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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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