Com. v. Heard, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHAD HEARD :
:
Appellant : No. 1517 EDA 2019
Appeal from the Judgment of Sentence Entered March 19, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-MD-0000066-2019
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 15, 2020
Appellant, Rashad Heard, appeals from the judgment of sentence
entered on March 19, 2019, after he was held in contempt by the Honorable
Wendy L. Pew of the Philadelphia Municipal Court.1 After a careful review, we
affirm.
The relevant facts and procedural history are as follows: On March 19,
2019, Appellant, who was represented by counsel, proceeded to a preliminary
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* Former Justice specially assigned to the Superior Court.
1 A defendant can appeal from a Municipal Court contempt sentence directly
to this Court as of matter of right. See 42 Pa.C.S.A. § 1123(a.1) (“There shall
be a right to appeal to the Superior Court of a contempt citation issued by a
municipal court judge, but the appeal shall be limited to a review of the
record.”).
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hearing on two unrelated criminal cases.2 After the Commonwealth presented
its case and the defense rested, the Municipal Court held the two criminal
cases for court and began to set an arraignment date when Appellant
immediately stated, “No shit, bitch….Fuck this. Fuck you, bitch.” N.T.,
3/19/19, at 59.
The following relevant exchange then occurred:
THE COURT: Sir, you’re going to sit down. You’re going to
sit down.
[APPELLANT]: Fuck this, bitch.
THE COURT: You’re going to sit yourself right down.
[APPELLANT]: Eat a dick, bitch. I ain’t going to sit down for
nothing.
THE COURT: Do you want to watch yourself sit down?
Sheriff, he’s going to sit in that chair. And if the record can reflect
I have been cursed out by [Appellant].
[APPELLANT]: I don’t give a fuck.
THE COURT: And besides that, I saw the looks that the
Assistant DA in the room received. I am going to be finding you
in contempt. I guess we’re going to need to have a hearing on
this matter, unless you want to speak to him in the booth and we
can do the hearing in a couple of hours when I’m done with the
rest of the list.
[DEFENSE COUNSEL]: I guess I want a chance to talk to him
first, Your Honor.
THE COURT: Okay. So you can take the chance and talk to
him in the booth. We’re going to do the other hearings that we
have on our list today, and at the end of the day we’ll address this
issue.
[APPELLANT]: Who gives a fuck?
THE COURT: Just keep it up. Keep it up.
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2 Appellant’s two unrelated criminal matters are docketed in the lower court
at MC-51-CR-0032526-2018 and MC-51-CR-0032527-2018.
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[APPELLANT]: Dumb ass bitch.
(Whereupon, [Appellant] was removed from the courtroom
by the sheriffs.)
THE COURT: So, counsel, you can check back with us in a
couple of hours. If you want to speak to him in the booth, we’ll
address the other hearings on our list and then I’ll decide whether
or not to have the hearing today or at some other time. Okay?
[DEFENSE COUNSEL]: Thank you, Your Honor. I’ll step
back.
(Whereupon, a short recess was taken.)
***
THE COURT: And good afternoon. And we are back for I
guess we’ll call it Part 2 of Cases 3 and 4. As I was trying to
explain to your client that he’s being held for court [and I was
setting an arraignment date], I never actually got the words out
because he decided to have outbursts, calling me a whole host of
different names. He had exchanged dirty looks with the Assistant
DA and acted completely inappropriately and unacceptable to me
and to this entire criminal justice system. You don’t blurt things
out whatsoever.
***
[DEFENSE COUNSEL]: I just want to be heard very briefly,
Your Honor. I mean, obviously, it’s a very emotional time. It’s a
very stressful time. I did speak with him. He is remorseful. He
did apologize for the conduct.
Obviously, this is his first time. He didn’t know the rules of
a preliminary hearing. That is still something that’s not always—
it leaves people wanting; they don’t get to hear more of what they
want to hear about the story or present their side. That’s what
led to his emotional outburst.
