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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID ALLEN,
Appellant No. 1306 EDA 2014
Appeal from the Judgment of Sentence of April 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-MD-0000527-2014
BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 19, 2015
Appellant, David Allen, appeals from the judgment of sentence entered
on April 9, 2014. We affirm Appellant’s judgment of sentence, but remand
for the correction of a clerical error.
The trial court has ably explained the underlying facts of this case:
On August 8, 2006, Appellant was arrested and charged
with two firearm[s] offenses.[1] [On April 20, 2007,
Appellant was held for court on the firearms offenses and
the case was transferred from the Philadelphia Municipal
Court to the Philadelphia County Court of Common Pleas.
The Philadelphia County Court of Common Pleas then issued
Appellant a Notice of Trial, commanding Appellant to attend
his criminal trial on July 3, 2007. Although Appellant signed
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1
The Commonwealth charged Appellant with: 1) firearms not to be carried
without a license and 2) carrying firearms on public streets or public
property in Philadelphia. 18 Pa.C.S.A. §§ 6106(a)(1) and 6108; see Docket
Sheet, CP-51-CR-0004857-2007, at 1-9.
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the Notice of Trial, Appellant did not appear for his July 3,
2007 trial]. . . .
In fact, Appellant had [failed to appear for trial on other
charges] on several prior occasions, necessitating five
bench warrants between 1991 and 1992. When Appellant
failed to appear [for trial on July 3, 2007, Appellant’s]
counsel was permitted to accept service on his behalf. A
bench warrant was issued at the next hearing on August 15,
2007, when [Appellant] again failed to appear.
Appellant was finally located seven years later and a
contempt hearing was held [before Philadelphia County
Court of Common Pleas Judge Michael E. Erdos] on April 9,
2014. [During the hearing, d]efense counsel claimed [that]
Appellant’s lengthy absence was in part because the
attorney who had accepted service for Appellant’s bench
warrant had used an incorrect address [for Appellant]. The
address the attorney had used, however, was the address
Appellant had given to the police and the one listed in the
court system’s records. When Appellant was asked why he
failed to appear, he stated that he had lost his home after
paying bail and that he “forgot about the whole situation.”
Though he had originally intended to turn himself in,
Appellant claimed he forgot to do so once his life had turned
around and his grandchildren were born.
Given Appellant’s history of failing to appear and the
extreme length of his absence, the [trial c]ourt found []
Appellant in contempt of court and sentenced him to three
to six months [in jail]. [However, w]hen drafting the
sentencing order, the court clerk listed the applicable
contempt statute as [42 Pa.C.S.A.] § 4137(a)(2), a
provision applying to [magisterial district] judges, instead
of [42 Pa.C.S.A.] § 4132(2). . . . The [trial c]ourt
mistakenly signed this order on April 9, 2014.
Trial Court Opinion, 7/31/14, at 1. (internal citations omitted).
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Appellant filed a timely notice of appeal to this Court. Appellant now
lists the following claims in his statement of questions involved on appeal: 2, 3
1. Was not the sentence of [three to six] months’
incarceration imposed by [the trial] court after finding
Appellant in contempt under 42 Pa.C.S.A. § 4137(a)(2)
illegal, as the maximum sentence established by that
statute is a fine of no more than $100[.00], see 42
Pa.C.S.A. § 4137(a)(2), (c); Pa.R.Crim.P. 140(B)(3)(a)?
2. Did not the [trial] court err in finding Appellant in
contempt under 42 Pa.C.S.A. § 4137 as the conviction
cannot be amended post-verdict or post-appeal to any other
type of contempt conviction as doing so would violate
Appellant’s right to due process, including the right to
notice, the opportunity to present a defense, and the
prohibition on double jeopardy under the United States and
the Pennsylvania Constitutions, and because there is no
jurisdiction to do so, see U.S. Const. Art. V, XIV; Pa. Const.
Art. 1 §§ 9, 10; 18 Pa.C.S.A. §§ 109, 110;
Commonwealth v. Campana, 304 A.2d 432 (Pa. 1973);
42 Pa.C.S.A. § 5505?
3. Did not the [trial] court, in finding Appellant in contempt
under 42 Pa.C.S.A. § 4137(a)(2), violate the requirements
of due process, including the right to notice and the
opportunity to prepare an adequate defense, under the
United States and Pennsylvania Constitutions and
Pa.R.Crim.P. 140(B)?
4. Did not the [trial] court err in finding Appellant in
contempt under 42 Pa.C.S.A. § 4137(a)(2) where it violated
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2
The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant complied and, in his Rule 1925(b) statement,
Appellant listed the claims that he currently raises on appeal.
3
For ease of discussion, we have re-ordered and re-numbered Appellant’s
claims on appeal.
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Appellant’s statutory right to an automatic stay of the
imposition of punishment and the right to de novo appeal
and Appellant was not advised of these rights, see 42
Pa.C.S.A. § 4137(d); Pa.R.Crim.P. 140-141?
5. Would not the [trial] court have erred even if it had
convicted Appellant of contempt under 42 Pa.C.S.A.
§ 4132(3), which it did not, where a contempt finding would
[have] violated the requirements of due process under the
United States and Pennsylvania Constitutions because
Appellant would have been found in contempt for failing to
appear for a court date of which he was not served with
notice?
6. Would not the [trial] court have erred even if it had
convicted Appellant of contempt under 42 Pa.C.S.A. § 4132,
which it did not, where the proceedings of the [trial] court
in the contempt trial failed to satisfy the requirements of
due process, including the right to notice, the opportunity to
prepare an adequate defense, and the right to the effective
assistance of counsel under the United States and
Pennsylvania Constitutions?
7. Was not the evidence insufficient for 42 Pa.C.S.A.
§ 4137(a)(2) and would not the [trial] court have erred
even had it convicted Appellant of contempt under 42
Pa.C.S.A. § 4132(2), which it did not, where the evidence
was insufficient to prove the elements of the offense beyond
a reasonable doubt because: (1) the order was not definite,
clear[,] and specific; (2) Appellant lacked notice of the
order; (3) the act was not volitional; and[,] (4) there was
no wrongful intent?
Appellant’s Brief at 5.4
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4
Appellant did not comply with Pennsylvania Rule of Appellate Procedure
2119(a), which requires that the argument section of the brief be “divided
into as many parts as there are questions to be argued.” Pa.R.A.P. 2119(a).
