J-S40019-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: CONTEMPT OF COURT

APPEAL OF: RICHARD J. MCCAGUE

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1768 WDA 2018

Appeal from the Order Entered November 15, 2018

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-MD-0005473-2018

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 29, 2019

Richard J. McCague appeals from the order finding him in direct criminal 

contempt and ordering him to pay $4,847.02, the cost of a new trial. McCague

argues the trial court abused its discretion when it found him in contempt and 

that the sanction imposed for the contempt was excessive. We affirm.

The trial court set forth the factual and procedural history of this case, 

which we adopt and incorporate herein. Trial Court Opinion, filed Apr. 10, 

2019, at 2-9 (“1925(a) Op.”). We summarize the history briefly here. McCague 

represented Richard DeSabetino in a separate criminal matter. DeSabetino

had had numerous appointed counsel, and McCague entered his appearance 

as private counsel approximately two months before DeSabetino’s trial was to 

begin. N.T., 11/15/18, at 4-6. The court informed DeSabetino and McCague 

that the trial would not be continued, as four years had passed since the 

origination of the case. Id. at 6-7.
J-S40019-19

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Jury selection occurred on October 22, 2018, and the trial started the 

next day. Id. at 7-8. The Commonwealth called Amy Calabrese (“witness”), 

who lived with DeSabetino at the time of the incident at issue in DeSabetino’s 

case, and who was an eyewitness. Id. at 9. The Commonwealth conducted its 

direct examination. Id. After the direct, but before the cross-examination, 

McCague informed the court, “I do represent [the witness] on another case.” 

1925(a) Op. at 4.1 The court recessed. When it returned it stated that the 

issue is that McCague “represents – I believe that was said in the present 

tense – the Commonwealth’s main witness.” Id. McCague did not object or 

attempt to correct this statement. After further discussion, the trial court 

declared a mistrial. 

In October 2018, the trial court issued a rule to show cause as to why it 

should not hold McCague in contempt. The court held a hearing at which 

McCague claimed that Calabrese had only been a prospective client, and that

he had not agreed to represent her. N.T., 11/15/18, at 12-13. He claimed he 

met with her to discuss representing her at a Gagnon II2 hearing, but that 

he declined because she would not be able to pay him. Id. at 13. McCague 

also presented a letter that he allegedly sent to the witness informing her he 

____________________________________________

1 The transcripts from DeSabetino’s trial are not part of the record. McCague 

does not dispute the trial court’s recitation of the proceedings, and does not 

claim that the trial court incorrectly quotes or mischaracterizes the transcript 

from those proceedings. 

2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
J-S40019-19

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would be removing his name from the witness’s case. 1925(a) Op. at 7-8. The 

court found that the letter “was printed directly from [McCague’s] computer 

and could have been drafted at any point in time” and noted that “[t]here was 

no indication that it had ever been mailed.” Id. at 8.3 The trial court found 

McCague’s claim that the witness was a prospective client to be not credible. 

N.T., 11/15/18, at 20.

At the conclusion of the hearing, the trial court found McCague in direct 

criminal contempt, pursuant to 42 Pa.C.S.A. § 4132(3). The court found as 

facts that McCague committed misconduct before the court and that he acted

with intent to obstruct the proceedings:

[Y]ou have committed misconduct before this Court in how 

you handled this entire matter. That it was done with the 

intent to obstruct the proceedings, which I base in part on 

the fact that you knew all this and you never bothered to 

say anything until after the direct, the timing is very 

suspect. And I believe that it was your intent to obstruct the 

proceedings.

You had certainly mentioned off the record in the morning 

that more time could be appreciated because your client had 

mental illness, he had issues, which made me believe you 

might be seeking a continuance, which you weren’t going to 

be granted. What better way to get a continuance.

Also, your misconduct certainly obstructed the 

administration of justice and this trial had to be declared 

after a jury was selected, after 15 witnesses had to be

subpoenaed, after enumerable costs were incurred by the 

court. Therefore, sir, I do find you in criminal contempt.

____________________________________________

3 The letter also is not part of the certified record. 
J-S40019-19

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N.T., 11/15/18, at 21. It ordered that McCague pay the costs of the 

prosecution, which included the court costs and the cost of court-appointed 

counsel, for a total of $4,846.42. Id. at 26-28. McCague asked the court to 

allow him to pay the sanction over three months, and the court agreed. Id.

at 28-29. McCague filed a timely Notice of Appeal. 

