J-A30021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARVIN HENSON

Appellant No. 2013 EDA 2014

Appeal from the Judgment of Sentence January 27, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-MD-0010666-2013

BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

MEMORANDUM BY JENKINS, J.: FILED December 24, 2015

Appellant Marvin Henson appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas following his 

bench trial convictions for robbery, burglary, criminal mischief, criminal 

trespass, theft by unlawful taking, receiving stolen property, simple assault, 

and summary criminal contempt.1 We reverse and vacate Appellant’s 

conviction for summary criminal contempt.

The trial court set forth the underlying facts of this appeal as follows:

On October 20, 2012, Makial D. Pryor-Hand [(“Victim”)] 

was inside his home located at 7310 Elmwood Avenue, in 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 This appeal only relates to Appellant’s conviction and judgment of sentence 

for criminal contempt, 42 Pa.C.S. § 4132(3). Appellant challenges his other 

convictions in a separate appeal, docketed at 1967 EDA 2014.
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Philadelphia, Pennsylvania. N.T.[,] 10/25/2013[,] at 11. 

Sometime between 10:45 and 11:30 p.m., while [Victim] 

was in the basement of his home, he heard the front door 

to the home open, and then heard footsteps on the floor 

above him. Id. at 11-12. He proceeded up the basement 

steps to investigate. Id. at 13. There, he witnessed 

[Appellant] standing in his living room. Id at 13-14. 

[Victim] did not know [Appellant]; nor did he give him 

permission to enter his home. Id. at 32.

[Appellant] then pushed and punched [Victim] and a 

physical altercation ensued, breaking both a dining room 

table and a mirror hanging on the wall. Id. at 15. 

[Appellant] then grabbed [Victim’s] head and pressed his 

thumbs into his eyes. Id. [Victim] fought off [Appellant] 

and escaped, first to the basement of the home, then to a 

nearby convenience store in search of help. Id. at 16. 

After returning to the home while the police were present, 

[Victim] discovered that a 32-inch Vizio television set, a 

tan and blue workbag, a cell phone, and his mother’s 

pocketbook were all missing from the home. Id. at 31. 

Also, a brown bag with liquor and a 7-11 slurpee cup were 

found in the home, neither of which belonged to [Victim]. 

Id. at 20.

On the same night as the incident, [Victim’s] neighbor, 

Martha White ([]“Ms. White”) heard “scuffing” on the wall 

that separates the two homes and her dogs began to bark. 

Id. at 48 - 49. Ms. White went outside to investigate, 

walked to [Victim’s] home and looked into his home 

through the open front door. Id. at 50. There, she 

witnessed a person “throwing stuff like a madman, tossing 

stuff from side to side all over the place” inside [Victim’s] 

home. Id. at 50. Shortly thereafter, Ms. White then saw a 

male exiting [Victim’s] home carrying a flat screen 

television and a tan bag. Id. at 51. Later that same night, 

[Appellant] was observed by police walking on the street 

carrying a 32-inch Vizio television set with blood on his 

wrist and forehead. Id. at 59.

[Appellant] testified at trial that he did, in fact, take the 

television set and the tan bag from [Victim’s] home 

without permission. Id. at 87. Swabs taken by police from 

the second floor hallway, first floor living room, the 32-
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inch television, and from the 7-11 cup found in the home 

matched [Appellant’s] DNA profile with a reasonable 

degree of scientific certainty. Id. at 66. [Victim] later 

identified [Appellant] in photographs and in a video shown 

to him by police as the man who attacked him inside his 

home. Id. at 28.

During his testimony, [Appellant] described sexual activity 

with an alleged prostitute, which he claimed took place the 

night of the robbery. Id. at 760-91. The testimony’s 

purpose was, ostensibly, to establish an alternative, 

permissible reason why [Appellant] was inside [Victim’s] 

home other than to accomplish the theft. [Appellant] 

alleged that he and a prostitute, whom he had just met 

that night, could not determine a suitable location to have 

sex. He claimed that the prostitute then spotted [Victim] 

walking on the street – whom she did not previously know 

– approached him, and requested the use of his home for 

her and [Appellant] to have sex. Id. at 80-81. 