The Commonwealth argues that Appellant’s failure to comply with Rule
2119(a) requires that we dismiss the current appeal. Commonwealth’s Brief
at 6. We remind counsel for the Appellant of the importance of following the
Rules of Appellate Procedure in drafting briefs and caution counsel that
(Footnote Continued Next Page)
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At the outset, we note the distinction between civil and criminal
contempt. As our Supreme Court explained:
There is nothing inherent in a contemptuous act or refusal
to act which classifies that act as “criminal” or “civil.” The
distinction between criminal and civil contempt is rather a
distinction between two permissible judicial responses to
contumacious behavior. For example, it is clear that a
contemptuous refusal to testify before a grand jury may be
dealt with either [as] criminal contempt, civil contempt, or
both.
These judicial responses are classified according to the
dominant purpose of the court. If the dominant purpose is
to prospectively coerce the contemnor to comply with an
order of the court, the adjudication of contempt is civil. If,
however, the dominant purpose is to punish the contemnor
for disobedience of the court’s order or some other
contemptuous act, the adjudication of contempt is criminal.
Dominant purpose of coercion or punishment is expressed
in the sanction imposed. A civil adjudication of contempt
coerces with a conditional or indeterminate sentence of
which the contemnor may relieve himself by obeying the
court’s order, while a criminal adjudication of contempt
punishes with a certain term of imprisonment or a fine
which the contemnor is powerless to escape by compliance.
The civil-criminal classification of contempt exists solely for
determination of a contemnor’s procedural rights and a
court’s sentencing options. Quite simply, a contemnor who
will be sentenced to a determinate term of imprisonment or
a fixed fine, which he is powerless to escape by purging
_______________________
(Footnote Continued)
failure to adhere to the rules may result in waiver of issues and/or dismissal
of the appeal. However, we will not dismiss this appeal, as Appellant’s
failure to comply with Rule 2119(a) has not impeded our review of the case.
See Pa.R.A.P. 105(a) (“[the] rules [of appellate procedure] shall be liberally
construed to secure the just, speedy and inexpensive determination of every
matter to which they are applicable”).
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himself of his contempt, is entitled to the essential
procedural safeguards that attend criminal proceedings
generally. Second, a court is not permitted to impose a
coercive sentence conditioned on the contemnor’s
performance of some act that is incapable of performance.
In re Martorano, 346 A.2d 22, 27-29 (Pa. 1975) (internal citations and
footnotes omitted).
Here, the trial court sentenced Appellant to a determinate term of
three to six months in jail, to punish Appellant for his willful failure to appear
for trial on July 3, 2007. As such, there is no question that the trial court
found Appellant guilty of, and sentenced Appellant for, criminal contempt.
See id.
Further, at this point we note that the trial court found Appellant guilty
of direct criminal contempt of court. We have explained:
[C]ontempts[, including criminal contempts,] are []
subdivided into direct and indirect contempts. Different
procedural safeguards apply to direct and indirect criminal
contempts. A charge of indirect criminal contempt consists
of a claim that a violation of an Order or Decree of court
occurred outside the presence of the court. Direct contempt
involves conduct occurring in the presence of a court.
Commonwealth v. Moody, 46 A.3d 765, 772 (Pa. Super. 2012) (internal
quotations and citations omitted), appeal granted, 79 A.3d 1093 (Pa. 2013).
As we explained, our courts have interpreted the phrase “in the
presence of the court” in a relatively expansive fashion, so that the phrase
extends beyond “those acts that the judge sees with his or her own eyes.”
Commonwealth v. Brown, 622 A.2d 946, 948 (Pa. Super. 1993). As
summarized:
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many prison sentences for direct contempt have been
upheld although the act was not committed “in front of” the
judge finding the contempt. See Commonwealth v.
Crawford, 352 A.2d 52 (Pa. 1976) (contemnor stated he
would not testify though he did not actually refuse to
answer questions in open court); Commonwealth v.
Shaw, 421 A.2d 1081 (Pa. Super. 1980) (defendant failed
to return to court for afternoon session)[; Rosenberg
Appeal, 142 A.2d 449 (Pa. Super. 1958) (holding that,] in
proceedings before a grand jury, a witness’ refusal to testify
is considered as taking place in the presence of the court[)].
Brown, 622 A.2d at 948.
Further, as is pertinent to the current appeal, our Supreme Court has
held that two defendants were in direct criminal contempt of court, where
“the clerk of courts sent notices to the last known addresses of [the
defendants] . . . [,] notifying [them] of the dates for arraignment and the
commencement of trial [and] neither [defendant] appeared on the specified
dates.” Commonwealth v. Ferrara, 409 A.2d 407, 410-411 and 412 n.5
(Pa. 1979) (“[the defendants’] contention that they were not given ‘fair
notice of the charges against them’ is without merit since said argument is
based on the assumption that their conduct constituted indirect contempt.
In fact, [the defendants’] conduct constituted direct contempt”); see also
Commonwealth v. Edwards, 703 A.2d 1058, 1060 (Pa. Super. 1997)
(holding that the “failure to appear in court pursuant to previous court
process may [] be considered an act of direct criminal contempt when the
person is finally brought to court”); see also Commonwealth v. Marcone,
410 A.2d 759, 764 n.5 (Pa. 1980) (“there is authority for finding a deliberate
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and unexcused absence by counsel from a scheduled court appearance to be
direct contempt. The gravamen of this type of misconduct is the absence
which is witnessed by the court”).
In view of these decisions, it is apparent that the trial court found
Appellant in direct criminal contempt of court, as the trial court found that
Appellant willfully “fail[ed] to appear in court [for his July 3, 2007 trial,]
pursuant to” the Notice of Trial that was issued by the Philadelphia County
Court of Common Pleas and that was signed by Appellant. See Edwards,
703 A.2d at 1060; Trial Court Opinion, 7/31/14, at 5 (declaring that
Appellant was in contempt of court for failing to appear for trial “at 9:00
a.m. on July 3, 2007”). We will now consider the claims Appellant raises on
appeal.
Appellant first claims that his sentence of three to six months in jail
was illegal because the trial court found him in contempt under 42 Pa.C.S.A.
§ 4137 and “the maximum sentence established by [Section 4137(c)] is a
fine of no more than $100[.00].” Appellant’s Brief at 15. This claim fails
because the trial court found Appellant guilty of contempt under 42
Pa.C.S.A. § 4132(2) – and the trial court’s citation to 42 Pa.C.S.A.
§ 4137(a)(2) in the sentencing order constituted a mere clerical error.
Nevertheless, since the trial court accidentally cited to 42 Pa.C.S.A.
§ 4137(a)(2) in the sentencing order, we will remand the case so that the
record may be corrected.
