COM. v. McMULLEN

Justice SAYLOR files a concurring and dissenting opinion.Page 449

Chief Justice CASTILLE.

I join the Majority Opinion in its entirety. I write separately to (1) address a supervisory issue and (2) elaborate on the separation of powers issue implicated by 42 Pa.C.S. § 4136(b).

The supervisory issue presented in this case is that the Superior Court raised the issue of a statutory right to a jury trial under Section 4136(a)(3)(i) sua sponte. For this independent reason, the Commonwealth clearly is entitled to relief on the claim and remand to the Superior Court is appropriate.

In addition to arguing that Section 4136 is unconstitutional, the Commonwealth maintains that the "Superior Court completely ignored that appellee's jury trial claim was waived because he did not raise it in his Rule 1925(b) Statement of Questions Complained of on Appeal." Commonwealth's Brief at 13, n. 4. The Commonwealth also contends that the Superior Court disregarded the elemental fact that appellee did not argue that he was entitled to a jury trial by virtue of Section 4136(a)(3)(i). Instead, appellee claimed that the trial court's aggregate sentence entered upon his convictions for indirect criminal contempt, having exceeded six months, retroactively triggered his right to a trial by jury. The Commonwealth charges that the Superior Court sua sponte held that Section 4136(a)(3)(i) gives all persons charged with indirect criminal contempt the right to a jury trial. Having raised this broader issue sua sponte, the Commonwealth argues, the Superior Court then held that, because appellee was not offered a jury trial, his case had to be remanded for a new trial on the indirect criminal contempt charges to afford him the statutory option of a jury trial.

In response, appellee agrees that he never raised the claim that he was entitled to a jury trial under Section 4136(a)(3)(i). Appellee explains that his claim regarding his right to a jury trial before both the trial court and the Superior Court was premised upon his belief that the trial court's imposing an aggregate sentence which exceeded six months retroactively triggered a constitutional right to a trial by jury. However, appellee disputes the Commonwealth's claim that the Superior Court granted him relief based upon a violation of his statutory right to a trial by jury under Section 4136(a)(3)(i). To the contrary, appellee contends that the Superior Court, in reviewing his actual jury trial issue, acknowledged that the basis for its remand was his constitutional claim regarding his sentences exceeding the statutory maximum provided in Section 4136(b). Appellee maintains that the Superior Court discussed Section 4136(a)(3)(i) only in the context of two other issues he never raised: (1) whether appellee had been advised of his right to a jury trial and whether he had waived that right below; and (2) what procedure should appellee be entitled to on remand. Appellee characterizes the Superior Court's discussion of his right to a jury trial under Section 4136(a)(3)(i) as dicta, yet maintains that the Superior Court's review of these issues was appropriate after the panel determined he had not waived his right to a jury trial, thus justifying the panel's consideration of the proper substantive and procedural rights that he should be afforded on remand. Appellee also notes that it was "the Commonwealth [which] sought allowance of appeal contending that both the maximum sentence set by [Section 4136] for punishment of a charge of indirect criminal contempt for the violation of a restraining order or injunction, and the enhanced due process protection of a `public trial by an impartial jury' reserved for this context were impermissible infringements upon this Court's judicial power under Article V of the Pennsylvania Constitution." Appellee's Brief at 6.

Whether dicta or not, the panel below purported to render a holding in a published opinion concerning Section 4136, that holding was to govern remand, and it aggrieves the Commonwealth. Moreover, it is also apparent that the panel erred in raising the issue sua sponte. Appellee's first issue, as presented in his Pa.R.A.P.1925(b) Statement, was the following:

The trial court erred in sentencing [appellee] to five consecutive terms of two [] months and twenty-eight [] days to five [] months and twenty-nine [] days for contempt as the aggregate sentence exceeds six [] months and where the conduct alleged violated a single stay-away order and comprised a single criminal episode in violation of the due process and trial by jury provisions of the [U.S.] and Pennsylvania Constitutions.

Trial Ct. Op., September 24, 2004, at 3. The trial court, apparently adverting to Section 4136, opined that a charge of indirect criminal contempt "triggers the essential procedural safeguards that attend criminal proceedings," including, inter alia, "the right, upon demand, to a speedy trial and public trial before a jury." Id. at 8. In finding that it "took proper steps to make sure that [appellee] received a fair hearing and that he would not be denied his due process rights," the trial court emphasized that appellee never raised any objections to the contempt charges and never requested or demanded a trial by jury for the contempt charges. Id. at 9.

Appellee argued before the Superior Court as follows respecting his claim regarding a right to a jury trial:

The aggregated sentence of nearly one and one half to three years for contempt is illegal because it exceeds six months and [appellee] did not waive his right to trial by jury, in violation of the due process and trial by jury provisions of the [U.S.] and Pennsylvania Constitutions.