McCague raises the following issues:

1. Was there direct criminal contempt in this case?

2. Was there indirect criminal contempt in this case?

3. Was there criminal contempt at all?

4. Was the fine excessive in this case?

McCague’s Br. at 2 (suggested answers and some capitalization omitted).

McCague first argues that the court erred in finding him in direct criminal 

contempt because he did not violate any court order. He further argues he did 

not intend to obstruct justice and therefore could not be found in direct 

criminal contempt under 42 Pa.C.S.A. § 4132(3).

Courts have the inherent authority “to impose summary punishment for 

contempt.” Commonwealth v. Moody, 125 A.3d 1, 9 (Pa. 2015). Subsection 

4132(3) of the Judicial Code provides, “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: . . . The 

misbehavior of any person in the presence of the court, thereby obstructing 

the administration of justice.” 42 Pa.C.S.A. § 4132(3). In sum, “courts have 

inherent power and statutory authority to impose summary punishment for 
J-S40019-19

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direct criminal contempt for willful misconduct that occurs in the presence of 

the court and obstructs its fair and orderly process.” Moody, 125 A.3d at 9. 

A court can impose a summary conviction for direct criminal contempt where 

it finds beyond a reasonable doubt that the individual “(1) committed 

misconduct; (2) in the presence of the court; (3) with the intent to obstruct 

proceedings, and (4) the misconduct actually obstructed proceedings.” 

Commonwealth v. Pruitt, 764 A.2d 569, 575 (Pa.Super. 2002). We will not 

disturb a trial court’s finding of contempt “absent an abuse of discretion.” 

Moody, 125 A.3d at 12 (quoting Commonwealth v. Baker, 766 A.2d 328, 

331 (Pa. 2001)).

The trial court found McCague’s explanation at the contempt hearing not 

credible. The court found “extremely suspect” the timing of the revelation that 

the witness was his client, that is, that he “did not raise the issue until after 

he received a preview of [the witness’s] testimony on direct-examination.” 

1925(a) Op. at 11-12. It noted that McCague included no qualifiers when he 

said, “I do represent Amy on another case,” and he remained silent when the 

court reiterated that the issue was that McCague actively represented the 

witness. Id. at 12. The court further found McCague’s explanation as to why 

the witness was not a client for a Gagnon II hearing, that is, because she

could not pay him, to be unpersuasive. Id. The court noted McCague agreed 

to represent DeSabetino without payment for a weeklong jury trial. Id. The 

court stated that it “remain[ed] steadfast in its belief that [the witness] was 

not only a prospective client.” Id. It noted that the witness was responsible 
J-S40019-19

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for generating the attorney-client relationship with DeSebetino and stated the 

court could “never know the genuine extent of their relationship or the nature 

of the conversations that were had.” Id. The court concluded that McCague 

“misbehaved by representing a major Commonwealth witness during the trial 

of a [d]efendant whom he represented,” that the misconduct was committed 

in the presence of the court, and that McCague “either knew or should have 

been aware that his conduct was wrongful,” and that the “misconduct actually 

obstructed the administration of justice because it resulted in the declaration 

of a mistrial.” Id. at 14. The court pointed out that McCague had told the court 

at the start of the trial that he would have “appreciated” more time before the 

start of the trial, and that the mistrial provided such time. Id. at 8, 12. 

We conclude the court did not abuse its discretion. After a review of the 

briefs, the relevant law, and the well-reasoned opinion of the Honorable Beth 

A. Lazzara, we adopt the trial court’s reasoning. Id. at 9-14. Because the trial 

court found McCague in direct criminal contempt and we find it did not abuse 

its discretion in doing so, we need not reach McCague’s next two issues—

whether indirect criminal contempt or any criminal contempt occurred.

In his final issue, McCague argues that the sanction was excessive. He 

claims this is so because the maximum penalty for a summary offense is 90 

days’ incarceration or a $300 fine. 

Pennsylvania courts have the power “to issue attachments and to 

impose summary punishments for contempts of court” where, among other 

things, “[t]he misbehavior of any person in the presence of the court . . .
J-S40019-19

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obstruct[s] the administration of justice.” 42 Pa.C.S.A. § 4132(3). “[T]he 

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. 