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We note that “challenges to an illegal sentence can never be waived
and may be raised sua sponte by this Court.” Commonwealth v. Tanner,
61 A.3d 1043, 1046 (Pa. Super. 2013) (internal quotations and citations
omitted). “Issues relating to the legality of a sentence are reviewed de
novo, and our scope of review is plenary.” Commonwealth v. McKown,
79 A.3d 678, 691 (Pa. Super. 2013).
As our Supreme Court held, “[t]he power to punish for contempt,
including the power to inflict summary punishment, is not derived by statute
but rather is a right inherent in courts and is incidental to the grant of
judicial power under Article 5 of our Constitution.” Marcone, 410 A.2d at
763; see also Commonwealth v. McMullen, 961 A.2d 842, 849 (Pa.
2008) (“[c]ontempt of court is unlike other substantive crimes. The Crimes
Code abolished common law crimes, 18 Pa.C.S.A. § 107(b), but also
provided in its preliminary provisions that ‘[t]his section does not affect the
power of a court to declare forfeitures or to punish for contempt or to
employ any sanction authorized by law for the enforcement of an order’”);
see also Ex parte Robinson, 86 U.S. 505, 510 (U.S. 1873) (“[t]he power
to punish for contempts is inherent in all courts; its existence is essential to
the preservation of order in judicial proceedings, and to the enforcement of
the judgments, orders, and writs of the courts, and consequently to the due
administration of justice”).
Notwithstanding this inherent power, our legislature has sought to
define the crime of contempt and regulate the punishment for its
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commission. We quote the relevant portions of the statutes that are
implicated in this case: 42 Pa.C.S.A. §§ 4132, 4133, and 4137.
Section 4132 provides the statutory authority for “the several courts of this
Commonwealth” to impose summary punishment for contempts. The
statute declares:
§ 4132. Attachment and summary punishments 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:
(1) The official misconduct of the officers of such courts
respectively.
(2) Disobedience or neglect by officers, parties, jurors or
witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of
the court, thereby obstructing the administration of
justice.
42 Pa.C.S.A. § 4132.
Section 4133 then declares:
§ 4133. Commitment or fine for contempt
Except as otherwise provided by statute, the punishment of
commitment for contempt provided in section 4132 (relating
to attachment and summary punishment for contempts)
shall extend only to contempts committed in open court. All
other contempts shall be punished by fine only.
42 Pa.C.S.A. § 4133.
Section 4137 is a separate contempt statute, which specifically applies
to magisterial district judges. In relevant part, section 4137 declares:
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§ 4137. Contempt powers of magisterial district
judges
(a) General rule.--A magisterial district judge shall have
the power to issue attachments and impose summary
punishments for criminal contempts of a magisterial district
judge court in the following cases:
(1) Misbehavior of any person in the presence of the
court, thereby obstructing the administration of justice.
(2) Failure of a person to obey lawful process in the
nature of a subpoena issued by a magisterial district
judge.
(3) Failure to comply with an order of a magisterial
district judge directing a defendant in a criminal
proceeding to compensate the victim of the criminal
conduct for the damage or injury sustained by the
victim.
(4) Failure to comply with an order of a magisterial
district judge directing a defendant in a criminal
proceeding to pay fines and costs in accordance with an
installment payment order.
(5) Violation of an order issued pursuant to 23 Pa.C.S.A.
§ 6110 (relating to emergency relief by minor judiciary).
...
(c) Punishment.--Punishment for contempt specified in
subsection (a)(1) or (3) may be a fine of not more than
$100 or imprisonment for not more than 30 days, or both.
Punishment for contempt specified in subsection (a)(2) shall
be a fine of not more than $100. Failure to pay within a
reasonable time could result in imprisonment for not more
than ten days. Punishment for contempt specified in
subsection (a)(5) shall be in accordance with that specified
in 23 Pa.C.S.A. § 6144(b) (relating to contempt for violation
of order or agreement). Punishment for contempt in
subsection (a)(4) would be imprisonment for not more than
90 days.
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(d) Procedure.--A magisterial district judge shall have the
power to issue an attachment by means of a warrant and to
conduct a hearing prior to the imposition of punishment for
contempt. Any punishment imposed by a magisterial
district judge for contempt shall be automatically stayed for
a period of ten days from the date of imposition of the
punishment during which time an appeal of the action of the
magisterial district judge may be filed with the court of
common pleas of the judicial district. The stay shall remain
in effect pending the disposition of an appeal. Upon the
filing of the appeal, the court of common pleas shall hear
the matter de novo. On appeal, the accused shall have the
right to be notified of the accusation and shall have a
reasonable time to make a defense. The defendant shall
not have a right to a jury trial on appeal. . . .
42 Pa.C.S.A. § 4137.
In the case at bar, the Philadelphia County Court of Common Pleas 5
convened a hearing and found Appellant in direct criminal contempt because
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5
Although the case received a municipal court docket number and various
orders reflect that the case was adjudicated in the municipal court, there is
no doubt that the contempt hearing occurred in the Philadelphia County
Court of Common Pleas, before Philadelphia County Court of Common Pleas
Judge Michael E. Erdos. See, e.g., N.T. Contempt Hearing, 4/9/14, at 1
(declaring that the contempt hearing was “In the Court of Common Pleas
First Judicial District of Pennsylvania Criminal Trial Division”). Indeed, in
Commonwealth v. Kolansky, 800 A.2d 937 (Pa. Super. 2002), this Court
encountered a similar procedural posture and we held that – although the
contempt case was filed on the municipal court docket – the contempt
hearing, in fact, occurred before the Philadelphia County Court of Common
Pleas and we had jurisdiction over the appeal pursuant to 42 Pa.C.S.A.
§ 742, which grants this Court jurisdiction over “appeals from final orders of
the courts of common pleas.” 42 Pa.C.S.A. § 742. Specifically, in
Kolansky, we explained:
We note that although Appellant’s sentence was filed at
Philadelphia Municipal Court No. 01-05-1198, [it] was
entered by a Court of Common Pleas Judge as part of a
(Footnote Continued Next Page)
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Appellant willfully failed to appear for his July 3, 2007 criminal trial, as
directed by the Philadelphia County Court of Common Pleas. After
considering the plain terms of the above statutes, it is evident that the trial
court found Appellant in contempt of court under 42 Pa.C.S.A. § 4132(2), as
Appellant’s actions constituted a knowing and willful “disobedience . . . to
the lawful process of the court” of common pleas. 42 Pa.C.S.A. § 4132(2);
see also Trial Court Opinion, 7/31/14, at 10 (“Appellant was convicted
under § 4132(2)”).6 However, after the trial judge found Appellant guilty of
_______________________
(Footnote Continued)
proceeding incident to a criminal case in the Court of
Common Pleas of Philadelphia County. As this Order was
entered by a Court of Common Pleas judge, we will address
the claims set forth in Appellant’s appeal. See 42 Pa.C.S.A.
