J-A24006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 December 18, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-MD-0003137-2013

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.

DISSENTING MEMORANDUM BY PANELLA, J.             FILED DECEMBER 14, 2015

        I respectfully dissent from my esteemed colleagues in the Majority. I

would affirm the judgment of sentence following McCoy’s conviction of direct

criminal contempt, but remand for the correction of a clerical error. The trial

court often confuses direct and indirect criminal contempt in this case. As

explained in my dissent, however, it is clear from the record that the trial

court, despite its confusion of the terminology, actually convicted McCoy of

direct criminal contempt. This conviction should be affirmed.

        I begin with McCoy’s final claim—her fifth issue raised on appeal. The

Majority states that “in terms of the procedure used by the court, we cannot

discern how it was proper to allow an eyewitness to the alleged wrongdoing
____________________________________________



    Retired Senior Judge assigned to the Superior Court.
J-A24006-15


prosecute Appellant.” Majority Memorandum, at 6. But this is not the issue

McCoy raises on appeal. And we cannot reverse on a basis not even raised

by an appellant on appeal.

      In this appeal, McCoy argues that her due process rights were violated

because the trial “court ordered the hearing to go forward with the assistant

district attorney acting as both the prosecutor and the witness.” Appellant’s

Brief, at 35. But this is simply not true. The trial court never ordered such

conduct. McCoy called the assistant district attorney as a witness—after the

Commonwealth finished with its witnesses. See N.T., Hearing, 11/25/13, at

17 (“Your Honor, the defense will call the District Attorney.”). Thus, this

issue has no merit. Below, I explain why her other issues fail too.

      McCoy attended the preliminary hearing of her fiancée, and father of

her child, Shawn Freeman. Freeman was charged with rape, among other

offenses. After the sixteen-year-old victim testified, she stepped into the

hallway located immediately outside the courtroom. Accompanying the

victim were her father, sister, and an assistant district attorney. McCoy

approached the victim and held her cell phone out towards the victim as if

she was taking her picture. The victim’s father leapt in front of the cell

phone and told her to stop taking pictures. Frightened, the victim and her

sister fled back into the safety of the courtroom.

      The trial court postponed its docket to deal with this matter. The trial

court had McCoy sworn in. McCoy denied taking the picture. The trial court


                                     -2-
J-A24006-15


found her in violation of a stay away order it had entered earlier that day

and sentenced her to a term of confinement of 29 to 60 days in county jail.

Freeman’s attorney, Stephen Fleury, Esquire, was then permitted to “stand

in for her” and argued on her behalf. N.T., Hearing, 11/25/13, at 7. He

pointed out that McCoy had no way of knowing about the stay away order

and that she was entitled to counsel and a hearing on the contempt charge.

The trial court agreed and held a contempt hearing.

      Attorney Fleury represented McCoy. The assistant district attorney who

witnessed the episode represented the Commonwealth. The victim recounted

what happened in the hallway. The father testified as to what he saw. McCoy

called the assistant district attorney as a witness. She testified that she

observed McCoy holding a cell phone up to the victim. Finally, McCoy

testified. She denied any wrongdoing. She stated that she never held up a

cell phone and did not take any pictures.

      In her closing argument, McCoy argued that the Commonwealth failed

to introduce into evidence any pictures from the cell phone. The trial court

noted that “[y]ou don’t need a photograph to show that someone is pointing

a phone at someone to intimidate them[]” and that “[w]hether they took the

picture or not is completely irrelevant to the fact of intimidation.” Id., at 23-

24.

      The trial court found McCoy guilty of “indirect criminal contempt” and

sentenced her to 30 to 60 days in county custody. Id., at 24. The order


                                      -3-
J-A24006-15


finding her in contempt of court referenced 42 Pa.C.S.A. § 4137(a)(1). See

Contempt of Court Order, dated 11/25/13. Section 4137 pertains to the

contempt powers of magisterial district judges. The trial court in this case

was a common pleas court judge.

      McCoy filed a post-sentence motion. The trial court held a hearing on

the motion. At the hearing, McCoy brought to the trial court’s attention that

the order improperly found her guilty under § 4137. The trial court

responded, “that does not apply to me.” N.T., Hearing, 12/18/13, at 4

(capitalized typeface omitted). McCoy then explained that both she and the

Commonwealth were in agreement that the correct statute was § 4132 of

the Judicial Code. See id. Ultimately, the trial court reaffirmed its finding of

“contempt” and denied the post-sentence motion. It then entered another

sentencing order. That order, however, notes that McCoy was convicted

pursuant to 42 Pa.C.S.A. § 4137(a)(1), and ordered immediate parole. This

timely appeal followed.

