Commonwealth v. Duffy

148 supported by must be explanation that the explained,

be the child's welfare if a determination record, and that v. should be called. Gunter witnesses it, further requires (1976); A.2d 307 Common Gunter, Pa.Super. 144, 331 A.2d Ulmer, 231 Pa.Super. ex rel. Ulmer wealth Shuster, 226 ex rel. Grillo (1974); (1973). The welfare of A.2d 58 229, 312 Pa.Super. As remand important. may is also in a case divorce parties in a case, so it be custody child in a appropriate as the remand is appropriate way I think case. Here divorce of both Our parties. the interests recognize likely most street — no his wife out on the to put a husband permits law herself, if support and unable she be sick matter that it; but let the was not. So be and he was at fault she his case. prove husband vacated and the record should be of divorce

The decree master, and for hearings further remanded a second report. the master of the submission and files a J., in this VOORT, joins opinion der VAN dissenting opinion. separate VOORT, Judge, dissenting: der

VAN Opinion my colleague, Judge Dissenting join I I would reverse the decree SPAETH, except complaint. and dismiss the below, the divorce refuse court A.2d 157 Pennsylvania COMMONWEALTH DUFFY, Appellant. David Pennsylvania. Superior Court 15, 1976. Argued Nov. Dec. Decided Mellon, appellant. Pittsburgh, M. Richard Anthou, E. Assistant District Canons- George Attorney, Costa, Attorney, Bentleyville, Jess D. District burg, and Commonwealth, appellee. a brief for submitted HOFFMAN, JACOBS, CERCONE, PRICE, VAN Before SPAETH, and JJ. VOORT der VOORT, der Judge:

VAN to our Court from of sentence judgment is taken Appeal verdict and denial of rendered, following jury post-trial crimes motions, an indictment the of accesso- charging upon charges The stemmed receiving and stolen property.1 ry into 4, 1972,burglarious entry gun shop from December Four, Pa., rifles, removal of and the therefrom Eighty in handguns, ammunition. shotguns, trial, dire, of to voir morning prior Judge On court, of met the chambers GLADDEN he when counsel mentioned that had where and defense one Attorney the office of the District "that learned from make some statement might impli witnesses prosecution in some way disposition me cating [counsel himself] from the Notes of (Quoting Testimony these weapons." 24, 872, Code”, Act of June P.L. P.S. §§ 1. “The Penal respectively. A demurrer was sustained to third and 4817 Act, id., charge, conspiracy, 4302. § trial, 2).2 p. the Commonwealth stated his ignorance of the truth of the statement, agreed with defense counsel that it would be prejudicial, if used, stated that the prosecution had no intention of permitting testimony be aired. And trial, during which began immediately after the above-referenced discussion in cham bers and lasted from March 25 through 1974, not the hint of this slightest allegation, either by direct statement or inference, placed within the hearing How jury. ever, appellant now argues that he was denied effective assistance of counsel, and that his counsel was in his crippled ability represent him due to the disclosure at trial of this unfounded allegation. The argument is wholly without merit because the never heard this charge, and thus in no way could it be prejudicial to either defendant or his counsel.3 Appellant's present argument is undermined by the fact that counsel took no action to be relieved from serving, and we must conclude that his expressed belief that he was rendered unable to be an effective advocate was not recognized at the trial stage. Appellant suffered no preju dice, and was represented to the fullest extent coun sel; there is no error. Appellant's second argument is that he was denied the presumption innocence when the lower court in its charge referred to him as "prisoner".4 The one use of the word "prisoner" arose in the court's discussion of the common law crime of accessory the fact: "[E]ven Stitt, III, formerly 2. Counsel was Robert K. a member of the bar from Allegheny County, September disbarred on meeting 3. We note also that the following chambers occurred panel jurors, selection of the body but before twelve of that were sworn; selected and prior thus the statement arose to trial. The objection preserved trial, was not and in the strictest theoretical sense could be considered waived. brief, appellant In his argument has added a second to the claim of having officer, presumption been shorn of the police innocence — thata clothes, present in street was objection at voir dire. This raised and overruled at the prior conference in chambers to the start (see above). of trial first preserved issue by This was not inclusion post-trial Stitt, by motions filed or by the amended motion filed Attorney Ferito, Stephen D. Clair, and is waived. Commonwealth v. (1974). 458 Pa. 326 A.2d 272 not have been the actual perpetra the though prisoner crime, if he falls within the definition of an tor of . . he is to be treated then fact accessory in he were fact the though law in as every respect in the offense." from the (Quoting who committed person 234). Following jury's retire Testimony, p. receiving the fact stolen burglary larceny, property, conspiracy. 25, 1974, Trial scheduled March in Washington Court of Common Pleas. On County that date, after selecting seating panel of jurors, but dire, voir conducting prosecutor, appellant’s coun- sel, and the trial court in engaged the following interchange at sidebar:1 . . . Office of the District