§ 742.
Kolansky, 800 A.2d at 938. Pursuant to Kolansky, we hold in the case at
bar that, even though Appellant’s contempt case was docketed in the
municipal court, “Appellant’s sentence . . . was entered by a Court of
Common Pleas Judge as part of a proceeding incident to a criminal case in
the Court of Common Pleas of Philadelphia County” and we have jurisdiction
over the appeal, as it is a “final order[ from] the court[] of common pleas.”
Kolansky, 800 A.2d at 938; 42 Pa.C.S.A. § 742.
6
The trial court also declared that it found Appellant guilty of contempt
pursuant to 42 Pa.C.S.A. § 4132(3). Section 4132(3) provides that the
courts of the Commonwealth have the power to “impose summary
punishments for contempts of court” in cases where there is “[t]he
misbehavior of any person in the presence of the court, thereby obstructing
the administration of justice.” 42 Pa.C.S.A. § 4132(3). However, since we
conclude that the trial court properly found Appellant guilty of contempt
under Section 4132(2), we need not analyze whether Appellant was also
guilty of contempt under Section 4132(3).
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criminal contempt and sentenced Appellant (in open court) to a term of
three to six months in jail, the trial judge accidentally signed a sentencing
order, which declared that Appellant had been found in contempt under 42
Pa.C.S.A. § 4137(a)(2).
Obviously, since Section 4137(a)(2) applies only to magisterial district
judges – and since the trial judge was sitting as a judge of the court of
common pleas at all relevant times in Appellant’s case – the sentencing
order was patently incorrect. Nevertheless, on appeal, Appellant claims that
the trial court was bound by the sentencing order and, since the sentencing
order declares that Appellant was found guilty of contempt under Section
4137(a)(2), “the maximum sentence [Appellant could have been sentenced
to under Section 4137(c) was] a fine of no more than $100[.00].” This
claim fails.
“A trial court has the inherent, common-law authority to correct ‘clear
clerical errors’ in its orders.” Commonwealth v. Thompson, 106 A.3d
742, 766 (Pa. Super. 2014) (internal corrections omitted), quoting
Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa. Super. 2011) (en banc),
affirmed by, 80 A.3d 1219 (Pa. 2013). “This authority exists even after the
30-day time limitation for the modification of orders expires.” Thompson,
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106 A.3d at 766; see 42 Pa.C.S.A. § 5505.7 As our Supreme Court
explained:
[The Pennsylvania Supreme Court has] set a high bar for
differentiating between errors that may be corrected under
the inherent powers of trial courts, and those that may not,
describing correctible errors as those determined to be
“patent and obvious mistakes.” The term “clerical error”
has been long used by our courts to describe an omission or
a statement in the record or an order shown to be
inconsistent with what in fact occurred in a case, and, thus,
subject to repair. See, e.g., Commonwealth v. Silcox, 29
A. 105, 106 (Pa. 1894) (upholding the trial court’s direction
to correct a “clerical” omission and amend the record to
state that the defendant was present at every stage of the
proceedings); Commonwealth v. Liscinsky, 171 A.2d
560, 561 (Pa. Super. 1961) (explaining that the sentencing
order contained a “clerical” error subject to correction, as it
did not reflect that the trial court specifically stated at
sentencing that the sentence it imposed was effective on
expiration of defendant’s federal sentence);
Commonwealth v. Mount, 93 A.2d 887, 888 (Pa. Super.
1953) (“Clerical errors” or inaccuracies in docket entries [or
orders] may be corrected by the trial court so that they
conform to the facts.”).
Commonwealth v. Borrin, 80 A.3d 1219, 1227-1228 (Pa. 2013).
In Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007), our Supreme
Court expounded upon and defined the “limited class of cases amenable to
the exercise by a trial court of the inherent power to correct patent errors
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7
42 Pa.C.S.A. § 5505 declares: “[e]xcept as otherwise provided or
prescribed by law, a court upon notice to the parties may modify or rescind
any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been
taken or allowed.” 42 Pa.C.S.A. § 5505.
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despite the absence of traditional jurisdiction” – which is a class of cases
that is confined to those involving “obvious and patent mistakes.”
Commonwealth v. Holmes, 933 A.2d 57, 65-67 (Pa. 2007).
In Holmes, our Supreme Court considered two companion cases
where the trial courts “attempt[ed] to exercise their inherent power to
correct orders by vacating illegal sentences despite the expiration of the
modification period provided by 42 Pa.C.S.A. § 5505.” Id. at 58. The first
of the two Holmes cases dealt with a parolee named Christopher Holmes.
In Mr. Holmes’ case, the trial court revoked Mr. Holmes’ parole. Yet, instead
of recommitting Mr. Holmes to serve the balance of his sentence in prison –
as would have been proper for a parole revocation – the trial court
resentenced Mr. Holmes as if it had revoked Mr. Holmes’ probation. Id. at
59. Since Mr. Holmes did not have a probationary term that could have
been revoked, the trial court’s sentence was patently illegal. Nevertheless,
Mr. Holmes did not appeal his sentence. Id. at 59 and 62 n.12.
Almost one year after the trial court entered its judgment of sentence,
the trial court realized that it imposed an illegal sentence and sua sponte
vacated Mr. Holmes’ sentence. Id. at 59-60. The Commonwealth appealed
the trial court’s order and claimed that the court did not have jurisdiction to
correct its earlier sentence because the 30-day time-period for modifying an
order – as set forth in 42 Pa.C.S.A. § 5505 – had expired. Id. at 60.
The companion case in Holmes concerned a parolee named Rufus
Whitfield. In Mr. Whitfield’s case, the trial court erroneously believed that
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Mr. Whitfield was on probation. Id. at 63. Following a revocation
proceeding, the trial court entered an order declaring that it was revoking
Mr. Whitfield’s “probation” and resentencing Mr. Whitfield to a new minimum
and maximum term of imprisonment. Id. Although it was not apparent on
the face of the order, the new sentence was illegal because Mr. Whitfield had
never received a sentence of probation for his underlying convictions.
Instead, Mr. Whitfield was on parole. Id.
Mr. Whitfield filed a timely notice of appeal to this Court. While Mr.