McCague claims that the maximum fine that the court could impose was 

$300. He, however, cites no authority to support this proposition, and we are 

aware of none. Furthermore, and contrary to McCague’s argument, the word 

“summary” in Section 4132 does not set the grading of direct criminal 

contempt, as McCague contends. Rather, it describes the procedures the court 

may employ to find direct criminal contempt and impose sanctions for such 

contempt. See generally Ricci v. Geary, 670 A.2d 190, 193 n.1 (Pa.Super. 

1996) (citing Commonwealth v. Stevenson, 393 A.2d 386 (Pa. 1978)). In 

any event, the sanction was not excessive. The transcript makes it clear that, 

in determining the amount of the sanction, the trial court used the actual costs 

of the proceedings that were declared a mistrial. The court referred on the 

record to the cost of: having the jury pulled; having the jury return the next 

day; the minute clerk, the tipstaff, and the court reporter for one-day; witness 

fees; and an appointed attorney for a non-homicide jury trial, and imposed 

the sum of those costs. This claim fails.

Order affirmed.
J-S40019-19

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/29/2019
COMMONWEALTH OF PENNSYLVANIA, 

v. 

RICHARD J. MCCAGUE, 

Defendant. 

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ec'No. 2018-5473 

OPINION 

BETH A. LAZZARA; JUDGE 

Court of Common Pleas 

Copies Sent To: 

Mike W. Streily, Esq. 

Office of the District Attorney 

401 Courthouse 

Pittsburgh, PA 15219 

Richard J. McCague, Esq . 

5500 Beverly Place 

Pittsburgh, PA 15206 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 
IN THE COURT OF COMMON PLEAS ALLEGHENY COUNTY, PENNSYLVANIA 

Following the Show-Cause Hearing held on November 15, 2018, the 

Respondent was found in Direct Criminal Contempt pursuant to 42 Pa. C.S. 

1 

OPINION 

This is a direct appeal from an order entered on November 15, 2018, 

finding the Respondent in Direct Criminal Contempt pursuant to 42 Pa. C.S.A. 

§4132(3). On October 31, 2018, a Rule to Show Cause was issued providing 

notice to the Respondent of the date and time of the Show-Cause Hearing, as 

well as the conduct that necessitated the hearing. Specifically, the Respondent 

was advised to "show just cause why he should not be found in Direct Criminal 

Contempt of Court pursuant to 42 Pa. C.S.A. §4132(3)" for "his actions of 

simultaneously representing a criminal defendant and a central 

Commonwealth witness during a criminal trial that began on October 23, 

2018, at CC# 2014-13014." 

MD: 2018-5473 

CRIMINAL DIVISION 

vs. 

Respondent. 

COMMONWEALTH OF PENNSYLVANIA, 

RICHARD J. MCCAGUE, 
§4132(3). The Respondent was fined $4,847.02, an amount reflecting the 

actual costs that were incurred as a result of the mistrial that he caused due 

to his misconduct. The fine was ordered to be paid in equal monthly 

installments over the course of three (3) months, with the first payment due 

thirty (30) days after sentencing. This appeal followed. 

On January 17, 2019, the Respondent filed a Concise Statement of 

Errors Complained of on Appeal ("Concise Statement"), challenging this 

court's finding of Direct Criminal Contempt. (Concise Statement, 1/17/19, pp. 

2-3). The Respondent argues that the court erred by proceeding with a charge 

of Direct Criminal Contempt, that the record lacked evidence to support such 

a finding, and that the fine imposed was "harsh and excessive." (Id.). The 

allegations of error lack merit. For the reasons that follow, the reviewing court 

respectfully should uphold the contempt finding and the sentence imposed. 

I. FACTUALBACKGROUND 

The contempt proceeding arose out of the trial in Commonwealth v. 

Richard DeSabetino, at CC No. 2014-13014, which began on October 23, 

2018. Respondent represented the Defendant at trial. The allegations against 

the Defendant involved a police chase that transpired after officers attempted 

to arrest the Defendant pursuant to an active warrant. One of the 

2 
Commonwealth's key witnesses, Amy Calabrese, (also known as Amy Fulford), 

was dating and residing with the Defendant at the time of the August 6, 2014 

incident. (Trial Transcript ("TT"), held 10/23/18, p. 74). Ms. Calabrese was 

one of two (2) people who witnessed the events leading up to the police chase, 

and the Commonwealth's opening argument referenced Ms. Calabrese's 

expected testimony. (TT, pp. 56-57, 60, 98). 