“[Defense counsel]: [T]he has that one Attorney suggested prosecution of the witness- es make might some statement implicating me in some way in the disposition of these If weapons. that’s case, I would ask for the revelation of that information immediate- and ask for a continuance ly give defendant an opportunity obtain other counsel. Such a thing occurring in the middle of a would be trial extremely prejudicial to my client. . Honor, Your . . it is intention my

“[Prosecutor]: evidence, not to introduce that I am not certain whether it is not, event, valid or in Ibut any don’t want it in the case in any—

“THE COURT: Is it relevant to this case? is, think, It I if true, it were but I think it

“[Prosecutor]: would be so prejudicial it might vitiate the case alto- gether. The suggestion, by one of apparently

“[Defense counsel]: witnesses, I was that was to be the recipient of some of fee, fruits order of is that correct? That’s correct. “[Prosecutor]: I don’t think there is any suggestion

“[Defense counsel]: that I ever them, received actually but it’s this sort of nonsense that would be highly prejudicial to Mr. Duffy. Well,

“THE COURT: the District Attorney has advised the Court that do not intend they permit evidence to placed the record. Majority erroneously interchange states that occurred However, chambers. place while the discussion did take presence jury, alleges of the any no one part that the overheard interchange. necessary would take the I certainly counsel]:

“[Defense from, so that there is— this came whoever to caution steps District Attorney direct the We would “THE COURT: will your we overrule understanding that, with that do exception.” an Note objection. which evidence any did not introduce The Commonwealth in the of the fruits disposition counsel appellant’s implicated emerged crime; allegation to this no reference the of trial. on the 1974, appellant 27, jury acquitted March

On on all other verdicts guilty but returned charge, conspiracy trial counsel filed 1, 1974, appellant’s April On charges. to Pa.R.Crim.P. pursuant motions post-verdict written the issue did not raise Counsel Appendix. 1123(a); P.S. 1974, 30, September On of interest. conflict of a possible motions, the the post-verdict action on further any counsel appellant’s disbarred Court Supreme Pennsylvania in the of mail fraud charges on his conviction of because Thereafter, court. federal district Pennsylvania Western an amended mo- who filed new counsel retained appellant that: claimed which specifically a new trial tion for repre- the defendant to be in permitting erred “The Court been advised Stitt, having after Esquire, Robert by sented fearful that one poten- that he was Stitt, Esquire Robert by some of the receiving him with would implicate witness tial showing possible involved thus herein of the crime fruits the defendant of to deprive sufficient of interest oral hearing counsel.2 After of adequate motions. post-verdict denied all lower court argument, 4y2-10 to a 1975, appellant court sentenced 5, May On appel- also ordered The court imprisonment. term of year to the in the amount $6000 restitution to make lant 259, Hubbard, (1977) 2. Commonwealth of ineffective assistance raise claims requires new counsel opportunity possible after he undertakes prior at the earliest counsel By raising of ineffective assistance the claim representation. trial, appellant's new for a new amended motion counsel complied with Hubbard. counsel This victim, prosecution. appeal the costs of the and to pay followed. could not effec that his trial counsel contends

