Com. v. McCoy, D. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARCELL MCCOY, :
:
Appellant : No. 318 EDA 2014
Appeal from the Judgment of Sentence Entered December 18, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-MD-0003137-2013
BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 14, 2015
Darcell McCoy (Appellant) appeals from a judgment of sentence
entered after her contempt conviction. We vacate the judgment of sentence
and reverse the conviction.
The background underlying this matter can be summarized as follows.
According to the trial court’s opinion, on November 25, 2013, the Honorable
James Murray Lynn, a judge on the Philadelphia County Court of Common
Pleas, held a preliminary hearing in a criminal case involving Shawn
Freeman (Freeman). At the conclusion of the hearing, the complainant in
Freeman’s case, Aneya Pratt (Pratt), was speaking with the assistant district
attorney who was prosecuting the case, Mary Ellen Fields (ADA Fields). They
were speaking directly outside of the courtroom. Appellant approached
Pratt. Appellant was holding a camera phone with her arm outstretched as
* Retired Senior Judge assigned to the Superior Court.
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though she was taking a picture of Pratt. Pratt then ran into the courtroom.
These events prompted the trial court to hold a contempt hearing that day.
At the beginning of the hearing, ADA Fields informed the court that
she had witnessed the incident. The court then questioned Appellant, who
revealed that she is Freeman’s fiancé and the mother of his child. The court
informed Appellant that it had issued a stay away order, that Appellant had
violated the order, and that, because Appellant was guilty of “contempt of
court,” she would serve 29 to 60 days in county prison. N.T., 11/25/2013,
at 6.
Freeman’s attorney, Stephen Fleury (Attorney Fleury), spoke on
Appellant’s behalf. He stated that that any contempt in this case would
constitute indirect criminal contempt because it did not occur in the
courtroom. Counsel therefore argued that Appellant was entitled to counsel
and a hearing. The trial court agreed, stating, “Yes. All right. We’ll have a
hearing. Bring up the witness.” Id. at 8.
The Commonwealth, represented by ADA Fields, called Pratt as a
witness. Pratt informed the court that she had testified against Freeman and
that, after the preliminary hearing, she was exchanging information with
ADA Fields. During this exchange, Pratt noticed Appellant with a camera and
informed her father. According to Pratt, her father jumped in front of the
camera and told Appellant not to take any pictures. Pratt then ran into the
courtroom with her sister.
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Before cross examining Pratt, Attorney Fleury stated his belief that a
conflict existed regarding ADA Fields. The court interrupted counsel and told
him not to worry about the conflict, as ADA Fields was the only prosecutor
there at the time. During the cross examination, Pratt acknowledged that
she did not know if Appellant actually took a picture of her. The
Commonwealth’s next and final witness was Pratt’s father, Allan Burrell
(Burrell). Burrell essentially corroborated Pratt’s testimony.
The defense’s first witness was ADA Fields. ADA Fields also
acknowledged that she did not know whether Appellant actually took a
picture of Pratt. The defense’s next and final witness was Appellant.
Appellant testified that she was outside of the courtroom during Freeman’s
preliminary hearing and was not aware of the stay-away order. She also
denied holding up a phone toward Pratt. After Pratt testified, Attorney
Fleury again stated his belief that the proceedings were improper because
ADA Fields prosecuted the case and was a witness. The court responded
that Attorney Fleury had called ADA Fields as a witness.
At the close of the contempt hearing, the court stated, “I find your
client guilty of indirect criminal contempt, and in violation of my stay away
order, and for intimidating the witness in this courtroom….” N.T.,
11/25/2013, at 24. The court entered a “Contempt Order” stating that
Appellant had been convicted of violating 42 Pa.C.S. § 4137(a)(1).
However, subsection 4137(a)(1) addresses a magisterial district judge’s
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authority to find a person in criminal contempt for misbehaving in the
presence of the court. The order further stated that Appellant would serve
30 to 60 days in prison.