Whitfield’s appeal was pending, the trial court realized its mistake and sua
sponte entered an order vacating Mr. Whitfield’s sentence. The
Commonwealth then filed an appeal from the latter order and claimed that
the trial court did not have jurisdiction to vacate its sentence during the
pendency of Mr. Whitfield’s appeal to the Superior Court. Id.
In analyzing the two cases, the Supreme Court acknowledged that the
two trial courts lacked “traditional jurisdiction” over their respective cases.
Id. at 65. As the Supreme Court explained, this lack of “traditional
jurisdiction” was grounded in the language of 42 Pa.C.S.A. § 5505 and the
fact that “Section 5505 . . . recognizes the removal of jurisdiction [from the
trial court] upon appeal as in [Mr.] Whitfield’s case . . . and the removal of
jurisdiction [from the trial court] upon the end of the term of court or the
statutory [30]-day expansion of that time, as in [Mr. Holmes’] case.” Id.
Nevertheless, the Holmes Court held that “the limits of jurisdiction
enshrined in Section 5505 do not impinge [upon the] time-honored inherent
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power of courts” to correct obvious and patent errors in their orders. Id.
The Supreme Court then held that both Mr. Holmes’ and Mr. Whitfield’s
cases involved such “obvious and patent errors” – and that the trial courts
acted properly in correcting the obvious errors in their orders. Id.
In Mr. Holmes’ case, our Supreme Court held that the obviousness of
the illegality was apparent on the face of the sentencing order. Id. at 66.
This was because the order declared “parole is hereby revoked” but then
ordered that Mr. Holmes was to be resentenced to a new minimum and
maximum term of imprisonment. Our Supreme Court held that such a
sentence was illegal on its face, as “a parole violator cannot be sentenced to
a new sentence but instead can only be recommitted to the remainder of the
original sentence.” Id.
In Mr. Whitfield’s case, the Supreme Court held that – although “the
mistake [was] not apparent [] on the face of the order itself” – the error was
still “obvious and patent.” Id. With respect to Mr. Whitfield, the original
order actually declared that the trial court was revoking Mr. Whitfield’s
probation and the order then resentenced Mr. Whitfield to a new term of
imprisonment – as would have been proper for a probation revocation. Id.
However, Mr. Whitfield had never been sentenced to a probationary term –
rather, Mr. Whitfield was on parole. Thus, the error was not apparent on the
face of the order. Nevertheless, our Supreme Court still held that the error
was “obvious and patent” as “one need only look to the Quarter Session
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notes in the record to see” that Mr. Whitfield was “sentenced for violating a
probationary term that did not exist.” Id. at 66 and n.18.
Moreover, and supporting its conclusion in Mr. Whitfield’s case, our
Supreme Court cited to its earlier opinion in Commonwealth v. Klein, 781
A.2d 1133 (Pa. 2001). In Klein, the Supreme Court held that the “inherent
power” of trial courts to correct patent and obvious errors was not limited to
“those errors evident on the face of the order, but rather [extended to] a
trial court’s correction of a ‘patent defect or mistake [that was only made
apparent by viewing] the record.’” Holmes, 933 A.2d at 66 (emphasis in
original), quoting Klein, 781 A.2d at 1135. As summarized by the Holmes
Court:
In Klein, the trial court sentenced the defendant and
credited him with thirty-three days of time served on June
23, 1999. On June 25, 1999, after the prison officials
alerted the court to the fact that the defendant had only
served one day, the trial court issued an order sua sponte
directing the Defendant to reappear for re-sentencing on
June 30, 1999. Prior to the June 30 re-sentencing, the
defendant filed a notice of appeal of the June 23 sentencing
order, thus terminating the trial court’s jurisdiction. The
trial court, on June 30, rejected the defendant’s claim that
the court did not have jurisdiction, and amended the order
to indicate only one day of time served. [The Klein Court]
on review found the trial court’s exercise of jurisdiction
appropriate . . . , even though the error was not obvious on
the face of the order but emerged only in light of
information provided by a third party.
Holmes, 933 A.2d at 66.
Thus, in Holmes, the Supreme Court held that – as to both Mr.
Holmes and Mr. Whitfield – the trial courts possessed the inherent power to
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correct the “obvious and patent errors” in their original orders, even absent
“traditional jurisdiction” over their cases. Id. The Holmes Court, however,
cautioned:
Although [Messrs. Holmes and Whitfield] warrant relief
under the inherent power of courts to correct patent errors,
we must also emphasize the limits of this power. This
exception to the general rule of Section 5505 cannot expand
to swallow the rule. In applying the exception to the cases
at bar, we note that it is the obviousness of the illegality,
rather than the illegality itself, that triggers the court’s
inherent power. Not all illegal sentences will be amenable
to correction as patent errors. Moreover, the inherent
power to correct errors does not extend to reconsideration
of a court’s exercise of sentencing discretion. A court may
not vacate a sentencing order merely because it later
considers a sentence too harsh or too lenient. The cases at
bar are not cases where a court reconsidered the application
of its sentencing discretion or its interpretation of a nuanced
or ambiguous statutory provision. These cases involve clear
errors in the imposition of sentences that were incompatible
with the record, as in [Mr. Whitfield’s case], or black letter
law, as in [Mr. Holmes’ case]. As we have in the past, we
emphasize that this is a limited judicial power.
Id. at 66-67.
Turning to the case at bar, we agree with the trial court that its
citation to 42 Pa.C.S.A. § 4137(a)(2) in the sentencing order constituted a
“patent defect or mistake [that was made apparent by viewing] the record.”
As such, the trial court possesses the inherent power to correct this order,
“despite the expiration of the modification period provided by 42 Pa.C.S.A.
§ 5505.” Holmes, 933 A.2d at 66.
In this case, there is no question that, at all relevant times, the trial
court, the Commonwealth, and Appellant were well aware of: the order that
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Appellant was accused of violating; the forum within which Appellant was
being tried for contempt; and, the particular type of contempt that Appellant
was accused of committing. Specifically, at all relevant times, the trial
court, the Commonwealth, and Appellant knew: that Appellant was accused
of willfully failing to appear in the Philadelphia County Court of Common
Pleas for his July 3, 2007 trial, pursuant to the Notice of Trial that was
issued by the Philadelphia County Court of Common Pleas and that was
signed by Appellant; that Appellant was being tried for contempt before
Philadelphia County Court of Common Pleas Judge Michael E. Erdos, in “the
Court of Common Pleas First Judicial District of Pennsylvania Criminal Trial
Division;” and, that – since Appellant was being tried for contempt in the
Philadelphia County Court of Common Pleas, for violating a trial court order
to appear for trial in the Philadelphia County Court of Common Pleas –
Appellant stood accused of direct criminal contempt of court under 42
Pa.C.S.A. § 4132(2). There is also no question that, when the trial court
found Appellant guilty of contempt and sentenced Appellant, in open court,
to a term of three to six months in jail, the trial court found Appellant guilty
of – and sentenced Appellant for – direct criminal contempt of court under
42 Pa.C.S.A. § 4132(2). See also Trial Court Opinion, 7/31/14, at 10
(“Appellant was convicted under § 4132(2)”).
