J. S37043/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

AQUIL JOHNSON, : No. 2478 EDA 2018

:

 Appellant :

Appeal from the Judgment of Sentence Entered December 17, 2012,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. MC-51-MD-0003664-2012

BEFORE: SHOGAN, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 28, 2020

Aquil Johnson, pro se, appeals nunc pro tunc from the December 17, 

2012 aggregate judgment of sentence of 6 to 12 months’ imprisonment 

imposed after the trial court found him guilty of two counts of contempt of 

court1 during his Grazier2 hearing. This sentence was ordered to run 

consecutive to the 121⁄2 to 25-year sentence appellant is currently serving in 

an unrelated matter, at CP-51-CR-0005617-2009. After careful review, we 

remand this matter for the limited purpose of allowing the sentencing court to 

 

1 42 Pa.C.S.A. § 4132(3). As discussed, infra, the sentencing order 

incorrectly states that appellant was sentenced pursuant to 

Section 4137(a)(1).

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
J. S37043/20

- 2 -

correct a clerical error in the sentencing order, and affirm appellant’s

judgment of sentence in all other respects.

The trial court summarized the relevant facts and procedural history of 

this case as follows:

[O]n September 25, 2008, [a]ppellant and his 

conspirator, Matthew Smith, visited their 

acquaintance and marijuana dealer, Michael Wilson. 

Mr. Wilson let the two in through the backdoor of his 

residence at 6111 Jefferson Street, Philadelphia and 

welcomed them into his living room. While [a]ppellant 

distracted Mr. Wilson, Mr. Smith positioned himself on 

the other side of Mr. Wilson and shot him in the back 

of the head. Appellant and [Smith] then grabbed a 

bag of marijuana off of the living room table, laughed 

at Mr. Wilson, and left him for dead. Responding 

officers took Mr. Wilson to the University of 

Pennsylvania Hospital. He then identified [a]ppellant 

and Mr. Smith out of a photo array, and consistently 

identified both of them as his assailants. As a result

of their vicious attack, Mr. Wilson suffered dangerous 

swelling to his brain and had a portion of his skull 

surgically removed. Appellant was arrested later that 

same day.

On January 11, 2013, a jury sitting before the 

Honorable Chris R. Wogan convicted [a]ppellant of 

attempted murder, aggravated assault, and criminal 

conspiracy.[

3] On March 15, 2013, [a]ppellant was 

sentenced to an aggregate term of 30 [to] 60 years’ 

incarceration. [The record reflects that on May 29, 

2019, a panel of this court affirmed appellant’s 

convictions but vacated appellant’s judgment of 

sentence and remanded for resentencing because his 

sentences for conspiracy and attempted murder 

should have merged. See Commonwealth v. 

Johnson, A.3d , 2019 WL 2317695, at *7 

(Pa.Super. 2019) (unpublished memorandum).]

 

3 18 Pa.C.S.A. §§ 901(a), 2702(a), and 903(a)(1), respectively.
J. S37043/20

- 3 -

In the lead up to trial, [a]ppellant moved to proceed 

pro se. At the Grazier hearing on December 17, 

2012, [a]ppellant was twice found to be in contempt 

of court. [The trial court] sentenced [appellant] to 

3 [to] 6 months’ incarceration for each finding of 

contempt, to be served consecutively. On 

December 24, 2012, [a]ppellant filed a defective 

pro se notice of appeal with the wrong docket number 

and did not later perfect his appeal. Over one and a 

half years late, [a]ppellant filed a pro se PCRA[4] 

[p]etition on June 30, 2014. Appointed counsel filed

an [a]mended PCRA [p]etition on July 20, 2017 and 

the Commonwealth responded with a [m]otion to 

[d]ismiss the PCRA [p]etition on October 30, 2017 

(docketed November 3, 2017). Appellant filed a 

second [a]mended PCRA [p]etition on his own behalf 

on November 13, 2017. On August 16, 2018, the 

Honorable Sean F. Kennedy ordered [a]ppellant’s 

direct appeal rights to be reinstated nunc pro tunc.

Trial court opinion, 1/9/20 at 1-3 (citations to notes of testimony and original 

footnote omitted).