In his opening argument, the Respondent asked the jury to keep an 

open mind about the events leading up to the chase. (TT, p. 65). In conceding 

that a chase did occur, the Respondent argued that "[t]he question is how 

does [the Defendant] get to be there and what led him to that position." (Id.). 

"We believe, we sincerely believe, that we are going to be able to show you 

how he got to that position, and I think you will be able to understand that 

that makes him not guilt[y] of a great many things." (Id.). Later in his 

opening, the Respondent again referenced the importance of the sequence of 

events leading up to the chase and how the conduct of the police officers 

"contributed to the problem" that day. (TT, p. 67). 

Ms. Calabrese was called as the Commonwealth's first witness. She 

completed her direct examination before the lunch recess. (TT, pp. 68-95). 

After the jury was led out of the room, the Respondent informed the court of 

3 
a matter he wished to bring to its attention. (TI, p. 96). The Respondent then 

stated that he did not "anticipate this being a problem," but that he wanted 

to make the court aware that he represents Ms. Calabrese on a different case. 

(TI, p. 96). The Respondent's exact words were, "I do represent Amy on 

another case." (TI, p. 96). Incredulous at his admission that he actively 

represents an important Commonwealth witness, the court asked whether he 

learned of Ms. Calabrese's involvement in this case through discovery. (TI, 

p. 96). The Respondent replied, ''[i]t's how I got to this client, Your Honor." 

(Id.). The court recessed for lunch and spent the following hour researching 

the issue and deliberating about how to proceed. 

After lunch, but before the jury returned to the courtroom, the court 

summarized its understanding of the issue as the Respondent actively 

representing Ms. Calabrese in a separate case during his representation of the 

Defendant. (TI, pp. 97-102). The following exchange took place: 

The Court: . . I think it's reflected on the record, an offhand 

remark was made by [the Respondent] about the fact that he 

didn't think it was a big deal, but that he represents - - I 

believe that was said in the present tense - - the 

Commonwealth's main witness who has testified so far Amy 

Fulford . .. 

* * * 

The Court: You know, Mr. Mccague, you don't think it's a big deal. 

This is a huge deal, okay. This is one of two witnesses to the start 

of this entire interaction, which you already told the jury is going 

to be the main crux of your defense. The start of this interaction 

4 
is going to the main crux of your defense, and you represent one 

of the Commonwealth's two witnesses that can testify as to the 

start of that defense. 

Mr. McCauge: Yes, Your Honor. 

The Court: And you didn't reveal it at any time up until this point. 

You got involved in this case about a month ago. You didn't reveal 

it at that point in time, let alone the fact --let's make sure the 

record is clear - you also indicated that this is how you got 

involved in the case, is through Ms. Amy Fulford. Is that correct? 

Mr. Mccague: I believe that is correct, You Honor. 

The Court: Okay. So you get involved in the case because of your 

representation of her. You get involved in the case a month ago. 

You don't tell this Court, which would have been a nice thing to 

do. We actually had a hearing before Mr. Walker was let out of 

this case to make sure that you understood the parameters of this 

case, which was that it would not be postponed, it would proceed, 

that this Court would not appoint another attorney. [The 

Defendant] had his last one with Mr. Walker. 

At no time did you ever make clear to this Court that you had an 

interest in the Commonwealth's witness; at no time. I am 

assuming, Ms. Robb, that at no time was it made clear to you in 

any way, shape, or form that Mr. McCague represented your 

witness. 

Ms. Robb: That's correct, Your Honor. 

The Court: So now we are ready to do cross-examination of this 

witness. I don't know what this witness - what you concocted with 

this witness that - 

Mr. Mccague: Your Honor, I haven't - 

The Court: Mr. Mccague, I don't know that. That's the problem. I 

could ask her a million times under oath, I could ask you a million 

times under oath, I could ask Mr. DeSabetino a million times under 

oath at this point and nobody would tell me the truth. I have no 

idea whether there is something being concocted for crossexamination. I have no idea whether you will effectively crossexamine her on behalf of Mr. DeSabetlno, because you have a 

prior relationship with her. You may not go after her aggressively 

for fear of hurting any of the cases that she currently has. How 

can I be assured that you will give Mr. DeSabetino his due? At this 

5 
point, I cannot be sure of that. Mr. DeSabetino cannot be sure of 

that. Again, I can ask you, I could ask him, I could ask her and 

still, I don't know. That's the position you have put this Court in 

at this point in time on a case that has been sitting here since 

2014. On a case that has a difficult defendant involved, who, if he 

is convicted, I have no doubt will take full advantage of his 

appella[te] righs and his PCRA rights, and you have just created 

a PCRA issue for [p]otential Ineffective Assistance of Counsel. 