I don’t think that—and I think you know, essentially that’s
what it was, a verbal outburst. He did then calm down. He did
cooperate. And he did eventually sit down.
I don’t think this should necessarily lead to a level that
would be a criminal conviction or require a sentencing. I think it
was really his emotions got the best of him at that moment.
THE COURT: Okay. Well, he didn’t really—I never saw him
cooperate. I never saw him remorseful. I never heard him
apologize. And the sheriff basically had to throw him into his seat.
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So I’m not really sure—unless we were at two different places, I
didn’t see anything that you’re suggesting he did.
Id. at 60-63.
The Municipal Court found Appellant guilty of direct criminal contempt
under 42 Pa.C.S.A. § 4132(2)3 and immediately sentenced Appellant to 5
months and 29 days in prison. On March 29, 2019, Appellant filed a timely,
counseled post-sentence motion.4 Thereafter, the Municipal Court denied the
post-sentence motion,5 and this counseled appeal followed on May 14, 2019.
All Pa.R.A.P. 1925(b) requirements have been met.
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3During the March 19, 2019, proceedings, the Municipal Court did not specify
under which subsection of 4132 it was convicting Appellant of contempt.
However, the contempt citation and sentencing order specify the court
convicted Appellant under Subsection 4132(2).
4 The tenth day following the imposition of sentence was Friday, March 29,
2019, and thus, Appellant had until this date to file a timely post-sentence
motion. See Pa.R.Crim.P. 720(a)(1). The post-sentence motion was not
docketed until Monday, April 1, 2019; however, the motion bears a time-
stamp indicating it was received and filed on Friday, March 29, 2019.
Accordingly, we deem the post-sentence motion to have been timely filed on
March 29, 2019. See generally Pa.R.Crim.P. 114(c)(2) (requiring docket
entries to contain, inter alia, “the date of receipt in the clerk’s office of the
order or court notice”); Pa.R.Crim.P. 576 (stating that when a document for
which filing is required “is received by the clerk of courts, the clerk shall stamp
it with the date of receipt and make a docket entry reflecting the date of
receipt, and promptly shall place the document in the criminal case file.”);
Pa.R.Crim.P. 113 (providing that docket entries in criminal cases must contain,
inter alia, all information required by Rules 114 and 576).
5 The Municipal Court’s order denying Appellant’s post-sentence motion was
docketed on April 2, 2019; however, for reasons not explained by the record,
the order is time-stamped as filed on May 14, 2019. Further, we note the
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On appeal, Appellant contends the evidence is insufficient to sustain his
conviction for direct criminal contempt under 42 Pa.C.S.A. § 4132(2).
Initially, we note that in Commonwealth v. Jackson, 532 A.2d 28(Pa.Super. 1987), this Court set forth the standard of review of a trial court’s
contempt order:
In considering an appeal from a contempt order, we place great
reliance on the discretion of the trial judge. Each court is the
exclusive judge of contempts against its process, and on appeal
its actions will be reversed only when a plain abuse of discretion
occurs. In cases of direct criminal contempt, that is, where the
contumacious act is committed in the presence of the court and
disrupts the administration of justice, an appellate court is
confined to an examination of the record to determine if the facts
support the trial court’s decision.
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certified docket entries contain no indication that the Municipal Court’s order
was served upon Appellant. “Pennsylvania Rule of Criminal Procedure
114(C)(2) provides that all orders and court notices must be docketed, and
the docket must contain the date the clerk received the order, the date of the
order, and the date and manner of service of the order or court notice.”
Commonwealth v. Davis, 867 A.2d 585, 586 (Pa.Super. 2005) (en banc).
“The comment to this Rule suggests that the notice and recording procedures
are mandatory and not modifiable.” Id. at 587. Additionally, the order
denying the post-sentence motions does not contain notice to Appellant of the
right to appeal or the time limits within which the appeal must be filed.
