
    Mayberry Appeal.
    
      Argued November 12, 1968.
    April 23, 1969:
    Before Bell, C. J., Jones, Cohen, Eagen, O’Beien and Roberts, JJ.
    
      Peter Kanjorski, for appellant.
    
      Charles B. Watkins, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.
   Opinion by

Mr. Justice Jones,

Herbert Langnes, Dominic Codispoti and Richard Mayberry were indicted by the Grand Jury of Allegheny County on two charges: (1) holding hostages in a penal institution and (2) prison breach. All three defendants were tried together and all three defendants were found guilty on both counts.

Richard Mayberry entered a plea of not guilty, waived his right to representation by counsel and chose to act as his own counsel at trial.

On December 12, 1966, the court sentenced May-berry to a term of imprisonment of not less than fifteen or more than thirty years on the first count and not less than five or more than ten years on the second count. These sentences were to be served consecutively at the expiration of any sentence Mayberry was already serving.

On the same day the court also sentenced May-berry on eleven separate acts of criminal contempt which allegedly took place during the trial of the case and imposed a sentence of not less than one or more than two years for each separate act of criminal contempt, said sentences to be served consecutively at the expiration of the sentences imposed for the two crimes of which he had been convicted. From these judgments on the contempt charges Mayberry has filed the instant appeals.

Mayberry in his brief presents three contentions: (1) that he was denied the right to trial by jury on the contempt charges in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (2) that he was denied due process of law by being convicted and sentenced for criminal contempt without procedural safeguards; (3) that he has been subjected to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution in being sentenced to a minimum of eleven and a maximum of twenty-two years on the contempt charges. Mayberry’s appointed counsel in his brief raises the following issues: (1) that the court erred in failing to provide Mayberry with substantive constitutional safeguards by not apprising him of the nature and elements of the crime of criminal contempt, by not giving timely notice of the commission of criminal contempt, by not informing him of his right to counsel and in failing to provide him with counsel at the time of sentence; (2) that the statute providing for criminal contempt is unconstitutional as applied to the instant factual situation.

The contempt charges grew out of Mayberry’s conduct during the course of the trial where he acted as his own counsel. An examination of the record reveals a course of conduct on Mayberry’s part almost beyond belief and of an obviously and patently planned and determined attempt on Mayberry’s part to interfere with the administration of justice and to make a farce and mockery of his trial. Mayberry accused the trial judge of denying him a fair trial, called him a “hatchet man for the State” and a “dirty S. O. B.,” stated he would not “be railroaded into any life sentence by any dirty tyrannical old dog like [the judge],” told the trial court “to keep [his] mouth shut,” referred to the court as a “bum” and a “stumbling dog,” accused the court of working for the prison authorities and of conducting a Spanish Inquisition. He further told the judge that he was in need of psychiatric treatment and was “some kind of nut.” These few examples are indicative of Mayberry’s outrageous conduct during the course of the trial. Moreover, in open court, Mayberry stated his intention of disrupting the court’s charge to the jury and carried out his intention to such an extent that the court was finally forced to have him gagged, placed in a strait jacket and removed to an adjoining courtroom to which the charge to the jury was broadcast through a public address system. The record further demonstrates beyond any question that Mayberry’s behavior was calculated and planned with the aim of disrupting the orderly procedure of the trial and the administration of justice.

Right to Trial by Jury

In Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491 (1968), the United States Supreme Court held that the Constitution guaranteed the right to jury trial in serious criminal cases in state courts. In Bloom v. Illinois, 391 U.S. 194, 20 L. Ed. 2d 522 (1968), the Court was called upon to decide whether the Constitution guaranteed the right to a jury trial for a criminal contempt punished by a two-year prison sentence. Holding that “petty crimes need not be tried to a jury” and recognizing that the court had deemed it unnecessary under Dunoon to fix “the exact location of. the line between petty offenses and serious crimes,” the court held that a criminal contempt punishable by a two-year prison sentence constitutes a serious crime which entitles a defendant to the right to trial by jury and that it is constitutional error to deny the defendant such right. If Duncan and Bloom are presently applicable, Mayberry would be entitled to a jury trial on the contempt charges.

However, the United States Supreme Court, in DeStefano v. Woods, 392 U.S. 631, 20 L. Ed. 2d 1308 (1968), held that Duncan and Bloom “should receive-only prospective application.” Since Duncan and Bloom were decided in 1968 and since Mayberry’s trial took place in December, 1966, the rulings in Duncan and Bloom do not apply to Mayberry, and Mayberry is. not entitled to a trial by jury on the contempt charges.

Denial of Due Process

The contempt charges upon which Mayberry was sentenced constituted direct criminal contempts which took place in open court in the presence of the court and the jury. Punishment for direct criminal contempt may be inflicted summarily. See: Philadelphia Marine Trade Association v. International Longshoremen’s Association, 392 Pa. 500, 509, 140 A. 2d 814 (1958).