Further, not only did the trial court, the Commonwealth, and Appellant
know that Appellant was found guilty of contempt under 4132(2), but the
trial court, the Commonwealth, and Appellant also knew that the reference
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to 42 Pa.C.S.A. § 4137(a)(2) in the sentencing order was clearly and
patently incorrect. Certainly, the record is clear that Appellant could never
have been prosecuted for, or found guilty of, contempt under Section
4137(a)(2). Section 4137(a)(2) declares:
A magisterial district judge shall have the power to issue
attachments and impose summary punishments for criminal
contempts of a magisterial district judge court in the
following cases:
...
(2) Failure of a person to obey lawful process in the
nature of a subpoena issued by a magisterial district
judge.
42 Pa.C.S.A. § 4137(a)(2).
Section 4137(a)(2) is clearly inapplicable to the facts of this case.
First, Appellant appeared for his contempt hearing before Philadelphia
County Court of Common Pleas Judge Michael E. Erdos – and Judge Erdos is,
obviously, not a “magisterial district judge.” Indeed, “[a]s of January 1,
1969, the office of magistrate was abolished” in the City of Philadelphia and,
on that date, “a new Municipal Court, a court of record, and a new Traffic
Court for the City of Philadelphia came into existence.” Glancey v. Casey,
288 A.2d 812, 814 (Pa. 1972); see also Pa.Const. Art. 5, § 6; Pa.Const.
Art. 5, Schedule 16(u) (“[t]he office of magistrate, the board of magistrates,
and the present traffic court are abolished”). Moreover, as was already
discussed, Appellant was well aware that he disobeyed the lawful process of
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the Philadelphia County Court of Common Pleas – and not “a subpoena
issued by a magisterial district judge.” See 42 Pa.C.S.A. § 4137(a)(2).
Indeed, the case at bar is no different than one where a defendant was
charged with a particular offense, went to trial for (or pleaded guilty to) that
particular offense, was convicted of that particular offense, and was
sentenced for that particular offense – but the judgment or sentencing order
mistakenly declares that the defendant was convicted of a completely
different crime. In such a scenario, courts around the nation have held that
the error constitutes a patent and obvious clerical error that is subject to
correction, even after the trial court loses traditional jurisdiction over the
case.8 In fact, in Commonwealth v. Young, 695 A.2d 414 (Pa. Super.
____________________________________________
8
See, e.g., United States v. James, 642 F.3d 1333, 1343 (11th Cir. 2011)
(“[b]ecause the written judgment incorrectly states that James was
convicted under [21 U.S.C.] § 841(b)(1)(B)(iii), rather than § 841(b)(1)(C),
we remand for the limited purpose of correcting the clerical error”); United
States v. Kilbride, 584 F.3d 1240, 1259 (9th Cir. 2009) (where the written
judgment declared that the defendant’s three convictions were Class D and E
felonies, but where the record demonstrated that “the jury was not
instructed to make the requisite additional factual findings necessary” to
cause the convictions to be felonies, the convictions were misdemeanors;
thus, “the written judgment’s classification of Counts 1 through 3 as Class D
and E felonies [constituted] a clerical error requiring remand for
correction”); United States v. Wimbush, 103 F.3d 968, 970 (11th Cir.
1997) (holding: “[t]he judgment entered in this case indicates that
Wimbush was convicted of ‘18 U.S.C. § 911(g) Possession of a Firearm by a
Convicted Felon.’ The section reference is a scrivener’s error. Section 911
involves the crime of falsely impersonating a federal officer or employee,
and that statutory provision has no subsections. Wimbush was actually
indicted for, pleaded guilty to, and was convicted of, violating 18 U.S.C.
§ 922(g), which is the provision prohibiting possession of a firearm by a
convicted felon. The sentencing hearing and the arguments in this appeal
(Footnote Continued Next Page)
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1997), this Court even held that the trial court had the ability to correct a
clerical error in the judgment, where the defendant pleaded guilty to the
wrong subsection of a statute.
In Young, the defendant sexually assaulted a woman; the
Commonwealth charged the defendant with multiple crimes, including simple
assault under 18 Pa.C.S.A. § 2701(a)(1), indecent assault under 18
_______________________
(Footnote Continued)
concern that firearm offense, not any § 911 offense. The judgment should
be amended accordingly, and we remand for that limited purpose”); United
States v. McNeal, 932 F.2d 1255, 1255 (8th Cir. 1991) (“McNeal also
argues the district court illegally imposed the special parole term because
the district court sentenced him under 21 U.S.C. § 841(b)(1)(A), which
makes no provision for special parole. In ruling on McNeal’s motion, the
district court recognized it had actually sentenced McNeal under 21 U.S.C.
§ 841(b)(1)(B), which requires a special parole term, rather than under
subsection (b)(1)(A), as the judgment stated. The district court corrected
the judgment by changing the statutory reference to 21 U.S.C.
§ 841(b)(1)(B), and denied McNeal’s motion. We agree with the
Government that the district court’s mistake was a clerical one, and the
district court properly denied McNeal’s motion to correct his sentence”);
Costello v. United States, 252 F.2d 750, 751 (5th Cir. 1958) (where the
factfinder found the defendant guilty of Count 1 and Count 3, but the written
judgment “described the offenses as charged in Count 1 and the withdrawn
Count 2, rather than as charged in Count 1 and Count 3,” the error
constituted “a mere clerical mistake in the judgment which may be corrected
by the district court at any time”); see also State v. Benson, 822 N.W.2d
484, 487 n.2 (Wis.App. 2012) (“[a]t the plea hearing, the circuit court
referenced and Benson pled to the elements for homicide by intoxicated use
of a vehicle, causing the death of an unborn child, contrary to [W.S.A.]
§ 940.09(1)(c). The amended judgment of conviction, however, incorrectly
states that Benson was convicted under subsection (1)(a). This is a clerical
error . . . [and] we remand to the circuit court with directions that the
amended judgment of conviction be amended to reference the correct
statute subsection”).