Pa.R.Crim.P. 720(B)(4)(a). This Court has held the failure to comply with Rule
720(B)(4)(a) constitutes a breakdown that excuses an appellant’s untimely
filing of a notice of appeal. See Commonwealth v. Patterson, 940 A.2d
493 (Pa.Super. 2007) (“[T]he trial court's failure to comply with Rule 720
constitutes a breakdown that excuses the untimely filing of Appellant’s notice
of appeal. While Appellant did receive proper notification of his post-sentence
and appellate rights at the time of sentencing, we will not deem partial
compliance with the rules sufficient.”). Accordingly, based on the
aforementioned, to the extent Appellant’s appeal was untimely filed, we shall
overlook the untimeliness.
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Id. at 31-32 (citations omitted).
Courts have the inherent power to summarily punish those before them
of criminal contempt of court, but this power is limited in this Commonwealth
by 42 Pa.C.S.A. § 4132, which provides, in relevant part, as follows:
§ 4132. Attachment and summary punishment for
contempts.
The power of the several courts of this Commonwealth to issue
attachments and to impose summary punishments for contempts
of court shall be restricted to the following cases:
***
(2) Disobedience or neglect by officers, parties, jurors or
witnesses of or to the lawful process of the court.
***
42 Pa.C.S.A. § 4132(2) (bold in original).
A finding of contempt under Subsection 4132(2) can be sustained only
if the following four elements are present:
(1) The court’s order or decree must be definite, clear, specific
and leave no doubt or uncertainty in the mind of the person to
whom it was addressed of the conduct prohibited;
(2) The contemnor must have had notice of the specific order or
decree.
(3) The act constituting the violation must have been volitional;
and
(4) The contemnor must have acted with wrongful intent.
Further, unless the evidence establishes an intentional
disobedience or an intentional neglect of the lawful process of the
court, no contempt has been proven. Moreover, a conviction for
criminal contempt requires proof beyond a reasonable doubt.
Commonwealth v. Kolansky, 800 A.2d 937, 940 (Pa.Super. 2002)
(quotation, quotation marks, and citations omitted).
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We conclude Appellant’s conviction for contempt under Subsection
4132(2) is supported by the record beyond a reasonable doubt. Kolansky,
supra.During Appellant’s preliminary hearing on unrelated criminal matters, as
the Municipal Court was holding the charges for court and attempting to set
an arraignment date, Appellant directed several vulgar statements to the
judge. In response, Judge Pew twice verbally ordered Appellant to sit in his
chair as his outburst was disrupting the court proceedings. See Estate of
Baehr, 596 A.2d 803 (Pa.Super. 1991) (affirming contempt when the
appellant refused to comply with the trial court’s verbal order). Judge Pew’s
verbal orders were clear, specific, and provided Appellant with notice of what
the judge was requiring him to do. See Kolansky, supra. Further, inasmuch
as Judge Pew directed her orders at Appellant in an effort to curb his vulgar
outburst and disruption of court proceedings, we conclude the orders
implicated the “lawful process of the court.” 42 Pa.C.S.A. § 4132(2).
Despite Judge Pew’s clear and specific orders, Appellant refused to sit
and, instead, directed several more vulgar statements to the judge. Judge
Pew noted for the record that Appellant did not sit until the sheriff forcibly
placed Appellant in the chair, and still, Appellant continued disrupting the
proceedings by directing vulgar language at the judge. Accordingly, the
record supports the conclusion that Appellant’s violation of the verbal orders
was volitional and done with wrongful intent. See id.; Commonwealth v.
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Collier, 510 A.2d 796, 797 (Pa.Super. 1986) (“A contemnor acts with
wrongful intent if he knows or should reasonably be aware that his conduct is
wrongful.”) (quotation marks and quotation omitted)).
Simply put, Appellant’s intentional disobedience of the Municipal Court’s
clear and specific orders is supported, beyond a reasonable doubt, by the
record, and thus, the court did not abuse its discretion in holding Appellant in
contempt under Subsection 4132(2). Accordingly, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2020
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