Commonwealth v. Mayberry , 435 Pa. 290 ( 1969 )

Opinion by

Me. Justice O’Brien,

This is an appeal from a conviction of contempt, arising out of appellant’s actions at his trial in Philadelphia County for perjury. Appellant, Richard O. J. Mayberry, is no stranger to this Court, his conviction for contempt in Allegheny County having recently been affirmed, sub nom Mayberry Appeal, 434 Pa. 478, 255 A. 2d 131 (1969). In the instant case, appellant was sentenced to a total of five years imprisonment for various contemptuous actions committed in the presence of the Court, including throwing a book at the trial judge and narrowly missing him. He also told the judge that he wished he would “break his neck instead of hurting his back.” He referred to the proceedings as a “kangaroo court.” The court below, pursuant to the Act of June 16, 1836, P. L. 784, §23, 17 P.S. §2041, found that this conduct was so offensive to the administration of justice that conviction and sentence were appropriate and justified. We agree.

Appellant makes numerous constitutional arguments, all of which boil down to the contention that the summary procedure used in the instant case, necessarily including the denial of a trial by jury, was unconstitutional. He relies chiefly upon the case of Bloom v. Illinois, 391 U. S. 194, 88 S. Ct. 1477 (1968), which held that the constitutional guarantees of jury trial extend to serious criminal contempts. However, in DeStefano v. Woods, 392 U. S. 631, 88 S. Ct. 2093 (1968), the Court held that Bloom need not be applied retroactively. The Court considered the very issues raised by appellant here: “The considerations are somewhat more evenly balanced with regard to the rule announced in Bloom v. State of Illinois. One ground for the Bloom result was the belief that contempt trials, which often occur before the very judge who was the object of the allegedly contemptuous behavior, would be more fairly tried if a jury determined guilt. Unlike the judge, the jurymen will not have witnessed or suffered the alleged contempt nor suggested prosecution for it. However, the tradition of non jury trials for contempts was more firmly established than the view that States could dispense with jury trial in normal criminal prosecutions, and reliance on the cases overturned by Bloom v. State of Illinois was therefore more justified. Also, the adverse effects on the administration of justice of invalidating all serious contempt convictions would likely be substantial. Thus, with regard to the Bloom decision, we also feel that' retroactive application is not warranted.”

Since appellant’s trial began long prior to the decision in Bloom on May 20, 1968, he would not be entitled to the benefits of that decision even if he could show that he otherwise came within its scope.

Since prior to Bloom, courts undoubtedly had the power to convict and sentence summarily for contempts committed in their presence, Levine Contempt Case, 372 Pa. 612, 95 A. 2d 222 (1953), appellant’s argument must fail. The judgment of sentence is affirmed.

Mr. Justice Cohen concurs in the result.