No. 2974 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. MC 81-02-2080.
Samuel C. Stretton, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cavanaugh, Rowley and Hoffman, JJ.
[ 312 Pa. Super. Page 233]
Appellant contends that the lower court erred in finding him guilty of contempt and sentencing him to sixty days imprisonment. Because we find the evidence of appellant's intent insufficient to support a contempt conviction, we must reverse the order and judgment of sentence of the lower court and order appellant discharged.
Appellant, a solo practitioner, was court-appointed to defend William Starks in the retrial of a first degree murder charge. Late in the afternoon of the first day of Starks' jury trial on February 17, 1981, appellant stopped cross-examining a police detective and requested the lower court to recess for the day because he felt ill and was having trouble concentrating and formulating questions. The lower court agreed to recess for the remainder of the day. The next morning, after appellant telephoned and informed the court that he was still ill and was going to a doctor, the lower court excused the jury until noon. Appellant could not locate a doctor, prompting the lower court to order him to leave his suburban Philadelphia home and report to the court's chambers in Philadelphia's City Hall, where the court would find a doctor for him. The jury was then dismissed for the day. Appellant was there examined by a police surgeon who found appellant's throat moderately infected and noticed signs of increased bowel activity. Although the doctor prescribed medicine to control appellant's diarrhea and indicated that appellant may have had a viral infection, he informed the court that none of appellant's symptoms were disabling and opined that appellant was capable of continuing.
Appellant arrived in court at 9 a.m. the next day and informed the court that he still could not proceed. After
[ 312 Pa. Super. Page 234]
the police surgeon re-examined appellant and found improvement from the day before, appellant was ordered to resume his representation of Starks. Appellant cross-examined a Commonwealth witness for approximately twenty minutes before again telling the court he was having trouble formulating his questions. At the lower court's insistence, appellant continued questioning the witness, but after several minutes he told the court he could not go on. The lower court ordered appellant to continue under threat of contempt. Appellant stated that he could not comply, prompting the lower court to find him in contempt, sentence him to sixty days imprisonment, and declare a mistrial in the Starks trial.
On appeal to this Court, the contempt order was vacated and the case remanded for further proceedings to determine if appellant's physical or mental health prevented him from functioning as counsel on February 19, 1981. Testimony at a March 11, 1981 hearing indicated that shortly after the aborted trial, appellant had been examined by Dr. Clark, a general practitioner with extensive experience in psychiatry and Dr. Levy, a psychiatrist. Both found that appellant had been suffering acute emotional problems. A court-ordered independent psychiatric evaluation on March 17, 1981, indicated that appellant was "experiencing an Acute Depressive Reaction which is definitely related to unusual stresses that have burdened him over several months' time and which triggered his discomforting physical and emotional reactions." Appellant was instructed to take time away from his profession and other sources of stress. Nonetheless, the lower court found that appellant had not suffered any physical or mental illness to prevent him from continuing the trial and reimposed the contempt order and sentence.*fn* This appeal followed.
[ 312 Pa. Super. Page 235]
Appellant contends that the lower court erred in finding him in contempt. The inherent power of a court to impose summary punishment for contemptuous conduct has been ...