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Pa.C.S.A. § 3126(a)(1), and indecent assault under 18 Pa.C.S.A.
§ 3126(a)(4). Young, 695 A.2d at 416. At the time, the relevant
subsections of the indecent assault statute read as follows:
(a) Offense defined.-A person who has indecent contact
with another not his spouse, or causes such other to have
indecent contact with him, is guilty of indecent assault if:
(1) he does so without the consent of the other person;
...
(4) he has substantially impaired the other person’s
power to appraise or control his or her conduct by
administering or employing, without the knowledge of
the other[,] drugs, intoxicants or other means for the
purpose of preventing resistance.
18 Pa.C.S.A. § 3126(a)(1) and (4) (1994); Young, 695 A.2d at 418.
The Commonwealth’s information listed the simple assault charge as
“Count 1,” the Section 3126(a)(1) indecent assault charge as “Count 2,” and
the Section 3126(a)(4) indecent assault charge as “Count 3.” Young, 695
A.2d at 418. However, in describing Count 3, the information merely
declared:
THE DEFENDANT DID, on or about APRIL 10, 1994, in the
County aforesaid, have indecent contact with [G.L.], not his
spouse, or caused [G.L.] to have indecent contact with him,
in violation of 18 Pa.C.S.A. § 3126(a)(4). Grading: M2.
Id. at 418 n.6. As this Court noted, the above declaration was “not a
complete recitation of the elements of the offense of indecent assault as
defined in 18 Pa.C.S.A. § 3126(a)(4),” as Section 3126(a)(4) “also requires
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the defendant to have administered drugs or intoxicants to the victim to
prevent that person’s resistance to the indecent contact.” Id.
On September 13, 1994, the defendant entered an open guilty plea to
“Count 1 Simple Assault 18 Pa.C.S.A. § 2701(a)(1)” and “Count 3 Indecent
Assault 18 Pa.C.S.A. § 3126(a)(4);” in exchange, the Commonwealth
dismissed the remaining charges, including Count 2 (indecent assault under
Section 3126(a)(1)). Young, 695 A.2d at 416 and 418 (quotations in
original) (internal corrections omitted). However, in the defendant’s written
plea colloquy, the written form incorrectly listed the elements of Count 3 as
“knowingly, has indecent contact w/another, not his spouse w/out consent of
the other person.” Id. at 418. In other words, we explained, “[the
defendant’s written] guilty plea colloquy defined Count 3 as if it [were]
actually Count 2 of the [information].” Id. at 418-419. Moreover, during
the guilty plea hearing, the oral summary of the facts corresponded with
indecent assault under Section 3126(a)(1) – not Section 3126(a)(4). Id. at
419 (“the summary of the facts indicate[d] that [the defendant] actually
intended to plead guilty to indecent assault as defined by Count 2 of the
[information], not Count 3”) (emphasis omitted). The trial court sentenced
the defendant on Counts 1 and 3; the defendant did not thereafter file a
notice of appeal to this Court. Id. at 416 and 419.
A little less than one year after the defendant’s judgment of sentence
became final, the defendant filed a PCRA petition. Within the petition, the
defendant claimed that his plea was unknowing and involuntary because
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“the facts elicited during the plea colloquy did not match the crime to which
[defendant] pleaded guilty.” Id. at 416. The PCRA court granted the
defendant relief and the Commonwealth appealed to this Court. Id. On
appeal, we reversed the PCRA court’s order. We held that the defendant’s
guilty plea to Count 3 (indecent assault under 18 Pa.C.S.A. § 3126(a)(4))
constituted a clerical error – and that the defendant, in fact, pleaded guilty
to Count 2 (indecent assault under 18 Pa.C.S.A. § 3126(a)(1)). Id. at 419-
420. We thus corrected the clerical error by “substituting Count 2 of the
[information] for Count 3.” Id. at 420. As we explained:
[the defendant] was charged with two counts of indecent
assault, Count 2 which required indecent contact without
the consent of the victim, and Count 3 which required the
defendant to have drugged his victim. The facts elicited
throughout the proceedings below were consistent with a
prosecution for indecent assault as defined by Count 2 of
the indictment, and [the defendant] knowingly and
voluntarily admitted to acts which violated Count 2 of the
indictment. The problem before us, however, was created
when the lower court, the prosecution and defense counsel
committed, in essence, a clerical error by permitting [the
defendant] to plead guilty to the wrong sub-section of the
indecent assault statute.
We do not believe that such an error is tantamount to
manifest injustice. [The defendant] was charged in Count 2
with violating 18 Pa.C.S.A. § 3126(a)(1), and he voluntarily
admitted to facts which constituted that charge. The fact
that [the] judgment of sentence indicates that [the
defendant] pleaded guilty and was sentenced on Count 3,
18 Pa.C.S.A. § 3126(a)(4), does not affect the voluntariness
of [the defendant’s] plea where there was no confusion as
to his commission of Count 2. [The defendant] intended to
plead guilty to indecent assault as defined by 18 Pa.C.S.A.
§ 3126(a)(1), and we will not permit him to withdraw his
plea simply because the trial court, his counsel and the
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prosecution failed to insure that [the defendant] pleaded
guilty to the correct count of the indictment.
Presently, the PCRA court should have corrected the clerical
error of counsel and the trial court which permitted the
judgment of sentence to indicate that [the defendant] had
been sentenced on indecent assault as defined by Count 3,
rather than by Count 2. . . . The power to modify a
judgment of sentence to amend records, to correct mistakes
of court officers or counsel’s inadvertencies is inherent in
our court system, even after the thirty-day time limit set
forth in 42 Pa.C.S.A. § 5505 has expired. . . . Thus, we will
herein correct the clerical error which appears on the face of
the judgment of sentence by setting forth the correct sub-
section of the indecent assault statute, i.e., substituting
Count 2 of the indictment for Count 3.
Id. at 419-420 (internal footnotes and some citations omitted).
In the case at bar, the trial court, the Commonwealth, and Appellant
well aware of the fact that Appellant was charged with, convicted of, and
sentenced for direct criminal contempt under 42 Pa.C.S.A. § 4132(2); they
were also well aware of the fact that Appellant was not – and could not have
been – prosecuted for or found guilty of violating 42 Pa.C.S.A. § 4137(a)(2).