[Appellant] claimed that [Victim] agreed, for only $25, to 

allow the two complete strangers inside his home for the 

purpose of sex. Id. [Appellant] also alleged that [Victim] 

was more than hospitable, in that he not only provided a 

couch for the two strangers to have sex, but also turned 

on a Brazilian pornographic movie for them, and served 

drinks. Id. at 81-82. The alleged prostitute did not 

testify.

[Appellant] then depicted the sexual activity with the 

prostitute and its aftermath, which consisted of profane 

language (the “F word,” for example, was voiced four 

times[2](Id. at 79, 85, 86)); what can only be described 

____________________________________________

2 Appellant did use the “F” word as the court noted, and the court was 

obviously offended. The court first objected to Appellant’s language on page 

86, when it stated “You have to stop – stop with the language. Okay? Have 

some respect for the court.” Appellant said, “My apologies.” He then 

omitted the “F” word from his testimony and used “heck” and “I got mad.” 

The court did not object again to Appellant’s language until he uttered the 

next bad word, “bullshit.”

THE COURT: ...I find you guilty on all charges.

(Footnote Continued Next Page)
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as peculiar slang for lewd aspects; and various, explicit 

details so obscene and sordid that decorum prohibits 

listing them here. Id. at 82-86.[3] While [Appellant] 

testified in this manner, spectators were motivated to 

leave the courtroom. N.T. 1/27/14 at 23. The court twice 

interrupted his testimony and asked [Appellant] to rein in 

the (vulgar) details (N.T. 10/25/13 at 83), stop with the 

(Footnote Continued) _______________________

[APPELLANT]: Oh, that’s some bullshit.

THE COURT: Excuse me? You want to be in contempt?

[PROSECUTOR]: Yeah, Judge. I would ask that you hold 

the defendant in contempt, not only for what – the 

outburst—

THE COURT: You are in contempt –

[PROSECUTOR]: but for the way he treated the court 

during his testimony.

[DEFENSE COUNSEL]: Your Honor, for the contempt 

hearing, I’m not prepared for that.

THE COURT: Okay. We’ll bring him back for it then. We’ll

do a PSI. You’re in contempt of court. We’ll have a 

contempt hearing at the time of the PSI.

N.T., 10/25/13, at 107-108.

3 Again, the court was obviously offended, but it seems Appellant was trying 

to explain why he was not in the same room as his pants (because he was 

getting a rag to clean the couch because the girl spit on it) when Victim stole 

his money, which provoked him to fight and steal his TV, which he otherwise 

would not have done. The court cut him off and stated “I don’t think we 

need all these details. I’m letting the details get a little too far already. Just 

get to the -” N.T. at 83. This took place before the court specifically 

objected to Appellant’s language. Appellant then continued his story without 

any more sexual details.
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language, and to have some respect for the court. Id. at 

86.[4]

According to [Appellant], after the sexual encounter, he 

noticed money missing from his pants. Id. at 84. He 

stated that he blamed [Victim] for the missing money and 

that the missing money was the catalyst for the physical 

altercation. Id. at 85-86. [Appellant] further alleged that, 

after the physical altercation, he removed items, including 

the television set from [Victim’s] home as reimbursement 

for his missing money. Id. at 87. 

Following the court’s verdict, [Appellant] exclaimed that 

the verdict was “some bull**t.” Id. at 107. Based on 

[Appellant’s] lewd manner of testimony and his outburst 

following the verdict, the court found him in contempt. Id.

* * *

[Appellant] requested and was granted a waiver of a jury 

trial. The bench trial occurred before the Honorable Sean 

F. Kennedy on October 25, 2013. Based on the evidence 

and testimony, [Appellant] was found guilty of Robbery 

(18 [Pa.C.S.] §3701(a)(1)(iv)), Burglary (18 [Pa.C.S.] 

§3502 (c)(1)), and Simple Assault (18 [Pa.C.S.] 

§2701(a)). On January 27, 2014, [Appellant] was 

sentenced to one to two years for robbery, four to eight 

years for burglary, and received no further penalty for the 

simple assault. All sentences were to run consecutively for 

a total of five to ten years. The court also found 

[Appellant] in contempt for disrespecting the court and its 

proceedings and sentenced him to five (5) months and 29 

days [of incarceration]. 42 [Pa.C.S.] § 4132(3). 

____________________________________________

4 We note that the court additionally warned the prosecutor regarding her 

language. After the prosecutor referred to the woman as a “hooker” four 

times, the court said, “Can we call her a prostitute, please?” N.T. at 90. 