We cannot tell whether or not you will effectively cross-examine 

her, because she is also your client. And one of only two 

Commonwealth witnesses that can talk about how this entire 

matter started, which is the crux of your defense. You see where 

there is a problem, Mr. Mccague? 

Mr. Mccague: Yes, Your Honor. I see there's a problem. I did get 

waivers from both parties. I thought that would cover it. 

The Court: First of all, none of us are aware of this situation. You 

can say you have waivers, but again, since this sprung on the 

Court at the point where she has already done her direct, did you 

think you might want to tell us about this before we started the 

case? Did you think that perhaps that would have been the most 

appropriate means to handle this That's not a rhetorical question. 

That's a real question that demands an answer. 

Mr. Mccague: It certainly would have been, Your Honor. 

The Court: At this point, I don't believe that I have any choice but 

to declare a mistrial.You will now be removed from this case . .. 

(TT, pp. 97-102) (emphasis added). 

At no point during that exchange did the Respondent object to the 

characterization that he actively represented Ms. Calabrese. (TT, pp. 96-102). 

After declaring the mistrial, the court recused itself from the case and 

informed Mr. Mccague that he was no longer welcome in its courtroom. (TT, 

p. 102). 

6 
After providing sufficient notice to the Respondent, a contempt hearing 

was held on November 15, 2018. (Contempt Hearing Transcript ("HT"), held 

11/15/18). The court summarized the history of the underlying case, as well 

as the Respondent's conduct which gave rise to the contempt hearing. (HT, 

pp. 3-11). Despite his statement, "I do represent Amy on another case" made 

at the time that he initially disclosed the issue, the Respondent indicated for 

the first time that Ms. Calabrese was only a prospective client who had never 

retained him. (HT, pp. 12-13). When questioned why he did not attempt to 

explain that she was only a prospective client before the declaration of the 

mistrial, the Respondent apologized, claimed that he had "misspoke" and 

insisted that he had never formally represented her. {HT, pp. 13-19). 

The Respondent then presented a "discontinuation letter" dated July 

13, 2018, that he purportedly sent to Ms. Calabrese informing her that he was 

not taking her case because she could not pay him. {HT, pp. 12-14, 17). The 

substance of the letter is as follows: 

Dear Amy, I have spoken with Dave at the phone number that you 

gave me and he insisted that there was no money coming forth. He said 

that the "few dollars" that you have were already gone and you didn't 

have any money for me. He also insisted that he didn't have any 

information from you that I was to get anything. 

7 
I am taking him at his word, and I will not be calling him anymore. 

This means, however, that you cannot pay me and that you probably 

knew that all along. He is not a source for paying me. 

I will be filing to remove my name from your case. I do not know 

what else to do. I will not tell either Judge Borkowski, nor his secretary 

why. 

("Discontinuation Letter" - dated July 13, 2018). 

The letter, however, was printed directly from the Respondent's 

computer and could have been drafted at any point in time. (HT, pp. 17, 25). 

There was no indication that it had ever been mailed. (HT, pp. 17, is). In light 

of all the circumstances, the court did not find the Respondent's explanation 

of the matter to be credible. Instead, the court focused on his statements and 

conduct at the time his initial disclosure was made. (HT, pp. 14, 17, 20, 24- 

25). Accordingly, the court found the Respondent in Direct Criminal Contempt 

pursuant to 42 Pa. C.S. 4132(3), and stated the following: 

And I make that specific finding, that you are in criminal contempt. That 

you have committed misconduct before this Court in how you handled 

this entire matter. That it was done with the intent to obstruct the 

proceedings, which I base in part on the fact that you knew all this and 

you never bothered to say anything until after the direct, the timing is 

very suspect. And I believe that it was your intent to obstruct the 

proceedings. You had certainly mentioned off the record in the morning 

that more time could be appreciated because your client had mental 

illness, he had issues, which made me believe you might be seeking a 

continuance, which you weren't going to be granted. What better way 

to get a continuance. Also, your misconduct certainly obstructed the 

administration of justice and this [mis]trial had to be declared after a 

jury was selected, after 15 witnesses had to be subpoenaed, after 

enumerable costs were incurred by the court. Therefore, sir, I do find 

you in criminal contempt. 