Appellant counsel labored under a conflict him because represent tively that counsel had allegation from the stemming of interest from as weapons appellant part to receive stolen agreed has declared Court Supreme his fee.3 United States Constitution right guaranteed dedicated solely the services of an contemplates Gillies, his client. Von Moltke v. the interests of U.S. v. United Glasser 708, 725, (1948); 92 L.Ed. 309 68 S.Ct. Succinctly, States, (1942). 86 L.Ed. 680 315 U.S. S.Ct. conflict of interest arises where impermissible] "[ advice to the giving is faced with the task where the lawyer courses of action stands optional client adoption from the of one course to personally to benefit ex rel. v. exclusion of the other." United States Simon (E.D.Pa. 1972). While most Murphy, F.Supp. multiple repre of interest cases involve a lawyer's conflict co-defendants, ". . . the constitutional sentation of is not confined to instances of that principle narrowly type. Majority properly frame and this 3. I believe that the does not address appellant argues Majority states that “. . now issue. The that he was denied effective assistance of counsel and that his crippled ability represent was in his him due to the counsel (At 151) allegation.” (Emphasis disclosure at trial of unfounded fact, supplied). appellant argues In that the now mere existence of potentially damaging counsel’s adequacy conflict of interest eviscerated the representation, regardless of counsel’s of whether the implicating appellant’s overheard the sidebar discussion counsel in Moreover, receiving property. appellant the crime of stolen does not unfounded; allegation that the I am unable to concede how the discern Majority charge that the lacks merit. has determined Majority presented Because the misconstrues the issue to us may appellant, appellant’s it trial counsel have waived intimates that (At 151, pre-trial objection by failing his to reiterate it at trial. 3). However, expected is not to raise his own footnote ineffectiveness, expected to divine and at and a defendant is not raise own, trial, his his trial counsel’s conflict of interest. Common- Hubbard, Booker, supra; Pa.Super. wealth v. Commonwealth (1971). Appellant’s trial coun- 280 A.2d 561 new counsel raised due to a conflict of interest at the earliest sel’s ineffectiveness possible opportunity and, thus, properly preserved this issue for our 2, supra. consideration. See footnote to an sensitivity reflect judiciary The cases whenever counsel is so principle obligation apply his services substantially the caliber of situated that the client's interests between Competition diluted. result, we threatens plainly counsel's own interests corrupts relationship the conflict have no doubt client calls for a course of action to his duty when counsel's United avoid." that he suggests which concern himself (D.C.Cir. 1976).4 Hurt, 543 F.2d 162, 166 States most considered frequently courts have Pennsylvania between counsel a defend of conflict interest claims trial. represented defendants multiple ant when counsel Russell, Whitling ex 45, 48, rel. In (1962), Supreme our Court adopted rule: following prophylactic defendant, more

"If, than one arises, existence of such a interest mere conflict of no actual though even vitiates the proceedings, result, that such harm potentiality harm results. The than that such harm did result, furnishes the appropriate rather Responsibility, appel- with the of Professional 4. In accordance Code allegation have withdrawn once lant’s trial counsel should criminal provide: complicity Ethical 5-1 and 5-2 surfaced. Considerations exercised, lawyer judgment professional of a should be within “The law, solely for the benefit of his client and free of the bounds of compromising ests, personal loyalties. his inter- influences and Neither clients, persons nor the desires third the interests other loyalty permitted to his to his client. should be dilute accept proffered employment personal not if “A should will, probability they there is a that interests or desires or reasonable will, given adversely be to the advice to or services be rendered affect accepting employment, lawyer prospective a client. After care- the fully acquiring property right assuming a refrain or a should from protective position judgment would tend make his less to Moreover, 5-101(A) pro- Disciplinary Rule interests of his client.” vides: disclosure, “(A) Except his after full a with the consent of client professional accept employment if of his not the exercise shall reasonably judgment will be behalf of his client be or business, financial, personal property, or own inter- affected ests.” agreed truthful, allegation should never have If the appellant. represent to