Appellee's Super. Ct. Brief at 12. Appellee argued that relief was required because his sentences, when aggregated, exceeded six months, thus retroactively triggering his constitutional right to a trial by jury, and that he never waived his right to jury trial. Appellee concluded that his sentences were thus illegal and should be vacated.

The Commonwealth responded that the claim as presented was multiply waived. The Commonwealth noted that: appellee raised the issue for the first time in his appellate brief, without presenting it to the lower court at sentencing or in a post-sentence motion, without preserving it in his Rule 1925(b) Statement, and without seeking the Superior Court's permission to raise a discretionary sentencing claim in a separate Pa.R.A.P. 2119(f) statement in his appellate brief. The Commonwealth also asserted that appellee's sentences were not illegal and, thus, he failed to preserve this claim for review. Appellee responded that his claim was properly preserved by raising it for the first time in his Rule 1925(b) Statement.

The panel rejected the Commonwealth's waiver argument by stating that:

This issue was raised in the first paragraph of [appellee's] Pa.R.A.P.1925(b) statement dated May 18, 2004, which renders the Commonwealth's waiver argument as to this issue specious.

Commonwealth v. McMullen, 881 A.2d 841, 849 n. 6 (Pa.Super. 2005). But the Commonwealth's argument was not "specious," and the panel's reasoning is correspondingly problematic. A claim which is waived before the trial court is not given life by raising it for the first time after an appeal has been taken.

After this non-responsive rejection of the waiver argument, the panel explained that it had already considered appellee's "contention that the aggregate punishment for the six criminal contempt convictions necessitates a vacation of the sentence" during its discussion of appellee's first claim, i.e., that his sentences were illegal because they exceeded the statutory maximum. Id. at 849. The panel unfortunately went further and sua sponte considered the question of the statutory right to a jury trial under Section 4136(a)(3)(i) because it had "yet to be resolved." Id. The panel explained that it would take direction from L J Equipment Co. v. United Mine Workers of America, 339 Pa.Super. 51, 488 A.2d 303 (1985), wherein a Superior Court panel reversed and vacated an indirect criminal contempt conviction finding that:

[the defendant was] necessarily entitled to the rights specified in Section 4136, including the right to admission to bail, the right to be notified of the accusations against [him], and upon demand, the right to a trial by jury.

McMullen, 881 A.2d at 849-50 (quoting L J Equip. Co., 488 A.2d at 307). Unencumbered by advocacy, the panel then found that after review of the record, appellee was not advised of, inter alia, his right to a trial by jury under Section 4136(a)(3)(i) and therefore, could not have exercised his right to request a jury trial. Thus, the panel instructed that on remand "this procedural deficiency shall be rectified to avail [appellee] the option to proceed with a jury in resolving his contempt violations." Id. at 851.

In short, the panel made two fundamental errors: it failed to consider the actual waiver argument forwarded by the Commonwealth (and nonetheless granted relief) and it then raised another issue sua sponte. Although the Commonwealth now makes a brief reference to appellee having waived the actual claim presented below, the waiver argument was not the subject of our grant of review of the Commonwealth's allocatur petition. Accordingly, this claim is not for the Court to consider presently, Commonwealth v. Revere, 585 Pa. 262, 888 A.2d 694, 700 n. 8 (2005); Commonwealth v. Travers, 564 Pa. 362, 768 A.2d 845, 846 (2001), albeit the Superior Court should consider it upon remand.

However, the record plainly shows that no constitutional challenge was raised to Section 4136 below, because Section 4136 was not an issue until the panel made it one. I highlight the issue because of the obvious supervisory concern. The Superior Court's unnecessary holding regarding Section 4136(a)(3)(i) was rendered in a published opinion, and the Commonwealth, which certainly was aggrieved by the holding, properly sought review here. This creates a circumstance where this Court must address an avoidable constitutional issue in the first instance. I would remind the Superior Court of the limits of its authority that an issue not presented or preserved for appellate review should not be considered by an appellate court. See Skepton v. Borough of Wilson, 562 Pa. 344, 755 A.2d 1267, 1270 (2000); Knarr v. Erie Ins. Exchange, 555 Pa. 211, 723 A.2d 664, 666 (1999); In re J.M., 556 Pa. 63, 726 A.2d 1041, 1051 n. 15 (1999); Riedel v. Human Relations Comm'n of City of Reading, 559 Pa. 34, 739 A.2d 121, 123-25 (1999); Estep v. Estep, 508 Pa. 623, 500 A.2d 418, 419 (1985); Com. ex rel. Robinson by Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800, 804-05 (1984); Phillips Home Furnishings, Inc. v. Continental Bank, 467 Pa. 43, 354 A.2d 542, 543-44 (1976); Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256, 257 (1975).