The Act of June 16, 1836, P. L. 784, §23, 17 P.S. §2041, provides, inter alia, as follows: “The power of the several courts of this commonwealth to issue attachments and to inflict summary punishments for con-tempts of court shall be restricted to the following cases, to wit: . . .

“III. To the misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.” In a direct criminal contempt, the court has the inherent power to protect its judicial dignity and conscience and to protect itself from insult and abuse. See: Aungst Contempt Case, 411 Pa. 595, 192 A. 2d 723 (1963). Section 24 of the Act of 1836, supra, provides: “The punishment of imprisonment for contempt as aforesaid shall extend only to such con-tempts as shall be committed in open court, and all other contempts shall be punished by fine only.” (17 P.S. §2042)

In Weiss v. Jacobs, 405 Pa. 390, 394, 395, 175 A. 2d 849 (1961), this Court said: “In In Re Oliver, 333 TT.S. 257, at 275-276, the United States Supreme Court stated: ‘due process of law, . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf either by way of defense or explanation. The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the Judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the Court. . . . and where immediate punishment is essential to prevent “demoralization of the Court’s authority” before the public. If some essential elements of the offense are not personally observed by the Judge, . . . due process requires, . . . that the accused be accorded notice and a fair hearing. . . .’” (Emphasis added)

The instant contempt charges arose out of the misconduct and misbehavior of Mayberry before the court and all the actions and utterances upon which these contempt charges were based took place in front of the trial judge. Under such circumstances, the court had plenary power to punish summarily for such contumacious conduct. To hold otherwise would be to offend the inherent powers of a court, particularly when the misconduct and misbehavior were as outrageous as that of Mayberry in the instant case.

We find no evidence under the circumstances of a violation of the constitutional due process requirements so far as Mayberry is concerned.

Did the Sentences Constitute Cruel and Unusual Punishment?

The court below imposed not one but eleven sentences, each based on a separate contemptuous act of Mayberry. Each sentence was for one to two years.

The instant record is replete with instance after instance of contumacious conduct on Mayberry’s part. Moreover, it is evident beyond question that such conduct was not only in defiance of the court and its dignity but was planned with a view to disrupting the orderly process of the trial and preventing and obstructing the proper administration of justice.

Under the instant circumstances, we conclude that the imposition of eleven one-to-two year sentences is not cruel and unusual punishment.

We now consider the several contentions made by Mayberry’s court-appointed appellate counsel in his separate brief on behalf of Mayberry.

Whether the Court Erred in Failing To Advise May-berry of the Nature and Elements of Criminal Contempt and That His Actions Amounted to Criminal Contempt

Mayberry’s counsel urges that it was the duty of the trial judge to warn Mayberry during the trial if and whenever his conduct became contemptuous, relying on Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680 (1942), Ogren v. Rockford Star Printing Co., 288 Ill. 405, 123 N.E. 587 (1919), and Sacher v. United States, 343 U.S. 1, 96 L. Ed. 717 (1952). We find nothing in these authorities which mandated that the trial judge in the instant case should have on each and every occasion warned Mayberry of his contemptuous conduct. The language and actions of Mayberry, even though he is a layman, were of such a nature that he had every reason to know that his conduct was in contempt of court; moreover, it is evident from this record that Mayberry’s conduct was part of a scheme and plan to disrupt and render chaotic the conduct of his trial. We see no reason, under the circumstances, why Mayberry on each and every occasion should have been warned of that of which he must have been fully aware. He knew that his conduct was outrageous and he deliberately planned such a course of conduct.

We find no merit in this contention.

Is the Act of 1836, Supra, Unconstitutional as Instantly Applied Because It Fails To Establish a Standard of Permissible Behavior and Because Its Terms Are Unclear and Indefinite?

We have carefully considered this contention of Mayberry’s counsel and find it absolutely without merit.

The instant case presents an example of a person charged with a criminal offense who deliberately, consciously and intentionally enters upon his trial proposing to so obstruct, by his language and his actions, the orderly trial process in order to thwart the administration of justice. Such conduct cannot and should not be tolerated. To hold otherwise is to make a mockery of criminal trials and to render our courts subject to infamy and abuse.

While at first blush the totality of the sentences imposed might seem harsh, yet in view of Mayberry’s conduct the severity of the sentences can be fully and completely justified. Mayberry was found guilty not only of criminal offenses but of having openly defied not only the court but the orderly process of law. As Mr. Justice Jackson said in Sacher v. United States, supra (343 U.S. at 5): “The nature of the deportment was not such as merely to offend personal sensitivities of the judge, but it prejudiced the expeditious, orderly and dispassionate conduct of the trial.”