On August 17, 2018, appellant’s then-counsel, Zak T. Goldstein, Esq.,

filed a timely notice of appeal on appellant’s behalf. Thereafter, on April 18, 

2019, appellant filed a motion indicating his desire to proceed pro se, and the 

trial court scheduled a Grazier hearing. Following the Grazier hearing, 

appellant was granted leave to proceed pro se on September 23, 2019. 

Appellant filed a concise statement of errors complained of on appeal, in 

accordance with Pa.R.A.P. 1925(b), on October 9, 2019. On January 9, 2020, 

the trial court filed its Rule 1925(a) opinion.

Appellant raises the following issues for our review:

 

4 Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. 
J. S37043/20

- 4 -

I. Was [sic] appellant’s Pennsylvania and United 

States constitutional rights to due process 

violated when Judge Wogan charged, convicted 

and sentenced the appellant for two counts of 

contempt of court without any prior notice, an 

opportunity to be heard or an opportunity to 

conform his conduct which was required 

pursuant to In Re Mandell, 414 A.2d 1013 n.7 

(Pa.1980)?

II. Was appellant’s Pennsylvania and United States 

constitutional rights to due process violated 

where the evidence was insufficient to establish 

beyond a reasonable doubt that (1) appellant 

acted with intent to obstruct the proceedings 

and or (2) that the administration of justice was 

“actually and significantly disrupted” by either 

count of contempt?

III. Was appellant’s Pennsylvania and United States 

constitutional rights to due process violated 

when the court failed to reinstate the appellant’s 

post-sentence motion rights as requested 

where, Commonwealth v. Liston, 977 A.2d 

1089 (Pa. 2009)[,] was inapplicable to the 

appellant where his appeal rights were 

reinstated due to government interference 

instead of ineffective assistance of counsel. 

Even if Liston was applicable, [] appellant plead 

and proved he was entitled to his motion rights 

back for the same reason he was entitled to his 

appeal rights back?

IV. Should leave be granted to allow [] appellant to 

raise his judicial bias claim against [J]udge 

Wogan in this direct appeal instead of 

remanding back to the lower court to allow the 

appellant to file post-sentence motions to 

preserve the claim where, further delay in 

resolution of this case would cause a manifest 

injustice. If leave is granted to raise this claim 

without having to go back and present it in a 

post-sentence motion, the appellant’s is [sic] 

raising the claim that his rights to due process 
J. S37043/20

- 5 -

was violated where Judge Wogan showed bias 

or the potential for bias to [sic] high too [sic] be 

constitutionally tolerable?

Appellant’s brief at 4-5 (extraneous capitalization omitted).

Preliminarily, we note that the sentencing order indicates that appellant 

was sentenced pursuant to 42 Pa.C.S.A. § 4137(a)(1), which pertains to the 

contempt powers of magisterial district judges. However, the court has 

indicated on the record that it intended for appellant to be convicted and 

sentenced for contempt of court under Section 4132(3), and the wrong statute 

noted on the sentencing order was a clerical error. (See notes of testimony 

(CP-51-CR0001587-2009), 3/15/13 at 16; trial court opinion, 1/9/20 at 4-5.) 

Accordingly, we remand this matter for the limited purpose of allowing the 

sentencing court to correct this error. See, e.g., United States v. James, 

642 F.3d 1333, 1343 (11th Cir. 2011) (holding that, “[b]ecause the written 

judgment incorrectly states that James was convicted under [21 U.S.C.] 

§ 841(b)(1)(B)(iii), rather than § 841(b)(1)(C), we remand for the limited 

purpose of correcting the clerical error”), cert. denied, 565 U.S. 958 (2011). 

We now turn to the merits of appellant’s claims.

I. Due Process Challenge

Appellant first argues that his due process rights were violated when the 

trial court charged, convicted, and sentenced him for two counts of contempt 
J. S37043/20

- 6 -

of court without any prior notice, an opportunity to be heard, or an opportunity 

to conform his conduct to court norms. (Appellant’s brief at 12-15.)

