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submitted: July 27, 1987.


Appeal from the Judgment of Sentence February 26, 1987 in the Court of Common Pleas of Philadelphia County, Criminal, No. 86-11-3016.


Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Hoffman and Hester, JJ.

Author: Cirillo

[ 367 Pa. Super. Page 8]

Appellant Robert Jackson takes this appeal from a judgment of sentence imposed by the Philadelphia County Court of Common Pleas following a contempt hearing on two citations of criminal contempt. The first citation was imposed for disruptive conduct during voir dire of the jury preceding appellant's trial on a charge of robbery. The second citation was imposed for a remark made during the contempt hearing itself. We vacate the judgment of sentence and remand for a rehearing.

Appellant contends that the trial court erred in twice holding him guilty of contempt: first, because the evidence was insufficient to support the conclusion that appellant's collapse in the courtroom during the jury selection was feigned; and second, because appellant's remark during the contempt hearing did not constitute misconduct with intent to obstruct the proceedings and did not cause a significant disruption. In addition, appellant claims that the procedures employed by the trial court in establishing contempt violated due process.

On February 20, 1987, appellant appeared before Judge Stanley Kubacki, the trial judge, on a motion to suppress evidence following appellant's arrest for robbery and other related charges. The motion was denied. The court appointed public defender Edson Bostic to represent appellant. During voir dire appellant informed Judge Kubacki that he wished to dismiss trial counsel and to hire a private attorney. The judge denied the request. Appellant then began to comment aloud, objecting to the fact that the trial judge ordered the trial to begin despite the fact that two defense witnesses were not present. He also stated that he wanted to address the jury. During a court recess, and after some discussion, appellant agreed to keep quiet.

[ 367 Pa. Super. Page 9]

Following another court recess, near the completion of jury selection, Judge Kubacki asked, "Does anybody feel he couldn't give this defendant or the Commonwealth a fair trial?" Appellant answered, "Me, your Honor." The judge responded, "I want you to keep quiet."

During the next recess trial counsel informed the court that appellant had been on "acid" in the past and that he was having a "flashback" and wanted to be excused or examined by a doctor. The court denied the request. After the twenty veniremen had been selected and were seated in the jury box, appellant suddenly fell out of his chair head first and lay on his back, apparently unconscious. The jury was excused. The court crier took appellant's pulse and found it to be normal. The trial judge stated that appellant was "faking" and refused to order the rescue squad. However, the rescue squad did arrive and, after finding that appellant's vital signs were "good," refused to conclude that appellant had had a "fit," but suggested that a medical doctor must make such a determination. One attendant did comment, in answer to the judge's inquiry, that appellant "was probably faking."

Trial counsel motioned for a new trial and requested a new jury. The trial judge responded, "We are going to get a new jury, yes, probably tomorrow. So keep yourself available." Sheriffs McGuire and Levini accompanied appellant to the hospital. It appears from appellant's brief that the medical report prepared by the physician who examined appellant at the hospital, indicated that appellant had suffered a "syncopal episode secondary to possible seizure disorder," that appellant had previously taken seizure medication, and that at the time he was taken to the hospital by the sheriffs, he was given a drug known as dilantin. At the time appellant was discharged from the hospital, the treating physician prescribed continuing daily doses of this drug.

The following day, February 26, 1987, when appellant and trial counsel appeared in court, certain papers were being marked as Commonwealth's exhibit C-1. These documents

[ 367 Pa. Super. Page 10]

    comprised the treating physician's report which the sheriffs had transported from the hospital to the courtroom. Trial counsel remarked, "Can I ask the purpose of marking these documents? I don't know what proceeding we are having at this point."*fn1 The following discussion took place:

THE COURT: We have learned that the stories that he told us yesterday were not true. The stories that he told the people, the doctors at Giuffre [hospital] were not true and there are many conflicts. This Court is of the firm belief that all this was contrived. It was an act yesterday. He had tried everything to delay the start of this trial. And in desperation, he did what he did in order to delay the administration of justice. And his act was a contemptuous one yesterday.

THE DEFENDANT: That is not true, Your Honor.

THE COURT: I am holding him in contempt.

MR. BOSTIC: May I? I think I have specific objections to the medical records at this point in time. First of all, we would object to any documents being submitted here without the custodian of records, ...

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