No. 2006 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 1408 November Term 1973.
William P. Fedullo, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cavanaugh, Rowley and Hoffman, JJ.
[ 312 Pa. Super. Page 229]
Appellant contends that the lower court erred in not finding his retrial barred by the double jeopardy clause. We disagree and, accordingly, affirm the order of the lower court and remand for further proceedings.
On October 8, 1974 appellant was convicted following a jury trial of first degree murder and a weapons offense. On appeal to the Supreme Court, appellant's conviction was reversed and a new trial granted because of prosecutorial misconduct. Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978). Appellant's subsequent contention that the prosecutorial misconduct barred his reprosecution was rejected by the Supreme Court in Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980). Appellant's second trial began on February 17, 1981 but was interrupted during the Commonwealth's case because appellant's counsel was ill. The lower court ordered counsel to submit to a physical exam on February 18, 1981 and the examining police surgeon opined that counsel was capable of proceeding. Upon a reexamination the next day, the lower court ordered counsel to resume his representation. Counsel attempted to cross-examine a Commonwealth witness, but was soon unable to continue. The lower court believed counsel to be healthy and again ordered him to represent appellant. Counsel refused, prompting the lower court to find him in contempt and have him removed from the courtroom. The lower court then held the following colloquy with appellant:
THE COURT: Wait just a moment. I want to voir dire [appellant]. Step up, [appellant].
Now [appellant], as you can see, because of your attorney's conduct, I have had to really remove him from the case. He has removed himself from the case affectively [sic]. Do you wish to represent yourself and continue with the trial?
THE COURT: Do you wish to have a mistrial and continue it?
[ 312 Pa. Super. Page ...