After the prosecutor said “bang her” three times, the court said “Let’s – let’s 

–” and the prosecutor curbed her language. N.T. at 91. After the 

prosecutor said “you’re pissed at him,” the court said, “Counsel.” N.T. at 91. 

These incidents took place during cross-examination, after Appellant had 

been warned about his language.
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Supplemental Trial Court Opinion, filed January 16, 2015, at 1-4.5

On February 5, 2014, Appellant filed a post-sentence motion to vacate 

the verdict or modify the sentence. On June 5, 2014, Appellant’s postsentence motion was denied by operation of law. On June 20, 2014, 

Appellant timely filed a notice of appeal. On December 1, 2014, the court 

ordered Appellant to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on December 

11, 2014.

Appellant raises the following issues for our review:

1. WAS NOT THE EVIDENCE INSUFFICIENT TO FIND, 

BEYOND A REASONABLE DOUBT, THAT APPELLANT WAS 

GUILTY OF CONTEMPT IN VIOLATION OF 42 [PA.C.S.] § 

4132(3), THE PROVISION OF THE CONTEMPT STATUTE OF 

WHICH APPELLANT WAS CONVICTED, IN THAT THE 

EVIDENCE FAILED TO SHOW THAT ACTUAL OBSTRUCTION 

OF THE ADMINISTRATION OF JUSTICE OCCURRED AS THE 

RESULT OF APPELLANT’S CONDUCT, OR THAT APPELLANT 

INTENDED TO OBSTRUCT THE ADMINISTRATION OF 

JUSTICE BY HIS CONDUCT?

2. WAS NOT THE FINDING OF CONTEMPT IMPROPER 

WHERE THE CONDUCT UPON WHICH THE FINDING WAS 

PREDICATED WAS PROTECTED BY APPELLANT’S 

FUNDAMENTAL CONSTITUTIONAL RIGHT OF FREE SPEECH 

AND HIS FUNDAMENTAL RIGHT TO TESTIFY ON HIS OWN 

BEHALF AT TRIAL?

3. WAS NOT THE FINDING OF CONTEMPT IMPROPER 

WHERE APPELLANT WAS DEPRIVED OF BASIC DUE 

____________________________________________

5 The trial court filed an opinion on November 3, 2014, regarding Appellant’s 

appeal of his robbery conviction at 1967 EDA 2014. 
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PROCESS RIGHTS PRIOR TO THE CONTEMPT AT THE 

CONCLUSION OF HIS TRIAL ON THE UNDERLYING 

CHARGES WITHOUT AN EVIDENTIARY HEARING ON THE 

CONTEMPT CHARGE, AND IN THE ABSENCE OF ANY 

NECESSITY FOR AN IMMEDIATE FINDING OF CONTEMPT: 

THE “HEARING” PROCEDURE HELD AT SENTENCING 

OCCURRED AFTER THE COURT HAD ALREADY ENTERED 

ITS VERDICT, AND IN ANY EVENT, DID NOT INCLUDE THE 

PRESENTATION OF EVIDENCE OR OF WITNESSES, AND 

LACKED ANY OPPORTUNITY FOR APPELLANT TO TESTIFY 

ON HIS OWN BEHALF AS WELL AS ANY OF THE 

PROCEDURAL REQUIREMENTS OF A TRIAL?

Appellant’s Brief at 4.

In his first issue, Appellant challenges the sufficiency of the evidence 

for his contempt conviction. He claims that he did not deliberately 

misbehave or deliberately offend the court.6 He claims the evidence did not 

establish actual obstruction of the administration of justice occurred as a 

result of Appellant’s conduct, and that Appellant did not intend to obstruct 

the administration of justice. He argues that the interruption of the 

proceedings was momentary, and not a significant disruption. He concludes 

that, because he did not disrupt the administration of justice, his conduct 

does not fall within the limited categories for which the court has the 

authority to impose summary criminal contempt of court, and that his 

sentence for contempt must be vacated. We agree.

____________________________________________

6 Appellant further contends that the word “bullshit” is not an obscenity or 

profanity; it is merely vulgar slang that “labels something that the speaker 

does not like and feels he is unable to change.” Appellant’s Brief at 14.
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We note initially that trial courts in Pennsylvania have an inherent 

power to impose summary punishment for contempt of court. This power is 

set forth in the Judicial Code, which provides:

§ 4132. Attachment and summary punishment 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. § 4132.