157 terion." in (Emphasis original). The Whitling cri court rule it adopted prophylactic because was necessary ". preclude . to such from putting him

self in a he position where required to choose between conflicting duties or to be led to an attempt reconcile conflicting interests rather to enforce, than to their extent, full the rights of the whom he party should alone represent." supra 49, 406 Whitling, Pa. at 176 at A.2d Breaker,

In Commonwealth 341, -45, Pa. 456 344 318 354, A.2d 356 (1974), our Supreme Court reaffirmed its approval prophylactic rule formulated in Whitling and applicable summarized rules in dual cases:

"First, '[i]f, the representation of more one than de fendant, a conflict of interest arises, the mere existence of such conflict vitiates the proceedings, even though no actual harm results. The potentiality that such result, harm may rather than such harm did result, furnishes the appropriate terion.' Commonwealth ex Russell, rel. Whitling cri 48, 176 45, 641, Second, A.2d 643 (1962). a defendant must demonstrate that a conflict of interest actually existed trial, because `dual representation alone does not amount to a interest.' Wilson, Commonwealth v. 429 Pa. 458, 463, 498, 501 (1968); ex rel. 139, Corbin v. Myers, 419 Pa. (1965), A.2d 356 cert. denied, 1013, 386 U.S. 1361, 87 S.Ct. 18 L.Ed.2d (1967). Third, make the dual representation rise true `[t]o conflict, need not show appellant that actual resulted,. . harm

. but he must at least show the of harm. possibility . . .' Wilson, Commonwealth v. supra, 429 463, Pa. at Fourth, 240 A.2d 501. appellant will satisfy the requirement of demonstrating harm, possible show, if can alia, he inter `that he had defense inconsistent with that advanced by client, the other or that counsel neglected his case in order give the other client a more spirited defense.' Accord, Id. Cox, Commonwealth v. Pa. A.2d (1970) (footnote (plurality opinion)." omitted) (Emphasis original). also See Commonwealth Knight, 245 Pa.Super.

158 Wilson, v. 429 Pa. 337, (1976); 431 Commonwealth 369 A.2d Westbrook, v. Commonwealth 245 458, (1968); A.2d 498 240 v. John 174, (1976); 350 Commonwealth 369 A.2d Pa.Super. Note, 307, (1973). Maintain son, 299 A.2d 367 Pa.Super. 223 Judgment — Professional Attorney's Independent ing (1975). In 5, particular, L.Rev. 675 79 Dickinson Canon the assistance of have right Breaker stressed "[t]he and absolute to allow courts is too fundamental to the as amount prejudice in nice calculations indulge 346, Pa. at at its 456 318 A.2d Supra, from denial." arising States, supra, from Glasser v. United 315 U.S. (quoting sum, an relief 457). appellant seeking In 76, 62 S.Ct. Breaker, that his v. must demonstrate Commonwealth under with interests divergent to serve clients attempted joint may possibly of this representation that the strain defense.5 imperiled appellant's have not confronted claims of frequently courts have Appellate and an accused outside of interest between counsel However, when context. so multiple representation the central mes confronted, have reinforced they uniformly counsel must give cases: multiple representation sage If counsel and client have to his client. loyalty undivided potentially compromise which could interests divergent his client and conduct dedication to counsel's For defense, example, will be mandated. then retrial (1975), 341 A.2d 896 Takiff, judge 462 Pa. Pirillo conducting a inves special a regular grand supervising attorney from corruption police disqualified into tigation testify scheduled to be police twelve officers representing Court Pennsylvania Supreme jury. the grand fore (1977), Dunlap, our In curiam, per Supreme rejected a contention that a new trial Court aggravated prosecuting in an should be because ordered battery represented victim in a civil suit had assault and case arising Justice Roberts authored a dissent incident. from same Justices, by ing joined focussed on the opinion, two other which representation. potential dual See also Common for abuse such (1974) (Dissenting Dunlap, Pa.Super. A.2d 364 wealth Hoffman, Whitling by J.) Duniap change pro not Opinion does pertaining counsel. phylactic to dual defense rule However, affirmed. instead of basing its results on the existence and possible repercussions multiple representa tion, the Court on focussed retention attorney's payment by the Fraternal Order of (F.O.P.). Police The F.O.P. had a adopted tactic of non-cooperation with the investigation. A lawyer dependent on the F.O.P. his fee have an would interest in advising individual clients to "stonewall" the investigation, even if that client might gain from a strategy co-operation. Because the lawyer owed conflicting to obligations employer client, our Supreme Court concluded that the lawyer could not effectively rep his resent client and had to be disqualified. Case, Cf. Salus's 321 70 In (1936); Abrams, Pa. 184A. re 56 N.J.