Judgments of sentence affirmed.

Mr. Justice Cohen and Mr, Justice Eagen concur in the result.

Concurring Opinion by

Mr. Justice Roberts:

As to appellant’s claim that he was denied the right to a jury trial, I concur in the result reached by the majority solely on the ground that Bloom v. Illnois, 391 U.S. 194, 88 S. Ct. 1477 (1968), is not retroactive in application. See DeStefano v. Woods, 392 U.S. 631, 88 S. Ct. 2093 (1968).

Concurring and Dissenting Opinion by

Mr. Justice O’Brien :

I agree with the majority that Mayberry was not entitled to a jury trial. Even if Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477 (1968), applies to direct criminal contempts as well as indirect criminal contempts, which question I find it unnecessary to consider, Bloom has been held not to be retroactive. DeStefano v. Woods, 392 U.S. 631, 88 S. Ct. 2093 (1968). I thus concur in the affirmance of the contempt conviction.

However, I must dissent from that portion of the majority opinion which upholds the sentence imposed on Mayberry. Although appellate courts are naturally reluctant to interfere with the sentencing procedure, a matter within the discretion of the trial court, this Court has a duty to consider whether that discretion has been abused. Commonwealth v. Edwards, 380 Pa. 52, 110 A. 2d 216 (1955). The duty is particularly crucial in direct criminal contempt cases where no statutory limit is placed upon the trial judge’s discretion. Brown v. United States, 359 U.S. 41, 79 S. Ct. 539 (1959); Green v. United States, 356 U.S. 165, 78 S. Ct. 632 (1958).

I wish to emphasize that I hold no brief whatsoever for appellant’s utterly deplorable conduct and I sympathize with the trial judge for the indignities both he and the judicial system were made to suffer as a result of appellant’s conduct, Nonetheless, I believe that the sentence imposed here exceeded all bounds of reasonableness: While the court below treated each of appellant’s comments as a separate contempt and imposed eleven separate one to two year sentences to run consecutively, I think that a more realistic view of what occurred was that there was only one contempt — appellant’s trial conduct as a whole — and that for this he was given a sentence of eleven to twenty-two years. Cf. Yates v. United States, 355 U.S. 66, 78 S. Ct. 128 (1957).

My research discloses no case in which the punishment meted out even approaches that here. The majority quotes, as support for the sentence here, from Sacher v. United States, 343 U.S. 1, 5, 72 S. Ct. 451 (1952) : “The nature of the deportment was not such as merely to offend personal sensitivities of the judge, but it prejudiced the expeditious, orderly and dispassionate conduct of the trial.” Yet those held in contempt in Saeher were sentenced only to terms of up to six month’s imprisonment for a course of conduct that was as flagrant a defiance of the orderly processes of court as that involved here. Saeher and his fellows, inter alia: “Insinuated that there was connivance between the Court and the United States Attorney . . . Repeatedly made charges against the Court of bias, prejudice, corruption, and partiality . . . Made a succession of disrespectful, insolent, and sarcastic comments and remarks to the Court . . . [etc.].” United States v. Sacher, 182 F. 2d 416, 431 (2d Cir. 1950).

Although there is no doubt that the dignity of our courts must be upheld, by the contempt process, if necessary, in a Commonwealth where assault and battery is punishable by a maximum of two years’ imprisonment, larceny by a maximum of five, voluntary manslaughter by a maximum of twelve, rape by a maximum of fifteen, and second-degree murder by a maximum of twenty, a maximum sentence of twenty-two years for interference with the courtroom process and insults to the judge is cruel and unusual. I note that in Title Three of The Penal Code of 1939, entitled “Offenses against Public Justice and Administration”, of the thirty-one crimes enumerated, only two — perjury (seven years) and prison breach (ten years) carry a maximum sentence of more than five years. No crime in the category carries with it a penalty approaching the twenty-two years given appellant, and I must dissent from the imposition of that sentence. 
      
       The court appointed a representative of the Public Defender’s office to act as Mayberry’s consultant during trial.
     
      
       On March 19, 1968, a judgment of non pros, was entered because of Mayberry’s failure to file a brief, but on August 5, 1968, this Court removed the judgment of non pros, reinstated Mayberry’s appeal and appointed counsel to represent him in these appeals. Both Mayberry and his counsel have each filed separate briefs on Mayberry’s behalf.
     
      
       The Act of June 23, 1931, P. L. 925, §1, 17 P.S. §2047, provides for the due process requirements to which a defendant is entitled when charged with indirect criminal contempt. pels that we take with a grain of salt their present apologia that the [interrogation] . . . was conducted in a fair and dispassionate manner.” Id. Rather the police here seem to have been acting at least in part in appellant’s own interest, and in no way treated him other than humanely.
     