Our review of the record reveals that appellant failed to properly raise 

this due process challenge before the trial court or otherwise object on this 

basis during the December 17, 2012 hearing. Accordingly, appellant’s claim

could be found waived on this basis alone. See Commonwealth v. Allen, 

2015 WL 6957090, *13 (Pa.Super. 2015) (unpublished memo); see also 

Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court are waived 

and cannot be raised for the first time on appeal”). In any event, we find that

appellant’s due process claim lacks arguable merit.

As discussed, appellant was convicted of two counts of direct criminal 

contempt of court for misconduct that (1) occurred during the course of his 

Grazier hearing; and (2) was personally observed by Judge Wogan. Our 

supreme court has long recognized the inherent power of a court to impose 

summary punishment for misconduct that occurs in its presence, and that this 

power does not offend our notions of due process:

In Pennsylvania, [t]his Court has long upheld a court’s 

power to maintain courtroom authority by the 

imposition of summary punishment for contempt in 

appropriate cases. [A] summary proceeding to 

protect the orderly administration is perfectly 

proper[.] . . . The court must be able to control those 

appearing before it, and must be able to use its power 

summarily to avoid interference with the principal 

matter before the court. Summary proceedings for 

contempt of court are those in which the adjudication 

omits the usual steps of the issuance of process, 

service of complaint and answer, holding hearings, 
J. S37043/20

- 7 -

taking evidence, listening to arguments, awaiting 

briefs, submission of findings, and all that goes with a 

conventional court trial. Thus, the summary 

contempt power has been upheld against due 

process attacks[.] . . .

. . . .

. . . . Where the contempt is committed directly under 

the eye or within the view of the court, it may proceed 

upon its own knowledge of the facts, and punish the 

offender, without further proof, and without issue or 

trial in any form[.]

Commonwealth v. Moody, 125 A.3d 1, 8, 11-12 (Pa. 2015) (citations and 

internal quotation marks omitted; brackets in original; emphasis added).

Based on the foregoing, even if appellant had properly preserved his 

due process challenge, we would find no merit to his claim that the trial court 

violated his due process rights by finding him in contempt of court at the 

Grazier hearing.

II. Sufficiency of the Evidence

Appellant next argues that there was insufficient evidence to sustain his 

convictions for criminal contempt of court because “evidence was insufficient 

to establish beyond a reasonable doubt that (1) [he] acted with intent to 

obstruct the proceedings[, or] (2) that the administration of justice was 

actually and significantly disrupted[.]” (Appellant’s brief at 16.) We disagree.

Our standard of review in assessing whether there was sufficient 

evidence to sustain a conviction is well settled:
J. S37043/20

- 8 -

[W]e must determine whether the evidence admitted 

at trial, and all reasonable inferences drawn from that 

evidence, when viewed in the light most favorable to 

the Commonwealth as verdict winner, was sufficient 

to enable the fact finder to conclude that the 

Commonwealth established all of the elements of the 

offense beyond a reasonable doubt. The 

Commonwealth may sustain its burden by means of 

wholly circumstantial evidence. Further, the trier of 

fact is free to believe all, part, or none of the evidence.

Commonwealth v. Reese, 156 A.3d 1250, 1257-1258 (Pa.Super. 2017) 

(citation omitted), appeal denied, 173 A.3d 1109 (Pa. 2017).

“In reviewing an appeal from a contempt order, we place great reliance 

on the discretion of the trial judge. We review the record to determine if the 

facts support the trial court’s decision and will reverse the trial court only if 

there is a plain abuse of discretion.” In re Arrington, 214 A.3d 703, 707 

(Pa.Super. 2019) (citation omitted).

