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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. : : : JASON PARKER : : Appellant : No. 3318 EDA 2014

Appeal from the Judgment of Sentence October 29, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-MD-0000593-2014

BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.: FILED OCTOBER 02, 2017

Jason Parker appeals from the judgment of sentence imposed on

October 29, 2014, in the Court of Common Pleas of Philadelphia County, after he was found in contempt. Parker was sentenced to a term of 5

months and 29 days of non-reporting probation. In this timely appeal, Parker argues the trial court erred in finding him in contempt of its verbal

order to leave the courthouse, where he was required to re-enter the courthouse pursuant to subpoena. Further, Parker asserts the trial court erred in finding him in contempt for other actions he claims were taken outside the presence of the court. Finally, Parker argues, having been convicted of a summary offense, the 5 month, 29 day probationary sentence

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* Former Justice specially assigned to the Superior Court.

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is illegal. After a thorough review of the submissions by the parties, relevant law, and the certified record, we vacate the judgment of sentence and reverse the conviction of contempt. Before we begin our analysis of this matter, we take brief note of the procedural history. In April 2014, Parker was banished from the Philadelphia Criminal Justice Center (CJC) by the Honorable Rayford A. Means after several attorneys complained that Parker was interfering with their ability to interact with their clients. Later that day, Parker returned to the CJC and was brought before Judge Means, and a contempt proceeding ensued. Eventually, on August 19, 2014, Parker was found in contempt for a variety of actions.^[1] On October 29, 2014, Parker was sentenced and he appealed. Parker sought to represent himself and the matter was remanded to the trial court to conduct a Grazier hearing. One hearing was held and Parker withdrew his application to represent himself and accepted appointed counsel. Shortly thereafter, Parker reasserted his desire to represent himself and another Grazier hearing was held on February 12, 2016. At that hearing, Judge Means found Parker in contempt for disobeying an order to be silent. Parker has also appealed that decision. Although not consolidated, both appeals are now before this panel.2 ____________________________________________

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Instantly, the record demonstrates that Parker was charged with and found guilty of violating 42 Pa.C.S. § 4137(3). See Parker’s Brief at 20-21. Despite an order signed by the trial court indicating Parker violated Section 4137(3),3 we believe the proper section at issue is Section 4132(3), which states: 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: *** (3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice. 42 Pa.C.S. § 4132(3) (emphasis added). Our standard of review is as follows: ____________________________________________

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[I]n 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.

Commonwealth v. Jackson, 367 Pa.Super. ^[6], 532 A.2d 28, 31-32 (1987)(internal citations omitted); Accord Ricci v. Geary, 447 Pa.Super. 609, 670 A.2d 190, 191 (1996). In making this examination: “we must evaluate the entire record and consider all evidence actually received.” Commonwealth v. Falana, 548 Pa. 156, 161, 696 A.2d 126, 128 (1997) quoting Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986).

A court's power to find an individual in criminal contempt is conferred by Section 4132 of the Judiciary Code, which provides in relevant part:

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: *** (3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

42 Pa.C.S.A. § 4132(3). Consequently, to sustain a conviction for direct criminal contempt under this provision there must be proof beyond a reasonable doubt: (1) of misconduct, (2) in the presence of the court, (3) committed with the intent to obstruct the proceedings, (4) that obstructs the administration of justice. Williams v. Williams, 554 Pa. 465, 469, 721 A.2d 1972, 1073 (1998); Commonwealth v. Martorano, 387 Pa.Super. 79, 563 A.2d 1193, 1197 (1989), appeal denied 529 Pa. 632, 600 A.2d 952 (1991).

Commonwealth v. Williams, 753 A.2d 856, 861 (Pa. Super. 2000).

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On April 23, 2014, at approximately 11:00 A.M., Judge Rayford Means ordered Parker from the CJC. However, shortly thereafter, Parker reentered the building pursuant to subpoena to attend a court proceeding before a different judge. Parker was seen by a sheriff and taken before Judge Means. At 11:46 A.M., a contempt hearing was convened. Judge Means explained the history: THE COURT: This is a contempt hearing for Mr. Jason Parker. [ADA]: Yes, Judge. THE COURT: Who was, earlier today, April 23rd, ordered out of the building, based on a complaint – a number of complaints that he was soliciting people in the hallways. As recently as 30 minutes ago, Mr. Shaka Johnson came in and told me that Mr. Parker had passed out his cards, telling people he’s affiliated with Mr. Shaka Johnson. I ordered [Parker] out of the building because I felt that he was interfering with justice by soliciting unknowing people and asking them for money to represent them, when he is not licensed. N.T. Contempt Hearing, 4/23/2014, at 3. Judge Means briefly recounted the substance of the complaints against Parker that led to the order and determined there was sufficient cause to hold a full contempt hearing, which he scheduled for May 6, 2014. This determination was made despite the fact that Judge Means was aware that Parker returned to the CJC in order to attend a different court hearing. This knowledge is amply demonstrated in the following exchange: THE COURT: I ordered you out of the building. PARKER: I left the building.