Thus, in accordance with our opinion in Young, the weight of our nation’s
jurisprudence (which considers a discrepancy between the written judgment
and the offense for which the defendant was, in fact, convicted of and
sentenced for to be a clerical error), and our Supreme Court’s opinions in
Klein and Holmes, we conclude that the trial court’s reference to Section
4137(a)(2) in the sentencing order constitutes a “patent defect or mistake
[that was made apparent by viewing] the record.” Holmes, 933 A.2d at 66
(emphasis omitted), quoting Klein, 781 A.2d at 1135. Hence, the trial court
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possesses the inherent power to correct this order, “despite the expiration of
the modification period provided by 42 Pa.C.S.A. § 5505.” We thus remand
the case, so that the trial court may correct the clerical error in the record.
Moreover, in light of our holding that Appellant was convicted of and
sentenced for contempt under 42 Pa.C.S.A. § 4132(2), we conclude that
Appellant’s first claim on appeal – that his sentence of three to six months in
jail was illegal because the trial court found him in contempt under 42
Pa.C.S.A. § 4137 and “the maximum sentence established by [Section
4137(c)] is a fine of no more than $100[.00]” – fails.
Further, since we concluded that Appellant was convicted of direct
criminal contempt under 42 Pa.C.S.A. § 4132(2) – and that the trial court’s
reference to 42 Pa.C.S.A. § 4137(a)(2) in the record constituted a clerical
error – we conclude that Appellant’s second, third, fourth, and fifth
numbered claims on appeal necessarily fail.9
____________________________________________
9
According to Appellant’s second claim, the record “cannot be amended
post-verdict or post-appeal to any other type of contempt conviction as
doing so would violate Appellant’s right to due process . . . and the
prohibition on double jeopardy.” Appellant’s Brief at 4 and 20. However,
since Appellant was charged with, convicted of, and sentenced for contempt
under 42 Pa.C.S.A. § 4132(2) – and since the reference to 42 Pa.C.S.A.
§ 4137(a)(2) in the record constituted a clerical error – the correction of the
clerical error will neither violate Appellant’s right to due process nor
implicate the double jeopardy clause of either the United States or the
Pennsylvania Constitution.
Appellant’s third and fourth numbered claims on appeal are premised upon
the belief that he was convicted of contempt under 42 Pa.C.S.A.
§ 4137(a)(2), which, this Court has concluded, is false. See Appellant’s
(Footnote Continued Next Page)
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Within Appellant’s sixth numbered claim on appeal, Appellant claims
that he “received no notice that he was charged with criminal contempt until
the very moment that the trial commenced.” Appellant’s Brief at 16 and 24.
Therefore, Appellant claims, “in finding Appellant in contempt under
[§ 4132(2)], the [trial] court violated Appellant’s right to due process,
including his right to notice and the opportunity to prepare an adequate
defense.” Appellant’s Brief at 16 and 24. This claim is waived, as Appellant
did not raise the claim before the trial court and Appellant did not otherwise
object to the contempt proceedings in the trial court. Pa.R.A.P. 302(a)
(“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal”); Commonwealth v. Kennedy, 959 A.2d 916,
924-925 (Pa. 2008) (in capital murder case, where “mitigation counsel did
not request a continuance . . . or otherwise object[] to the trial date,”
Appellant waived claim that “counsel was in need of additional time” to
prepare for the penalty phase); see also Moody, 46 A.3d at 772 (“[d]irect
criminal contempt often requires immediate adjudication in the form of a
_______________________
(Footnote Continued)
Brief at 4-5. As such, Appellant’s third and fourth numbered claims on
appeal fail.
Finally, Appellant’s fifth numbered claim on appeal contends that his direct
criminal contempt conviction under 42 Pa.C.S.A. § 4132(3) was erroneous.
However, since we conclude that Appellant was properly convicted of direct
criminal contempt under 42 Pa.C.S.A. § 4132(2), we will not consider
Appellant’s claim regarding 42 Pa.C.S.A. § 4132(3).
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summary hearing. . . . Due process requirements necessarily are truncated
in summary proceedings. Summary proceedings for contempt of court are
those in which the adjudication omits the usual steps of the issuance of
process, service of complaint and answer, holding hearings, taking evidence,
listening to arguments, awaiting briefs, submission of findings, and all that
goes with a conventional court trial”) (internal quotations and citations
omitted).10
Finally, Appellant claims that the evidence was insufficient to find him
in contempt under § 4132(2) because, during the contempt hearing,
Appellant presented evidence that – after he failed to appear for his July 3,
____________________________________________
10
In Commonwealth v. Edwards, 703 A.2d 1058 (Pa. Super. 1997) and
Commonwealth v. Pruitt, 764 A.2d 569 (Pa. Super. 2000), this Court held
that the appellants had not waived their due process claims on appeal, even
though the appellants failed to object to the direct criminal contempt
proceedings. However, the Edwards and Pruitt courts forgave the
potential waiver because the appellants simply did not have an opportunity
to object to the proceedings. Indeed, in both cases, the trial courts
pronounced the appellants in contempt of court without providing them with
any notice that they were even facing a contempt conviction. See
Edwards, 703 A.2d at 1060 n.2 (trial court found the appellants in
contempt following a “perfunctory” hearing that failed to provide the
appellants with “any adequate notice that [they] were being subjected to
contempt proceedings”); Pruitt, 764 A.2d at 576 (“[n]owhere during the
proceedings leading up to the court’s imposition of a fine did the court
mention that it considered [a]ppellant’s conduct to be contemptuous”).
However, in the case at bar, Appellant admits that he knew he was charged
with criminal contempt before the contempt hearing began. Appellant’s Brief
at 16. Thus, since Appellant knew that he was charged with contempt
before the contempt hearing – and since Appellant was represented by
counsel at the contempt hearing – Appellant was provided with an
opportunity to object to the proceedings. Appellant’s failure to object has
thus caused the waiver of his due process claim on appeal.
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2007 trial – the subsequent bench warrants were mailed to a different
address than the one where he resided. This claim fails automatically, as
the trial court found Appellant in contempt for willfully failing to appear in
court for his July 3, 2007 trial, pursuant to the Notice of Trial that was
issued by the Philadelphia County Court of Common Pleas and that was
signed by Appellant. See Trial Court Opinion, 7/31/14, at 5 (“the Notice of
Trial signed by Appellant, directing him to appear at 9:00 a.m. on July 3,
2007, was definite, clear, and specific, satisfying . . . § 4132(2). In fact, it
would be difficult to find a clearer order. Further[], as Appellant signed this
notice, he cannot claim that he had no notice or knowledge of it”).
Judgment of sentence affirmed. Case remanded for the correction of a
clerical error. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/2015
- 32 -
Com. v. Allen, D.
Combined Opinion