Turning to the second issue, the majority finds that Section 4136(b), which caps punishment for indirect criminal contempt at a $100 fine or 15 days imprisonment, is unconstitutional. I agree and I write only to elaborate on my take of the Majority's reasoning.

It is axiomatic that the General Assembly can legislate crimes, including appropriate punishment. Generally, it is the province of the General Assembly to prescribe the punishment for criminal conduct. However, none of our precedent on the General Assembly's power to fix punishment for crimes pertains to contempt of court, which, as the Majority correctly notes, is different from other crimes, and different in a way that implicates the fundamental separation of powers of the branches of government.

Indirect criminal contempt, of course, is a crime and individuals charged with such are afforded procedural safeguards under the Pennsylvania and U.S. Constitutions, and under Pennsylvania statutory law and criminal procedure. See Crozer-Chester Med. Ctr. v. Moran, 522 Pa. 124, 560 A.2d 133, 137 (1989); Commonwealth v. Charlett, 481 Pa. 22, 391 A.2d 1296, 1298 (1978). However, criminal contempt of court is sui generis, as it involves conduct implicating fundamental judicial authority. It is well-settled, as the Majority notes, that the courts have the inherent power to enforce compliance with lawful orders through contempt, including the power to impose punishment for non-compliance. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); see also Commonwealth v. Bowden, 576 Pa. 151, 838 A.2d 740, 760 (2003); Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759, 763 (1980); Commonwealth v. Haefner, 470 Pa. 392, 368 A.2d 686, 688 (1977); In re Martorano, 464 Pa. 66, 346 A.2d 22, 27 (1975); East Caln Twp. v. Carter, 440 Pa. 607, 269 A.2d 703, 705 (1970); Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336, 338 (1968).

While it is true that the General Assembly generally may fix the appropriate punishment for criminal conduct, criminal contempt is obviously distinct and different. I agree with the Majority that the offense is against the authority of the court, a coordinate branch of government, which is not the same as offenses against the public encompassed by the Crimes Code, Vehicle Code, drug offenses and the like. A court that issues an order which is subsequently violated is uniquely situated to set the appropriate punishment for violation of that order. In my view, the General Assembly cannot dictate to the courts what is adequate punishment to vindicate a court's authority. Indeed, to concede such a power would be to allow the General Assembly, in theory, to destroy the judiciary's ability to address contempt: for what would there be to prevent the General Assembly from limiting punishment to something completely toothless such as, for instance, a five dollar fine? Our constitutional supervisory role mandates that the judiciary should determine how to enforce court edicts. Allowing the trial courts to freely exercise their inherent contempt power, subject to judicial review, will ensure orderly judicial function and compliance with court orders.

In summary, while I believe that the Superior Court improperly raised and ruled upon the issue of appellee's statutory right to a jury trial under Section 4136(a)(3)(i), I join the Majority Opinion which holds that the General Assembly usurped this Court's constitutional rulemaking authority when it enacted Section 4136(a)(3)(i) and that Section 4136(b) is unconstitutional.

Justice GREENSPAN joins this opinion.

Justice GREENSPAN, concurring.

I join the Majority Opinion authored by Justice Eakin, as well as the Chief Justice's Concurring Opinion, for the following reasons. One of appellant's initial claims on appeal to the Superior Court was that his constitutional right to a jury trial was violated when the trial court imposed, without a prior offer of trial by jury, an aggregate sentence that exceeded six months. The Superior Court panel had authority and an obligation to consider this claim, as well as the Commonwealth's assertion that appellant waived the claim by failing to include it in his Statement of Questions Complained of on Appeal. The panel was not authorized to convert appellant's constitutional claim into one based on the statutory right to a jury trial apparently granted by 42 Pa.C.S. § 4136(a)(3)(i).

Of course, once the Superior Court improperly refocused the issue on Section 4136, and then further determined that appellant was denied his rights under the statute, the Commonwealth was entitled to seek review in this Court to challenge: 1) the failure of the Superior Court to consider the case on the proper grounds; and 2) the merits of the panel's decision. This Court, as carefully and thoroughly set out in the Majority Opinion, concludes that under Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), the Legislature usurped the Court's constitutional rulemaking authority when it granted the right to a jury trial in Section 4136(a)(3)(i). Therefore, the subsection is unconstitutional and must be stricken. That conclusion is correct and I join it.

I also agree with the Chief Justice's observation that on remand, the focus of the Superior Court should be on whether appellant preserved the claim that his constitutional right to a jury trial was violated (the issue he raised in the first instance).