Appellant timely filed a post-sentence motion. In the motion,
Appellant pointed out that, because the trial court was not a magisterial
district judge, Appellant could not be found guilty of violating subsection
4137(a)(1). Appellant also argued, inter alia, that the evidence was
insufficient to prove her guilty of direct criminal contempt and that her
sentence was illegal.
On December 18, 2013, the trial court held a hearing on Appellant’s
post-sentence motion. When counsel pointed out that the court’s contempt
order states that Appellant violated subsection 4137(a)(1), the court
asserted, “That does not apply to me.” N.T., 12/18/2013, at 4. Several
times during the hearing, the court stated that it had found Appellant guilty
of “in direct [sic] criminal contempt.” Id. at 4 and 7. Attorney Fleury
informed the court that he and the district attorney believed the correct
statute at issue was 42 Pa.C.S. § 4132.1 Appellant contended that the
evidence was insufficient to prove that she violated this statute.
1
Section 4132 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:
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The Commonwealth, now represented by Assistant District Attorney
Michael Stackow, argued that the court still could find Appellant guilty of
direct criminal contempt. It is unclear whether the court agreed with the
Commonwealth, but at the end of the hearing, the court stated that it
believed “this is contempt” and denied Appellant’s post-sentence motion.
On that same day, the court entered a “Sentence Order” which again stated
that Appellant had violated subsection 4137(a)(1) and sentenced her to 30
to 60 days in prison. Appellant timely filed a notice of appeal.
The trial court did not direct Appellant to comply with Pa.R.A.P.
1925(b); however, the court issued an opinion supporting its decisions. In
the first sentence of that opinion, the court states that it found Appellant
guilty of indirect criminal contempt. Trial Court Opinion, 11/5/2014, at 1.
However, later in its opinion, the court asserts, “Nonetheless, in this case
there was ample evidence to support a finding against the Appellant based
upon direct criminal contempt[].” Id. at 4 (emphasis in original). The court
then proceeds to explain why the evidence was sufficient to find Appellant
guilty of direct criminal contempt.
(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.
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Appellant raises a number of issues on appeal. She argues that the
evidence was insufficient to convict her of indirect criminal contempt; that
the evidence was insufficient to convict her of direct criminal contempt; that
her due process rights were violated because she was not given notice that
she was charged with direct criminal contempt; and that her due process
rights were violated because ADA Fields prosecuted the case and was a
necessary witness at the contempt hearing.
“This Court’s standard of review of a nonjury trial is to determine
whether the findings of the trial court are supported by competent evidence
and whether the trial judge committed error in the application of law.”
Commonwealth v. Decker, 698 A.2d 99, 100 (Pa. Super. 1997).
After a review of the certified record, the trial court’s opinion, and the
parties’ briefs, we conclude that the trial court committed a fatal error in
applying the law. More specifically, Appellant’s conviction cannot stand, as
the record is absolutely unclear as to whether the trial court convicted
Appellant of direct contempt, of indirect contempt, or for violating subsection
4137(a)(1), a statute that clearly is not applicable to a proceeding in a Court
of Common Pleas. Moreover, in terms of the procedure used by the court,
we cannot discern how it was proper to allow an eyewitness to the alleged
wrongdoing prosecute Appellant. See Pennsylvania Rule of Professional
Conduct 3.7(a) (“A lawyer shall not act as advocate at a trial in which the
lawyer is likely to be a necessary witness unless[] the testimony relates to
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an uncontested issue; [] the testimony relates to the nature and value of
legal services rendered in the case; or [] disqualification of the lawyer would
work substantial hardship on the client.”).
Given the uncertainty of the record and the odd procedural mechanism
the court utilized in the contempt hearing, we vacate Appellant’s judgment
of sentence and reverse her conviction.
Judgement of sentence vacated. Conviction reversed.
Judge Wecht joins.
Judge Panella files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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