Criminal contempt is codified in Section 4132, which provides, in 

relevant part, that the courts of the Commonwealth have the power to “impose 

summary punishments for contempts of court” in cases where there is “[t]he 

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

the administration of justice.” 42 Pa.C.S.A. § 4132(3). Thus, “[t]o sustain a 

conviction for direct criminal contempt under [Section 4132(3)], there must 

be proof beyond reasonable doubt (1) of misconduct, (2) in the presence of 

the court, (3) committed with the intent to obstruct the proceedings, (4) that 

obstructs the administration of justice.” Moody, 125 A.3d at 5 n.4 (citation 

omitted).
J. S37043/20

- 9 -

Upon review, we find that there was ample evidence from which the trial 

judge could conclude that appellant was guilty of contempt of court. The 

evidence established that during the December 17, 2012 Grazier hearing, 

appellant repeatedly interrupted Judge Wogan as he was attempting to 

conduct the colloquy and failed to listen to instructions from the court. At one 

point during the hearing, Judge Wogan instructed appellant that he “ha[s] to 

answer these questions so [the trial court] can determine whether [he can] 

represent [him]self.” (Notes of testimony, 12/17/12 at 3.) However, 

appellant disregarded Judge Wogan’s warning and continued to voice his 

disapproval with both his court-appointed attorney and the prospect of 

representing himself. (Id.) Judge Wogan cautioned appellant that he could 

elect to represent himself in this matter or proceed with his current 

court-appointed counsel, but that there was no option to have a new attorney 

appointed in this matter. (Id. at 3-4.) This led to the following exchange 

whereby appellant again interrupted Judge Wogan’s colloquy and resulted in 

his being held in contempt of court:

A. But regardless of what you say, even in the 

courtroom with me, [Attorney Joseph D. 

Lento’s] not going to represent me whether I 

keep him or not.

Q. Why isn’t he?

A. Because he’s not going to do what I asked him 

to do. Like the thing is I want to do my defense 

and he’s not going to present it.
J. S37043/20

- 10 -

Q. Okay. You need to start answering my 

questions and not go off on a speech.

A. I understand that, Your Honor, but --

Q. You will not talk about anything else. You’re 

completely misreading about the law. 

You do understand that you have a right to be 

represented by counsel, correct?

A. Yes.

Q. [Attorney] Lento at this point was appointed to 

represent you, since you cannot afford an 

attorney, correct?

A. Yes.

Q. Now, let’s look for a list. This is number one on 

our list. Here’s what can happen if you --

A. I’m getting railroaded, that’s what’s 

happening.

Q. I’m holding you in contempt for disrupting the 

operations of my courtroom.

Id. at 4-5 (emphasis added).

The record further reflects that Judge Wogan held appellant in contempt 

of court a second time after he repeatedly feigned misunderstanding 

Judge Wogan’s explanation of the sentencing guidelines in an attempt to delay 

and obstruct the operations of the courtroom:

Q. All right. Do you understand that if you’re found 

guilty of attempted murder here, you could be 

sentenced to 20 to 40 with a pretty substantial 

fine, do you understand that?

A. No, I don’t understand that.
J. S37043/20

- 11 -

Q. How come? You don’t understand that the 

maximum period of incarceration is 40 year [sic] 

for this and a maximum fine of --

A. No, I don’t. Can you explain?

Q. Well, it’s pretty simple --

A. Just because I make it to trial, doesn’t mean I’m 

guilty of those.

Q. That’s considered a trial issue. I don’t know 

whether you will be found guilty or not 

that [sic]. That’s for a jury to decide. If you 

don’t understand what I’m telling you, it’s very 

simple. I can send you to prison for 20 to 40 

years if you are found guilty of attempted 

murder. Do you understand that if you’re found 

guilty of attempted murder you can serve 20 to 

40 years on that. Do you understand that?

A. I don’t understand what’s going on right now.

Q. Okay. What is it that you don’t understand. I’ve 

explained --

A. None of this. I don’t understand any of this.

Q. So I take it you withdraw your pro se motion 

and you’d like to continue with 

[Attorney] Lento?

A. I never said that. I don’t understand what 

you’re telling me.

Q. You don’t understand the very, very simple 

statement that if, only if, you’re found guilty, 

you could be facing up to 40 years for attempted 

murder[?]

A. I don’t know what’s going on in this courtroom. 

I don’t. This is my first time in this court room, 
J. S37043/20

- 12 -

first time meeting you, I don’t understand 

what’s go [sic] on.

Q. All right. I’m holding you in contempt for 

obstructing the operations of my 

courtroom. I sentence you to serve 

another 3 to 6 months. That’s consecutive 

to the earlier 3 to 6 months.

