Com. v. Boring

• Decision Date: 18 December 1995
• Citation: 684 A.2d 561,453 Pa.Super. 600
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert Charles BORING, Appellant.
• Court: Pennsylvania Superior Court

Page 561

684 A.2d 561

453 Pa.Super. 600

COMMONWEALTH of Pennsylvania, Appellee, v. Robert Charles BORING, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 18, 1995.

Filed Aug. 23, 1996.

Theodore J. Krol, Assistant Public Defender, Hollidaysburg, for appellant.

Douglas J. Keating, Assistant District Attorney, Hollidaysburg, for Commonwealth, appellee.

Before BECK, POPOVICH and BROSKY, JJ.

POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Blair County following appellant's conviction on the charge of murder of the first degree. Herein, appellant contends: 1) The verdict was against the weight of the evidence; 2) The trial court erred in not recusing the Blair County District Attorney's office from prosecuting him; 3) The trial court erred in dismissing defense counsel's motion for change of venue, advancement of the jury pool list and individual voir dire; 4) The trial court erred in permitting Sergeant Donald Hand to testify regarding statements made by appellant because the statements were not revealed to the defense until the day before trial; 5) The trial court erred in not granting a mistrial relative to Commonwealth witness Ronald Isenberg's statement that he took a polygraph test; 6) The trial court erred in precluding defense counsel from impeaching Commonwealth witness Ronald Isenberg; 7) The trial court erred when it prevented James Isenberg from testifying that criminal charges filed against him, where Ronald Isenberg was the key witness, were nolle prosed by the Commonwealth; and 8) The trial court erred in preventing defense witness Ester Updike from testifying as to the character trait of Ronald Isenberg for dishonesty. Having reviewed the record, the parties' briefs and the applicable law, we affirm.

The following is a brief recitation of the pertinent facts in this case: On July 5, 1975, the naked, dead body of victim was found lying on the floor in the living room of her second floor apartment. Following an autopsy, it was determined that victim's death was a homicide. Appellant was questioned by the police about the incident on July 6, 1975, and on November 25, 1975. At this time, appellant was not arrested in connection with the homicide.

Some years later, appellant was in prison awaiting a disposition on a robbery charge. While he was in prison, he told two other inmates, Ronald Isenberg and Thomas Stewart, that he had murdered victim, but that the police could not prove it. This information was given to the police by Ronald Isenberg and Thomas Stewart. Subsequently, appellant was arrested for the murder of victim and was charged with murder of the first degree. Following a verdict of guilty by a jury, appellant was sentenced to life in prison. Appellant did not file post-sentence motions, but he did file a statement of matters complained of on appeal according to Pa.R.A.P. 1925(b). The trial court affirmed the judgment of sentence, and this appeal followed. ¹

Appellant's first contention is that the jury's verdict of guilty was contrary to the weight of the evidence. We are unable to address this issue because appellant has failed to file post-sentencing motions. In Commonwealth v. Robinson, 450 Pa.Super. 428, 676 A.2d 249, 250 (1996), this Court specifically held that appellant's claim that the verdict was against the weight of the evidence was not reviewable on appeal where appellant failed to file post-sentencing motions raising the issue. We further stated the following:

This is not an issue of waiver. Even though, as a general rule, a defendant need not file a post-sentence motion in order to preserve issues for appellate review, a weight of the evidence argument may be addressed only by the trial court. Therefore, a defendant who wishes to seek a new trial on grounds that the verdict was contrary to the weight of the evidence, must necessarily raise the issue via a post-sentencing motion in the trial court. If the trial court denies the motion, the defendant may then file an appeal in which the trial court's exercise of discretion will be subject to review.

[A] panel of this court has held that, even if the trial court has filed an opinion pursuant to Pa.R.A.P. 1925(a) in which it addresses the weight of the evidence issue, the trial court had no basis upon which to grant a new trial without a motion for a new trial before it. Thus, it could not exercise its discretion in granting or denying same.

Id. 676 A.2d at 250 (emphasis added) (citing Commonwealth v. Holmes, 444 Pa.Super. 257, 663 A.2d 771 (1995)). See Commonwealth v. Widmer, 446 Pa.Super. 408, 667 A.2d 215 (1995). Accordingly, we find appellant's weight of the evidence issue unreviewable on appeal.