A.2d 275 (1970). who (Lawyers represented "numbers run ners" disciplined because they were retained and paid by gambling syndicates runners; who had hired attorneys paid syndicates such were unlikely recommend that their clients with co-operate a state investigation of gambling.) Hurt,

In United States U.S.App.D.C. 543 F.2d 418, the District Columbia Court of Appeals upheld claim of interest between appellate counsel and his client. On appeal, claimed that trial counsel had not provided effective representation; the circuit court re- manded for an evidentiary hearing this claim. Subse- trial quently, counsel filed a two million dollar libel suit against appellate counsel. At the remand hearing, appellate counsel, afraid to “republish” libel, the alleged asked to withdraw from further representation of his client. The district court refused to release counsel it because believed that all statements at would hearing be absolutely privileged. At the end of the hearing, the district court rejected defendant’s claim of ineffective assistance of trial counsel. On appeal from that determination, the District of Columbia Circuit Court of Appeals held that the district court erred in refusing to allow withdraw, counsel to regard- less of whether or not his statements were absolutely privi- leged. Appellate counsel, rightly or feared wrongly, vigorously pursuing his client’s ineffectiveness claim might As a in the libel suit. conse- his own

endanger position his duty have forsaken his to advocate counsel may quence, guard order to fearlessly effectively interest client’s own self-interest. F.Supp. Murphy, ex rel. Simon In United States a new trial to a (E.D.Pa.1972), granted the district court with her husband. Trial counsel murdering charged wife life of his fee from husband’s part take agreed which the wife would receive if proceeds insurance policy not acquitted, If the wife was she acquitted. of his fee. district court part would lose this have if her might pleaded guilty that the defendant found bargain offer her. plea had communicated pecuniary interest lawyer’s blatant conflict between This to client all possible advise his of professional duty his and necessitated a new trial. options of multiple representation line Whitling-Breaker Hurt, Takiff, v. cases, Pirillo v. United States ex all stand for a Murphy States rel. Simon United must be proposition: lawyer fundamental common and If the interest to his or her client's interests. solely devoted self-interest has the lawyer's potential clients or the of other client, of a then the client will his impair to a new trial. entitled to case, a Commonwealth witness potential In the instant to receive agreeing of stolen attorney accused appellant's short, of his fee.6 In had been as property part same crime as his client. very participating accused of allegation counsel revealed to not disclose that 6. The record does DR5-101-A, Responsibility, client. See Code of Professional his Association, 4, supra. Bar Standards Criminal American footnote Justice, Function, 3.5(a) provides Relating to the Defense Standards that: opportunity defense counsel should dis- the earliest feasible “At any in or with the or interest connection case close to the defendant might any be relevant to the defendant’s selection other matter represent him.” to truthful, course, appellant allegation would if the know. Of However, repercus- might range appellant not understand the full lawyer’s complicity. that could result from his to his defense sions Booker, supra. I believe that this allegation alone raised a conflict of interest between and his counsel appellant which have may prejudiced appellant. Breaker, Commonwealth v. supra. need demonstrate that a Appellant only potential for abuse existed; relationship client-attorney appellant bears no this abuse obligation prove occurred. actually States, Glasser v. United supra; Breaker, Commonwealth v. Johnson, Commonwealth v. supra; supra. has shown a for abuse in