      I must first address the implications of the sentencing order

referencing the wrong statute. I raise this issue sua sponte. I may do so

because if the language referencing the incorrect statute controls the

sentence is illegal. See Commonwealth v. Mathias, 121 A.3d 558, 562 n.3

(Pa. Super. 2015) (“[C]hallenges to an illegal sentence can never be waived

and may be raised sua sponte by the Superior Court.”). As I explain below, I




                                     -4-
J-A24006-15


find that the incorrect statute referenced in the sentencing order is a mere

clerical error, which the trial court could easily correct on remand.

      The sentencing order is patently incorrect. Section 4137 only applies to

magistrate judges. As of January 1, 1969, the office of magistrate was

abolished in Philadelphia and a new municipal court, among other specialty

courts, was established in its place. See Glancey v. Casey, 288 A.2d 812,

814 (Pa. 1972). See also Pa.Const. Art. 5, § 6; Pa.Const. Art. 5, Schedule

16(u).

      “A trial court has the inherent, common-law authority to correct ‘clear

clerical errors’ in its orders.” Commonwealth v. Thompson, 106 A.3d 742,

766 (Pa. Super. 2014) (citations omitted). A court possesses such authority

even after the thirty-day time limitation provided in 42 Pa.C.S.A. § 5505,

Modification of orders. See id. See also Commonwealth v. Holmes, 933

A.2d 57, 65 (Pa. 2007). The Pennsylvania Supreme Court has “set a high bar

for differentiating between errors that may be corrected under the inherent

powers of trial courts, and those that may not[.]” Commonwealth v.

Borrin, 80 A.3d 1219, 1227 (Pa. 2013). “[C]orrectible errors” are “those

determined to be ‘patent and obvious mistakes.’” Id. (citation omitted). A

“clerical error” has been defined as an error that is “inconsistent with what in

fact occurred in a case, and, thus, subject to repair.” Id. (citation omitted).

      Our Supreme Court has affirmed the correcting of a sentencing order

where the illegality was apparent on the face of the order, see Holmes, 933


                                      -5-
J-A24006-15


A.2d at 66, and found, in a companion case, an error “obvious and patent”

where an examination of the “Quarter Session notes in the record” disclosed

a sentence for a probationary term that did not exist,” see id. and at n.18.

      The key is the “obviousness of the illegality … that triggers the court’s

inherent power.” Holmes, 933 A.2d at 66-67. Here, the error is painfully

obvious. It references a contempt statute that is plainly inapplicable. No one

was under the impression in this case that the trial judge was a magistrate.

Section 4137(c) authorizes imprisonment of only up to 30 days whereas the

trial court in this case imposed a maximum sentence of 60 days. In fact, as

mentioned, no party has even mentioned § 4137 on appeal; the parties and

trial court all refer to § 4132.

      What happened here is no different from a scenario where a defendant

was charged with a particular offense, went to trial for or pleaded guilty to

that particular offense, was convicted of that particular offense, and was

sentenced for that particular offense, but the sentencing order mistakenly

declares that the defendant was convicted of a completely different crime.

Courts throughout the nation, including this one, see Commonwealth v.

Young, 695 A.2d 414 (Pa. Super. 1997), have held that such an error

constitutes a patent and obvious clerical error that is subject to correction,

even after the trial court loses traditional jurisdiction. See, e.g., United

States v. James, 642 F.3d 1333, 1343 (11th Cir. 2011); United States v.




                                     -6-
J-A24006-15


McBride, 584 F.3d 1240, 1259 (9th Cir. 2009); State v. Benson, 822

N.W.2d 484, 487 n.2 (Wis.App. 2012).

      I find that the trial court’s unfortunate reference to § 4137(a)(1) in the

sentencing order constitutes an obvious patent defect or mistake and that as

such the trial court possesses the inherent power to correct the order,

despite the expiration of the modification period provided by 42 Pa.C.S.A. §

5505. See Holmes. On remand, the trial court could simply correct the

sentencing order. Now onto the merits.

      “[W]hen 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 decision.”

Commonwealth v. Kolansky, 800 A.2d 937, 939 (Pa. Super. 2002)

(citation omitted).

      McCoy first argues that the evidence was legally insufficient to convict

her of indirect criminal contempt for violating a stay away order. There are

multiple problems with this argument. McCoy was initially found guilty of

violating the stay away order, but the trial court abandoned that decision

and ordered a contempt hearing focused on the intimidation of the witness.