Appellant's second contention is that the trial court erred in failing to disqualify the entire staff of the Blair County District Attorney's office from participating in his trial. Specifically, appellant alleges that a conflict of interest existed within the district attorney's office during the pendency of his trial. This allegation arises from the fact that at the time the public defender's office began representing appellant, and for numerous months thereafter, Philip Robertson, Esq. was a public defender for the Blair County Public Defender's office. In addition, his wife, Amy Robertson, was the sole investigator for the public defender's office during appellant's preliminary hearing and a substantial period of time prior to his trial. Subsequently, after appellant's preliminary hearing but before his trial, the couple became employed full-time by the Blair County District Attorney's office, and remained employed by the district attorney's office throughout appellant's trial.

It is important to note that while Attorney Robertson was a public defender, he never provided representation to appellant. In fact, there is no evidence that either Attorney Robertson or Investigator Robertson participated in appellant's defense while they were employed by the public defender's office. While they were employed by the public defender's office, the couple did not have contact with appellant's file or with appellant. Moreover, they had only limited contact with the public defender who was representing appellant. In addition, it is undisputed that neither Attorney Robertson nor Investigator Robertson had any contact with appellant's case while they were employed by the district attorney's office.

Appellant urges us to find that there was an "appearance of impropriety" and impute disqualification under Rule 1.10 of the Pennsylvania Rules of Professional Conduct. The particular question in this case regarding the alleged conflict of interest is novel in the appellate courts of Pennsylvania. However, our courts have addressed similar situations.

In Commonwealth v. Miller, 281 Pa.Super. 392, 422 A.2d 525 (1980), we considered the conflict of interest problem created when a former public defender joins the district attorney's office and a defendant moves for disqualification of the entire office because a different member of the public defender's office previously represented a co-defendant. We determined that disqualification of the entire office was not necessary because the attorney took no part in the trial of the defendant and had not imparted any information concerning the case to the district attorney or his staff. Miller, 422 A.2d at 528. We were "unable to ignore the devastating impact that disqualifying the entire district attorney's office would have if such a broad disqualification were ordered." Id. at 529. Rather,

[i]nstead of opting for such an extravagantly indulgent application of the 'appearance of impropriety' standard [encouraged by appellant], ... [we] prefer[ed] ... to rely on the integrity of the district attorneys of this Commonwealth not to participate in the prosecution of cases when such prosecution would generate an appearance of impropriety.

Id. at 529.

Similarly, in Commonwealth v. Harris, 501 Pa. 178, 460 A.2d 747 (1983), our supreme court relied on Miller's rejection of the "appearance of impropriety" standard and declined to disqualify the entire district attorney's office from representing the Commonwealth when the District Attorney, a former Chief Public Defender, had once represented the defendant in a prior Post Conviction Hearing Act appeal. Rather, the court adopted a "more objective and flexible standard" requiring a case-by-case determination of whether the prosecutor engaged in "actual impropriety" causing prejudice to the defendant in situations where the defense attorney enters the proceedings at the post-trial level and then subsequently joins the prosecutor's office. Harris, supra.

Recently, in Euell v. Rosemeyer, 153 F.R.D. 576 (W.D.Pa.1993), the United States District Court for the Western District addressed a situation similar to that in this case and applied the modern Pennsylvania Rules of Professional Conduct. ² In Euell, defendant filed a motion to disqualify the entire district attorney's office from participating in his habeas corpus action because at trial he was represented by James Vogel, Esq. of the public defender's office, who later became a member of the district attorney's office during defendant's petition for habeas corpus. The federal court denied the defendant's petition.

As the federal court pointed out, "[t]he determination as to whether to disqualify counsel because of a conflict of interest is within the discretion of the [trial] court." Euell, 153 F.R.D. at 577. The federal court then analyzed the Pennsylvania Rules of Professional Conduct and determined that "because of the extensiveness of Rule 1.10 and the potentially burdensome effect on the government, the government is much better served ... by the protections stated in Rule 1.11." Id. (citation omitted). The court then noted that Rule 1.11 "does not require disqualification of the other lawyers in the agency in which the...