Appellant potential the case at bar. Instead of his undivided effort giving loyalty client, have altered his may of the case handling to serve his own self-interest in escaping further into inquiry his conduct. Hurt, United supra. States For example, counsel may not have pursued possibility guilty plea negotiations behalf of his client. Regardless of whether the allegation of criminal conduct contained seeds of any truth, counsel have realized that only acquittal would vindicate his totally interests as well as his client's Moreover, interests. a guilty plea might be the first link in a chain connecting counsel to the disposition of the stolen property. Armed with appellant's guilty plea and the state witness, ment of its potential the Commonwealth may well have decided to indict appellant's attorney next. The Com monwealth even have decided to condition a guilty plea offer on appellant's willingness incriminate his attorney; this offer could not be communicated so as long appellant's original counsel remained in the case.7 In short counsel's self-interest have may precluded thorough exploration benefits to be gained through co-operation with the Com monwealth. Commonwealth ex rel. Simon v. su Murphy, Takiff, Pirillo v. In pra; supra; the Matter of Abrams. counsel Additionally, have altered his may trial strategy Responsibility, Disciplinary 7. See Code Professional Rule 7- 104(A)DR7-104(A) provides, pertinent part: “During representation lawyer the course of his of a client a shall not: (1) subject or Communicate cause another to communicate on the party represented by with a he knows to be lawyer prior in that matter unless he has the consent of the representing party such other or is authorized law to do so.” of his alleged agreement revelation possible prevent have In particular, receive stolen property. witnesses cross-examination of Commonwealth restricted his of the stolen alleged possession to his client's regard with has met his burden of Accordingly, appellant property. existed, (2) interest (1) a conflict of demonstrating from this conflict of interest. for abuse arose a potential Breaker, States, supra; v. United Glasser supra. counsel, accused of partici- and his trial

Because appellant crime, had a conflict of interest which in the same pating I dis- appellant, respectfully have detrimental to been newa trial. grant appellant sent and would SPAETH, JJ., join dissenting opin- in this CERCONE ion. Leidy, Appellants, W. LEIDY and Elizabeth S.

Franklin ENTERPRISES, INC., Body Shop d/b/a DESERET Defendant, Spa,

Health Leidy, Kathy Ann Robinson and Elizabeth S. Defendants. Additional Kathy Appeal of Ann ROBINSON. Pennsylvania. Superior Court of Dec. 1976. Argued Dec. Decided Notes deliberation, by the statement the court was ment for attention, objection formal or albeit without brought to its our duty or correction. It is to for amendment suggestion to if reversible error a determine is as whole charge read Stoltzfus, be found. Commonwealth case, we conclude in the instant (1975). doing So A.2d 873 court, its in a instance of the single in use the lower law on the instructing pertain in word "prisoner" not erred. Repeated before the fact has ing accessory be prisoner", as "the could prejudi to a defendant reference is, sure, accused or defendant a While the cial. arrest, under being sense of one detained "prisoner" trial, person of a on trial description is while awaiting Where, or than "defendant" "accused". as less desirable once, in a where here, general context only it is used being a are the term theory given, instructions on legal prejudice to a jurors' position minds sway cannot Rumage, the defendant. See Commonwealth against (1948). Pa. affirmed. of sentence Judgment in which CER- HOFFMAN, J., dissenting opinion files a JJ., SPAETH, join. CONE HOFFMAN, dissenting: Judge, of interest have vitiated the a conflict I believe that provided appellant’s the representation effectiveness of Therefore, grant appel- I and would dissent trial counsel. trial. lant a new 4,1972, gun shop occurred at burglary On December Four, Washington County, Pennsylvania. Eighty the town of County ap- authorities arrested Washington Subsequently, before and after being áccessory charges pellant

Case Details

Case Name: Commonwealth v. Duffy

Court Name: Superior Court of Pennsylvania

Date Published: Dec 2, 1977

Citation: 381 A.2d 157

Docket Number: 597

Court Abbreviation: Pa. Super. Ct.