Do not lie to me when I’m asking you a 

very simple question. You most certainly 

understand that you can get 40 years for 

attempted murder. Do not lie to me again 

and delay the operations of this courtroom.

Id. at 5-7 (emphasis added). 

Based on the foregoing, we find that there is ample evidence that

appellant acted with the intent to obstruct the trial court’s resolution of his 

own Grazier hearing, and the administration of justice was actually 

obstructed multiple times. See Moody, 125 A.3d at 5 n.4. Accordingly, 

appellant’s claim that there was insufficient evidence to sustain his convictions 

for two counts of contempt of court must fail. 

III. Reinstatement of Post-Sentence Motion Rights Nunc Pro Tunc

Appellant next argues that his due process rights were violated when 

the PCRA court failed to automatically reinstate his post-sentence motion 

rights nunc pro tunc, following the reinstatement of his direct appeal rights 

nunc pro tunc, due to alleged “governmental interference.” (Appellant’s brief 

at 24.) We disagree.
J. S37043/20

- 13 -

This court has recognized that the reinstatement of the right to file a 

direct appeal does not carry with it the automatic right to file a nunc pro tunc

post-sentence motion. Liston, 977 A.2d at 1093-1094. On the contrary, the 

PCRA court must expressly grant the right to file a nunc pro tunc

post-sentence motion. Commonwealth v. Capaldi, 112 A.3d 1242, 1245 

(Pa.Super. 2015). To the extent appellant challenges the PCRA court’s failure 

to do so, we find that this issue is of no matter since we did find any of 

appellant’s claims waived based upon his failure to file timely post-sentence 

motions. On the contrary, appellant waived his due process challenges by 

failing to properly raise them before the trial court during the December 17, 

2012 hearing.5 See In re Martorano, 346 A.2d 22 (Pa. 1975) (due process 

challenge to contempt proceeding waived because not raised at contempt 

hearing).

IV. Judicial Bias

In his final claim, appellant contends that “Judge Wogan showed bias or 

the potential for bias to [sic] high to be constitutionally tolerable” by “injecting 

himself in the accusatory process and expressing a prejudgment of guilt” 

during the course of the December 17, 2012 Grazier hearing. (Appellant’s 

 

5 The Commonwealth has indicated that it is not opposed to a remand to allow 

appellant the opportunity to file post-sentence motions nunc pro tunc. (See

Commonwealth’s brief at 16.) In light of our resolution of this issue, however, 

we decline to do so.
J. S37043/20

- 14 -

brief 33-35.) Our review of the record, however, reveals that appellant failed 

to properly preserve this claim before the trial court.

It is well settled that “[j]udicial bias may not be raised for the first time 

during post-trial proceedings.” Crawford v. Crawford, 633 A.2d 155, 160 

(Pa.Super. 1993) (citation omitted). On the contrary, a party seeking recusal 

or disqualification on the basis of judicial bias or impartiality “must raise the 

objection at the earliest possible moment, or that party will suffer the 

consequence of being time barred.” Commonwealth v. Stafford, 749 A.2d 

489, 501 (Pa.Super. 2000) (citation and internal quotation marks omitted), 

appeal denied, 795 A.2d 975 (Pa. 2000). The failure to timely move for a 

judge’s recusal after the facts allegedly establishing bias come to a 

defendant’s attention renders the judicial bias claim waived. See 

Commonwealth v. Johnson, 719 A.2d 778, 790 (Pa.Super. 1998), appeal 

denied, 739 A.2d 1056 (Pa. 1999).

Instantly, the record reflects that appellant did not move for recusal of

Judge Wogan. Because appellant failed to raise his claim of judicial bias at 

the earliest possible opportunity, it is waived. Id.; see also Pa.R.A.P. 302(a).

Judgment of sentence affirmed. Case remanded for the correction of a 

clerical error in the sentencing order. Jurisdiction relinquished.

Shogan, J. joins this Memorandum.

Nichols, J. concurs in the result.
J. S37043/20

- 15 -

Judgment Entered.

JosephD.Seletyn,Esq.

Prothonotary

Date: 12/28/2020