8 
(HT, pp. 20-21). 

Prior to the imposition of sentence, the court ensured that the 

Respondent did not want to proceed with the assistance of an attorney. (HT, 

p. 22). The court then fined the Respondent $4,847.02, to reflect the amount 

of court costs incurred by Allegheny County as a result of the mistrial. {HT, 

pp. 26-29). 

II. DISCUSSION 

A. This court properly proceeded with a charge of Direct Criminal 

Contempt and its contempt finding is supported by the record. 

"When reviewing a contempt conviction, much reliance is given to the 

discretion of the trial judge. Accordingly, [the reviewing court is] confined to 

a determination of whether the facts support the trial court decision." Williams 

v. Williams, 681 A.2d 181, 183 (Pa. Super. 1996), affirmed, 721 A.2d 1072 

(Pa. 1998). "A trial court's finding of contempt will not be disturbed absent an 

abuse of discretion." Commonwealth v. Moody, 125 A.3d 1, 12 (Pa. 2015) 

(internal quotations and citations omitted); Ricci v. Geary, 670 A.2d 190, 191 

(Pa. Super. 1996) ("We will reverse a trial court's determination only when 

there has been a plain abuse of discretion."). "In cases of direct criminal 

contempt, that is, where the contumacious act is committed in the presence 

9 
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, 532 A.2d 28, 31-32 (Pa. 

Super. 1987). 

Contrary to the Respondent's argument, his conduct was actionable as 

a Direct Criminal Contempt as opposed to Indirect Criminal Contempt, 

because Indirect Criminal Contempt occurs only when there is a "violation of 

a court order that occurred outside of the court's presence." Commonwealth 

v. McMullen, 961 A.2d 842, 849 (Pa. 2008). The contempt proceeding in this 

case properly was initiated pursuant to 42 Pa. C.S.A. § 4132(3), which 

empowers the court to impose summary punishment for "misbehavior of any 

person in the presence of the court, thereby obstructing the administration of 

justice." A summary conviction for Direct Criminal Contempt under §4132(3) 

requires a finding beyond a reasonable doubt that the individual "(1) 

committed misconduct, (2) in the presence of the court, (3) with the intent to 

obstruct the proceedings, and ( 4) [the] misconduct actually obstructed the 

administration of justice." Commonwealth v. Pruitt, 764 A.2d 569, 575 (Pa. 

Super. 2000). 

10 
Our Supreme Court has explained that "a subjective intent to obstruct 

the administration of justice is not a requisite element of criminal contempt." 

Commonwealth v. Owens, 436 A.2d 129, 133 (Pa. 1981). "The requisite 

element of intent is satisfied if the contemnor had the intent to obstruct the 

proceedings. When that intent manifests itself in misconduct in the presence 

of the court which . . in fact obstructs the administration of justice, criminal 

contempt has been committed." Owens, supra, at 133. "There is wrongful 

intent if the contemnor knows or should reasonably be aware that his conduct 

is wrongful." In re Adams, 645 A.2d 269, 272 (Pa. Super. 1994) (internal 

citations omitted). "It does not matter that appellant was acting in good faith 

by zealously defending his client." Id. at 272. 

This court did not abuse its discretion in finding the Respondent in Direct 

Criminal Contempt pursuant to §4132(3). Simply put, this court did not find 

the Respondent's explanation at the contempt hearing, or the self-serving 

discontinuation letter he offered, to be credible considering the totality of the 

circumstances. 

First, the court found the timing of the revelation regarding his 

relationship with Ms. Calabrese to be extremely suspect. (HT, p. 18). Indeed, 

the Respondent had let the court know at the beginning of trial that he would 

11 
have appreciated having more time on the case. (HT, p. 21). Then, despite 

having ample opportunity to notify the court of the issue prior to the beginning 

of trial, the Respondent did not raise the issue until after he received a preview 

of Ms. Calabrese's testimony on direct-examination. {TT, p. 96); (HT, pp. 18- 

19). When the Respondent did bring the matter to the court's attention, the 

first statement he uttered was, "I do represent Amy on another case." {TT, p. 