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THE COURT: Then you came back in.

PARKER: I have a hearing at 11:30 in B-03, Your Honor.

THE COURT: No, no.

PARKER: I came back for my hearing.

THE COURT: You didn’t tell me that. If you –

PARKER: I came up to the sheriff, Judge.

THE COURT: - if that was true, you would have told me when we escorted you out of the building.

PARKER: I was –

THE COURT: But you never said that.

PARKER: - trying to talk to you. You wasn’t listening to me.

THE COURT: I was listening to you. All right.

PARKER: I was trying to tell you I have a hearing today for me. Nobody –

THE COURT: Okay, Well, I’ll contact B-05?

PARKER: B-03, in the basement.

N.T. 4/23/2014, at 7-8.

Following this exchange, Judge Means set Parker’s bail at $500,000.00 and, at the request of the Commonwealth, lodged a detainer against Parker

regarding the possible violation of Parker’s probation on another matter.^[4] ____________________________________________

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The May 6, 2014 hearing was continued to May 20, 2014.5 At the May 20, 2014 hearing, the following exchange occurred: COURT OFFICER: All right. Let’s go. [COUNSEL]: Judge, I didn’t have adequate time to speak with him. He doesn’t understand what’s happening at this point. THE COURT: All right. I’m going to – I’ve got some witnesses who’ve got – [ADA]: We’re all here. THE COURT: - to go, so I’m going to preserve their testimony. [ADA]: Judge, he’s already declared legally competent, so – [COUNSEL]: It’s not about legal competence. It’s about somebody else was in the booth. THE COURT: All right. [ADA]: Oh, oh, that’s fine. [COUNSEL]: So I just got into the booth a minute ago. THE COURT: All right. Let’s go. Have a seat. All right, this is Commonwealth v. Parker. [COUNSEL]: Well, Judge, he’s – respectfully, Judge, he’s starting to weigh his options as far as – THE COURT: All right. Well, I want to preserve some testimony anyway, Whatever he wants to do, he can do, but right now, I’m moving forward. All right, Parker is number what on the list? [ADA]: it’s 47 – ____________________________________________

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THE COURT: Forty-seven. [ADA]: And 87 – Judge Foglietta’s VOP, Judge. THE COURT: Mr. Parker, you are here because you – I found – this is a contempt hearing for you because I ordered you out of the Criminal Justice Center. I ordered you out because I had gotten complaints from lawyers that you were practicing law in this building. And I asked you on that day that I put you out were you a lawyer. PARKER: Right. N.T. Contempt Hearing, 5/20/2014, at 4-5 (emphasis added). On May 20, 2014, nine witnesses6 were called to testify. All testimony concerned the allegation that Parker had either been practicing law without a license or had held himself out to members of the public to be a lawyer. The original accusation of contempt addressed only the alleged disobeying of the order to leave the CJC. The trial judge reiterates that reason at the beginning of the May 20, 2014 hearing. Although the trial judge had referred to some of Parker’s actions which had led to his banishment, there was no specific indication that those actions would be raised, sua sponte, by the trial judge as separate acts of contempt. Indeed, it was not until the trial judge had realized Parker had a legitimate reason to have reentered the CJC that these other actions became the focus of contempt. Accordingly, ____________________________________________