The second issue this case presents is whether the legislature unconstitutionally usurped this Court's authority in the area of contumacious violation of a court order when it limited a sentence of imprisonment for indirect criminal contempt to 15 days. On this issue, I join the Chief Justice in noting that criminal contempt of court is sui generis. The General Assembly certainly may legislate in a given area of the law (such as in the case of Protection From Abuse matters), and may authorize court orders and punishments for their violation in the context of those areas. The resulting court orders in such cases are legislatively authorized by statute. Here, however, with Section 4136(b), the Legislature limits the court's authority to punish for indirect criminal contempts of any and all of the court's general orders of injunction and restraint. Thus, it purports to apply to every injunction and restraining order a court enters. Under the statute, a court cannot fashion its sentence based on the nature of the contemnor's violation or the danger the violation may have triggered. Rather, the court is limited to imposing, at a maximum, a brief period of incarceration, no matter the facts surrounding the case. This is an improper encroachment on a court's inherent authority to enforce its own orders and so certainly constitutes an illegal infringement on the separation of powers.

Appellant initially claimed that his sentence violated 42 Pa.C.S. § 4133, Commitment or fine for contempt. Section 4133 provides that commitment for contempt is proper "only [for] contempts committed in open court" and "all other contempts shall be punished by fine only," except if "otherwise provided by statute." 42 Pa.C.S. § 4133. The Superior Court panel looked to Section 4136(b) because it believed that subsection presented a statutory exception to the "fine only" provision in Section 4133. One could argue that Section 4133 likewise constitutes an infringement on a court's authority to enforce its own orders. However, that statute is not before us in this case.

Unlike Justice Saylor, I believe that criminal contempts of court present the only instance where courts may make a rule, adjudicate its violation, and assess a penalty. The right of appellate review serves to protect the contemnor. The limits imposed by the legislature in Section 4136(b) abrogate the inherent power by which the court can enforce its own orders. Because Section 4136(b) violates the separation of powers doctrine, it is invalid.

Justice McCAFFERY joins.

Justice SAYLOR, concurring and dissenting.

With regard to the first issue, I concur in the result based solely on Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), which, as the majority explains, held broadly that "the right to trial by jury is not a `substantive right,' but a right of procedure through which rights conferred by substantive law are enforced." Id. at 361, 456 A.2d at 1329.

Absent such precedent, however, I would construe Section 4136 of the Judicial Code as having significant substantive aspects and, thus, not violative of Article 5, Section 10(c) of the Pennsylvania Constitution. See PA. CONST. art. 5, § 10(c); accord Sorrell, 500 Pa. at 364, 456 A.2d at 1330-31 (Nix, J., dissenting) ("The truth of the matter is that the right to trial by jury unlike most other rights is neither purely `procedural' nor purely `substantive,' but rather `. . . fall[s] within the uncertain area between substance and procedure, [and is] rationally capable of classification as either.'" (quoting Hanna v. Plumer, 380 U.S. 460, 472, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8 (1965))).

Furthermore, as I have previously expressed, both in gray areas between substance and procedure, and in matters that have not yet been occupied by this Court via its own procedural rules, I would allow some latitude to the Legislature to make rules touching on procedure, so long as such rules are reasonable and do not unduly impinge on this Court's constitutionally prescribed powers and prerogatives. Accord Commonwealth v. Morris, 573 Pa. 157, 187, 822 A.2d 684, 702 (2003) (Saylor, J., concurring).

Notably, in Perm Anthracite Mining Co. v. Anthracite Miners of Pa., 318 Pa. 401, 178 A. 291 (1935), the Court considered a constitutional challenge to the precursor of the disputed statute — the Act of June 23, 1931, P.L. 925 (as amended 17 P.S.2047, 2048), which, like Section 4136, provided for a jury trial and limited punishment for indirect criminal contempt to fifteen days and a one-hundred dollar fine. Indeed, the issue addressed in Penn Anthracite was, "[m]ay the Legislature grant the right to a jury trial for one charged with the `indirect criminal contempt for violation of a restraining order' and limit the punishment?" Id. at 406, 178 A. at 293. In upholding the statute, the Court expressly rejected the assertion that it materially interferes with the inherent power of the judiciary, noting that similar restrictions on federal courts have not interfered with judicial administration. See id. at 411, 178 A. at 295 (citing Michaelson v. United States, 266 U.S. 42, 65, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924)). Although this decision did not consider the Court's exclusive rulemaking power under Article 5, Section 10 (as this section was not yet in existence), it found the statute governing indirect criminal contempt to be a valid limitation on the court's chancery powers. See id. at 411-12, 178 A. at 295.

Here, I believe that Section 4136 is reasonable, since it operates as a constraint on the ability of a single tribunal to make a rule, adjudicate its violation, and assess its penalty, a power that at least one Supreme Court Justice has observed is "out of accord with our usual notions of fairness and separation of powers." International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 840, 114 S.Ct. 2552, 2563, 129 L.Ed.2d 642 (1994) (Scalia, J., concurring). For this reason, I also respectfully dissent with regard to the second issue, which is not controlled by precedent, and as to which the majority invalidates Section 4136(b) based on an inherent-powers rationale.