Our standard of review is as follows:

“When reviewing a contempt conviction, much reliance is 

given to the discretion of the trial judge. Accordingly, we 

are confined to a determination of whether the facts 

support the trial court’s decision.” Williams v. Williams,

681 A.2d 181, 183 ([Pa.Super.]1996), aff'd, 721 A.2d 

1072 ([Pa.]1998). “‘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.’” Ricci v. Geary, 670 A.2d 190, 191 

([Pa.Super.]1996) (quoting Commonwealth v. Jackson,

532 A.2d 28, 31 ([Pa.Super.]1987)).

Commonwealth v. Pruitt, 764 A.2d 569, 573-74 (Pa.Super.2000).

However, 
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“Whether sufficient evidence exists to support the verdict 

is a question of law; thus, [an appellate court’s] standard 

of review is de novo and [its] scope of review is plenary.” 

Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa.2014) 

cert. denied sub nom. Patterson v. Pennsylvania, 135 

S. Ct. 1400 (2015). When examining a challenge to the 

sufficiency of evidence, we employ the following standard:

The standard we apply in reviewing the sufficiency of 

the evidence is whether viewing all the evidence 

admitted at trial in the light most favorable to the 

verdict winner, there is sufficient evidence to enable 

the fact-finder to find every element of the crime 

beyond a reasonable doubt. In applying [the above] 

test, we may not weigh the evidence and substitute 

our judgment for the fact-finder. In addition, we note 

that the facts and circumstances established by the 

Commonwealth need not preclude every possibility 

of innocence. Any doubts regarding a defendant’s 

guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a 

matter of law no probability of fact may be drawn 

from the combined circumstances. The 

Commonwealth may sustain its burden of proving 

every element of the crime beyond a reasonable 

doubt by means of wholly circumstantial evidence. 

Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the [trier] of 

fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to 

believe all, part or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal 

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874 

A.2d 108, 120-21 (Pa.Super.2005)).
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“To sustain a conviction [for summary criminal contempt] pursuant to 

section 4132(3) ... it must be established beyond a reasonable doubt that 

Appellant (1) committed misconduct, (2) in the presence of the court, (3) 

with the intent to obstruct the proceedings, and (4) Appellant’s misconduct 

actually obstructed the administration of justice.” Pruitt, 764 A.2d at 575 

(citing Behr v. Behr, 695 A.2d 776, 779 (Pa.1997)).

Summary contempt adjudication is appropriate only when the conduct 

occurred in the judge’s presence:

Where a court acts immediately to punish for 

contemptuous conduct committed under its eye, the 

contemnor is present, of course. There is then no question 

of identity, nor is hearing in a formal sense necessary 

because the judge has personally seen the offense and is 

acting on the basis of his own observations.

Commonwealth v. Moody, 46 A.3d 765, 772-73 (Pa.Super.2012) (citation 

omitted).

To obstruct justice, conduct must significantly disrupt

proceedings. In re Campolongo [,435 A.2d 581 

(Pa.1981)]. We noted in Commonwealth v. Garrison,

386 A.2d 971 ([Pa.]1978) (plurality opinion), that 

contempt requires actual, imminent prejudice to a fair 

proceeding or prejudice to the preservation of the court’s 

orderly procedure and authority. “Remarks that are 

injudicious, or even disrespectful, will not, without more, 

justify a summary conviction for contempt of court.” 

Campolongo, 435 A.2d at 584.

Williams v. Williams, 721 A.2d 1072, 1074 (Pa.1998).

Here, Appellant complied with the court when it asked him to watch 

his language during his testimony and to make the details of his sexual 
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encounter less explicit. Appellant apologized for his language and stopped 

using the “F” word after the court warned him. Further, by uttering the 

word “bullshit” upon hearing the verdict, Appellant likely intended to express 

his displeasure as opposed to disrupt the proceedings. Even if Appellant 

intended to disrupt the proceedings with his word, he did not actually 

obstruct the administration of justice. See Pruitt, supra. Because the 

facts of record do not support the court’s determination, the court abused its 

discretion in finding Appellant in contempt of court.

Due to the disposition of Appellant’s first issue, we need not address 

his other claims.

Appellant’s conviction for summary criminal contempt reversed and 

vacated.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/2015