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there is no indication in the certified record that Parker was given any notice of these allegations prior to the hearing. All but one of Parker’s actions testified to took place outside the physical presence of the trial court. The certified record is also free from any mention of an order or decree, other that the order to leave the CJC, Parker might have been violating. On April 23, 2014, despite the trial court knowing that Parker had a subpoena requiring him to be at the CJC that day,7 the trial court scheduled a full contempt hearing for May 6, 2014.8 After taking the testimony of several witnesses, the trial court continued the May 20, 2014 hearing to August 19, 2014, in order to take further testimony regarding Parker “sneaking”9 back into the CJC on April 23, 2014. At the close of the August 19, 2014 hearing, the trial court found Parker guilty of contempt which is the subject of this appeal. Specifically, the trial court stated: The Court: Okay. Mr. Parker, based on all of the information I have in front of me, based on the past hearings that we’ve had – you were in the courtroom on that day. I had to take you out. You had been here on a number of occasions. I find that, number one, you disrupted the operations of this courtroom. ____________________________________________

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Number two, you disrupted the operations of the Criminal Justice Center by soliciting from people. And those other people can come in. Michelle, ask those witnesses to come in.

Court officer: Sure.

The Court: They’ve come here faithfully. Once again, I said that Mr. – let the record reflect that I offered Mr. Parker’s right of allocution. I offered him the opportunity to take the witness stand and testify. Through his attorney, he has refused to do so, so let the record so reflect….

I find that you disrupted the courtroom operations here. I found that you disrupted the operations of the defense bar, specifically, the Defender Association, along with private counsel.

Specifically, I find that Kate Cacciamani had to be appointed on a case when Ms. Victoria Sanita of the Defender Association had to be removed because there was confrontation between you in which you confronted her in the anteroom, and she could no longer represent her client.

I find that you disrupted the practice of law by the private attorneys and by the Defender Association by soliciting clients out in this hallway, in this courtroom, and in other courtrooms. I find that you engaged in the practice of law illegally. You also were instructed to leave the Criminal Justice Center for the aforementioned reasons, and you returned.

You never, at any opportunity when I had to personally go out and get you, mention that you had any summary hearing in this courtroom. I’ll also point out that when I did find out you had a hearing, I called and had it postpone[d] so your case was not dismissed, so that you did not get a bench warrant.

N.T. Hearing, 8/19/2014, at 10-12.

We begin our analysis with the trial court’s determination that Parker acted contemptuously by reentering the CJC after he had been ordered out of the building. The order to leave the building is the only order Parker was charged with violating.

- 10 -

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Conviction of contempt for violation of a court order can be sustained only if the order or decree was “definite, clear, specific and left no doubt or uncertainty” in the mind of the person to whom it was addressed of the conduct prohibited. Commonwealth v. Garrison, 386 A.2d 971, 977 (Pa. 1978) (citations omitted). The certified record does not contain the exact language used by Judge Means in expelling Parker. However, the judge reiterated his order at the beginning of the April 23, 2014 contempt hearing wherein he simply stated he had ordered Parker out of the building. No time limit was ever established. A strict interpretation of the order, as related by Judge Means, indicates Parker absolutely complied. He did, in fact, leave the building. “The long-standing salutary rule in contempt cases is that ambiguities and omissions in orders redound to the benefit of the person charged with contempt.” Id. Were we to ignore the rule providing the defendant with the benefit of ambiguities and omissions, and presume that the expulsion was meant to last at least for the rest of the day, we cannot ignore the fact that the trial court recognized Parker had a legitimate subpoena requiring him to return to the CJC for a different hearing. In this respect, the order was overly broad. We can find no authority for the proposition that an order of expulsion overrides a subpoena requiring the subject to appear before another judge in the building in question. In light of the foregoing, Parker cannot be found in contempt of the order requiring him to leave the CJC. - 11 - J-S40037-17 The remaining allegations against Parker are that he misbehaved in the presence of the court, thereby obstructing the administration of justice. See Section 4132(3), supra.^[10] Initially, “No satisfactory definition of contemptuous misconduct has been developed.” Garrison, 386 A.2d at 979. However, “An obstruction of the administration of justice is a significant disruption of judicial proceedings.” Id. We believe this limits the powers of the court to find contempt to those actions that disrupt actual judicial proceedings. Accordingly, this would not include those actions the trial court characterized as disrupting the activities of the office of the Public Defender or the actions of a private attorney in the hallways of the CJC. The Commonwealth seeks to expand the scope of “in the presence of the court” to include “outside the courtroom but so near thereto that it obstructs the administration of justice.” Commonwealth v. Falana, 696 A.2d 126, 129 (Pa. 1997) However, this language is dicta in Falana, not holding, since the question in Falana was whether it was contemptuous for a defendant to threaten a witness in the courtroom, as the defendant was ____________________________________________