96). There were no qualifiers attached. Even when the court came back from 

lunch and reiterated that the issue involved the Respondent's active 

representation of the witness, he remained silent and did not seek to clarify 

that Ms. Calabrese had been a prospective client only. {TT, pp. 96-102); {HT, 

p. 15). The Respondent's statements and conduct at the time of the disclosure 

were what this court found to be the most credible. (HT, pp. 14, 17, 20, 24- 

25). 

Second, the Respondent's explanation for why Ms. Calabrese remained 

only a prospective client was because she could not afford to hire him for a 

Gagnon II Hearing. (HT, p. 14-15). However, this explanation was not at all 

persuasive given that he had agreed to represent Mr. DeSabetino without any 

hope of payment for a week-long jury trial involving serious charges. (HT, p. 

15). 

12 
The court remains steadfast in its belief that Ms. Calabrese was not 

simply a prospective client. In any event, Ms. Calabrese was responsible for 

generating his attorney-client relationship with the Defendant, and this court 

can never know the genuine extent of their relationship or the nature of the 

conversations that were had. That is why this court believed that any hearing 

into that matter would have been futile. A hearing would have been an 

inadequate gauge of the psychological component involved with respect to the 

potential for Ms. Calabrese to subconsciously alter her testimony in response 

to questioning by the Respondent, especially when she was the one who had 

arranged for his representation of the Defendant. 

Pursuant to Rule 1. 7 of the Rules of Professional Conduct, "a lawyer shall 

not represent a client if the representation involves a concurrent conflict of 

interest." A concurrent conflict of interest exists if "there is a significant risk 

that the representation of one or more clients will be materially limited by the 

lawyer's responsibilities to another client, a former client, or a third person or 

by a personal interest of the lawyer." Rule 1.7(a)(2) of R.P.C. 

"Notwithstanding the existence of a concurrent conflict of interest under 

paragraph (a), a lawyer may represent a client if the lawyer reasonably 

believes that the lawyer will be able to provide competent and diligent 

representation to each affected client." Rule 1.7(b)(l). 

13 
The court found that the Respondent misbehaved by representing a 

major Commonwealth witness during the trial of a Defendant whom he 

represented. At the contempt hearing, the court explained the problem as 

such: 

When this kind of behavior happened, Mr. DeSab[e]tino wasn't going to 

be given a fair shot. You have knowledge of Ms. Calabrese that makes 

it hard to cross-examine her at that point in time. Is Ms. Calabrese going 

to be given a fair shot? Are you going to use things that she told you in 

order to get a leg up for Mr. DeSab[e]tino? That's why we never proceed 

this way, so that those people who come in here can believe that the 

court system is fair and is working to the best of its ability on their 

behalf[]. And that is not what you did. It is not what you did. 

(HT, p. 24). 

The Respondent's misconduct was committed in the presence of the 

court, and the Respondent either knew or should have been aware that his 

conduct was wrongful. His misconduct actually obstructed the administration 

of justice because it resulted in the declaration of a mistrial. Accordingly, there 

is sufficient evidence to sustain the Respondent's direct criminal contempt 

conviction under §4132(3), and the court respectfully requests that the 

conviction be upheld. 

14 
B. The fine was reasonable and was imposed after a 

determination of the Respondent's financial ability to pay. 

Pursuant to 42 Pa. C.S.A. § 4133, the Respondent was fined only for the 

actual costs associated with the mistrial that he caused because that amount 

was sufficient to address his misconduct. In imposing a fine, the court 

conducted an inquiry into the Respondent's ability to pay and whether such a 

fine would pose any undue financial hardship. {HT, pp. 26-29). The court 

offered to accept a payment plan, and it allowed the Respondent to dictate 

the terms of that payment plan. {HT, p. 28). The Respondent never indicated 

that he would be incapable of paying the fine or that any such fine would cause 

any undue hardship. {HT, pp. 28-29). He simply said, "I'll deal." {HT, p. 29). 

Accordingly, the fine in this case was not unduly harsh or excessive and was 

narrowly tailored to address the specific misconduct in this case. 

15 
III. CONCLUSION 

The court properly characterized the Respondent's misconduct as a 

Direct Criminal Contempt under 42 Pa. C.S.A. § 4132(3), there was sufficient 

evidence to support the contempt finding, and the sentence imposed was 

reasonable under the circumstances. 

BE 

DATE 

16 

e.