. See Duncan v. Louisiana, supra, N. 35 at 162. Frank

v. United States, supra. .

—

17

this instance, the generally accepted test is to look to the

severity of penalty actually imposed and sentences in ex-

cess of six months may not be given without the imposition

of a jury trial or waiver thereof. Cheff, supra; Bloom,

supra. However, both of these cases involved indirect

criminal contempt and disputed issues of fact necessitated

extended hearings.’ The instant case presents the

classic form of direct criminal contempt. Nevertheless,

the Commonwealth urges that the principles of Cheff and

Bloom be applied to the instant case as has been done on

the State level.’"* Thus, though the statute in question is

open ended in terms of potential punishment, in a practical

sense, an accused cannot receive a sentence in excess of six

months without a jury trial. The Commonwealth concedes

that had the petitioner been given a sentence in excess of

six months, a jury trial would have been required. The

Commonwealth equates the phrase “substantial term of

imprisonment” to a period in excess of six months thereby

preserving the distinctions between “petty” and “serious”

offenses this Court made in Baldwin with respect to ordi-

nary crimes. If an accused faces a lengthy term of im-

prisonment, something in excess of six months, under the

statute in question, it is not because the statute lacks a

maximum proscribed sentence but because the trial judge

or appellate court upon review deems the eontumacious

conduct as serious. To interpose the requirement of a

jury trial simply because the statute is open ended as to

punishment would destroy the fundamental nature of a

1 Cheff failed to obey an order by an appellate court directing com-

pliance with a cease and desist order of the Federal Trade Commission :

Bloom was convicted on centempt for willfully petitioning to probate a

fraudulently prepared and executed will.

8 Commonwealth v. Snyder, supra ; Commonwealth v. Patterson, 452

‘Pa, 457, 308 A.2d 90, 93 n. 3 (1973).

a

18

contempt proceeding.’*® The contempt offense would take

on the character of an ordinary crime with its attendant

purpose of punishing past wrongful conduct. Contempt

must remain a tool to be used to maintain courtroom de

corum. Whether a trial judge cites a contemnor at the

time of the occurrence or waits until the end of trial must

be determined on a case-by-case basis. In the instant case,

it should be pointed out that the petitioner acted as his own

counsel and the trial judge may very well have concluded

that to have cited and sentenced as the contempts occurred

would have had the effect of prejudicing the case in chief.

On the facts of this case, the trial judge may not have had

any other alternative than cite for contempt at the conclu-

sion of the trial. Naturally, the benefits of Illinois »,

Allen, 397 U.S. 337 (1970) were not available.

Mr. Justice White, speaking for the court in Bloom, ex-

pressed considerable apprehension about the unbridled

power to punish summarily for contempt. The Common.

wealth submits that while these fears were viable prior to

Bloom, subsequent decisions have arrested them. JIlinois

v. Allen, supra, provides vital options for the trial judge

to employ during the course of trial. Mayberry provides

protection to defendants in cases of severe villification who

may be cited at the end of trial. Moreover, matters of

“discreteness” or abuse are properly reviewable before the

appellant courts. Yates v. United States, 355 U.S. 66

(1957) demonstrates that reviewing courts will not tol-

erate “caprice” in dealing with contempts. Thus, in the

19 See en and Starkman, Multiple Contempts and the

Guarantees of Trial by Jury, supra, at 631-635 for discussion of the

practical difficulties i nt in having a jury trial on direct criminal

contempt.

_

19

light of such safeguards, further limitation to the contempt

power is unnecessary and unwarranted.

For the foregoing reasons, the Commonwealth respect-

fully urges the Court to deny the relief requested.

Conclusion

WHEREFORE, for the above-stated reasons, respond-

ent respectfully requests that the relief requested be de-

nied.

Respectfully submitted,

ROBERT W. DUGGAN,

District Attorney of Allegheny County,

Attorney for Respondent.

Rosert L. EseRHARDT,

Assistant District Attorney, of Counsel.