See N.T., Hearing, 11/25/13, at 4-8. As noted, Attorney Fleury, Freeman’s

lawyer, informed the trial court that there was no way for McCoy to have




                                     -7-
J-A24006-15


known about the stay away order. See id., at 7-8. Thus, violation of the

stay away order became moot.1

        It is true that after the hearing the trial court announced that it found

her guilty of “indirect criminal contempt,” N.T., Hearing, 11/25/13, at 24,

but at the hearing on the post-sentence motion the trial court notes that it

actually found her guilty of direct criminal contempt. See N.T., Post-

Sentence Motion Hearing, 12/18/13, at 7. In addition, both of the orders,

although they reference the incorrect statute, indicate that the contempt

occurred     “in   presence     of   court.”   Sentence   Order,   dated   12/18/13

(capitalization omitted). See also Contempt of Court Order, dated 11/25/13.

Direct criminal contempt involves conduct occurring in the presence of a

court. See Commonwealth v. Patterson, 308 A.2d 90, 92 (Pa. 1973).

Indirect criminal contempt, on the other hand, occurs “outside the presence

of the court.” Commonwealth v. Brumbaugh, 932 A.2d 108, 109 (Pa.

Super. 2007) (citation omitted). McCoy was never held in indirect criminal

contempt.

        McCoy next argues that there was insufficient evidence to sustain the

conviction for direct criminal contempt. I disagree. The evidence shows that

McCoy acted to intimidate the victim.



____________________________________________


1
    This makes discussion of McCoy’s second issue unnecessary.



                                           -8-
J-A24006-15


      The trial court found McCoy guilty of direct criminal contempt pursuant

to 42 Pa.C.S.A. § 4132(3). That subsection requires proof beyond a

reasonable doubt “(1) of misconduct, (2) in the presence of the court, (3)

committed with the intent to obstruct the proceedings, (4) which obstructs

the administration of justice. To obstruct justice, conduct must significantly

disrupt proceedings.” Commonwealth v. Falana, 696 A.2d 126, 128 (Pa.

1997) (citations omitted). “This Court has recognized misconduct occurs in

the presence of the court if the court itself witnesses the conduct or if the

conduct occurs outside the courtroom but so near thereto that it obstructs

the administration of justice.” Commonwealth v. Moody, ___ A.3d ___,

___, 2015 WL 6472549, *9 (Pa., filed October 27, 2015) (quoting Falana,

696 A.2d at 129) (internal quotation marks omitted; emphasis in original).

      Here, as noted, the victim, among others, testified that McCoy walked

up to her and held a cell phone out as if she were taking her picture. This

occurred just after the victim walked out of the courtroom and had testified

that McCoy’s fiancée had raped her. Frightened, the victim immediately ran

back into the courtroom seeking a safe refuge. This conduct did not occur

directly in front of the trial court, but just outside the courtroom. The trial

court writes in its opinion that “[t]his prevented the [c]ourt from proceeding

with the remaining cases on the docket.” Trial Court Opinion, 11/5/14, at 2.

      I find this evidence sufficient to sustain the conviction for direct

criminal contempt as the credited testimony establishes that McCoy was


                                     -9-
J-A24006-15


trying to intimidate the victim, which was obviously designed to obstruct

judicial proceedings.

      McCoy next contends that her due process rights were violated when

the trial court failed to provide notice of any charge other than the violation

of the stay away order. We disagree.

      In the context of criminal contempt, the Pennsylvania Supreme Court

has “candidly acknowledged” that it tolerates “a drastic departure from our

traditional view of due process[.]” Moody, ___ A.3d at ___, 2015 WL

6472549, *5 (internal quotation marks and citation omitted; brackets in

original). “[T]he Constitution does not require any particular mode of

informing an accused of the charges against him.” Commonwealth v.

Mayberry, 327 A.2d 86, 91 (Pa. 1974) (citations omitted). All that is

required is that “a contemnor should have reasonable notice of the specific

charges and opportunity to be heard in his own behalf.” Id. (citations and

internal quotation marks omitted).

      The record flatly contradicts McCoy’s assertion. McCoy was made

aware that the trial court was proceeding with a hearing for criminal

contempt based on her behavior in allegedly (at that time) intimidating the

complaining witness in her fiancée’s preliminary hearing. See N.T., Hearing,

11/25/13, at 4-8; 18-19. Accordingly, this claim fails.

      I would affirm the judgment of sentence and remand for the correction

of a clerical error.


                                     - 10 -
J-A24006-15




              - 11 -
