Com. v. Breighner

• Decision Date: 07 October 1996
• Citation: 453 Pa.Super. 477,684 A.2d 143
• Parties: COMMONWEALTH of Pennsylvania v. Ruth Lynn BREIGHNER, Appellant.
• Court: Pennsylvania Superior Court

Page 143

684 A.2d 143

453 Pa.Super. 477

COMMONWEALTH of Pennsylvania v. Ruth Lynn BREIGHNER, Appellant.

Superior Court of Pennsylvania.

Argued June 24, 1996.

Filed Oct. 7, 1996.

Jean Arena, Assistant Public Defender, Gettysburg, for appellant.

Michael George, District Attorney, Gettysburg, for Commonwealth, appellee.

Before McEWEN, President Judge, and DEL SOLE, BECK, TAMILIA, KELLY, POPOVICH, JOHNSON, HUDOCK and SCHILLER, JJ.

BECK, Judge.

We decide, inter alia, whether a district attorney who cannot prosecute a matter due to a conflict can authorize a prosecutor from another county to act or whether the conflicted district attorney must refer the matter to the Attorney General. We hold that the conflicted district attorney must refer the matter to the Attorney General.

In March of 1992 appellant Ruth Lynn Breighner was driving a car that collided with another vehicle. The collision, which occurred in Adams County, caused the death of the driver of the other car and seriously injured the passenger. As a result, Breighner was convicted of homicide by vehicle while under the influence, ¹ involuntary manslaughter ² and related charges. ³ She was sentenced to an aggregate term of three to seven years in prison and now appeals her judgments of sentence. We reverse and remand for a new trial.

Breighner's first claim of error regards a conflict of interest on the part of the prosecutor in the case. She also asserts that the evidence was insufficient as a matter of law to sustain her convictions. We address her sufficiency claim first since a finding in her favor on that issue would result in a dismissal of the charges.

Our standard is well-established. We assess the evidence in the light most favorable to the Commonwealth as verdict winner to determine whether all of the elements of the crimes were established beyond a reasonable doubt. Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161, 1163 (1994).

The evidence presented by the Commonwealth included the testimony of the passenger who survived the collision. He was the boyfriend of the deceased. He stated that Breighner's car approached them, crossed into their lane of traffic and collided with their car. Also testifying for the Commonwealth were two persons who observed Breighner at local taverns on the night of the accident. One witness described seeing Breighner in an intoxicated state several hours before the accident. The other witness testified to seeing Breighner less than one hour before the accident. That witness observed Breighner consume four shots of liquor in a fifty minute period.

The law enforcement officer who arrived at the scene of the accident testified that Breighner was highly intoxicated. She smelled of alcohol, had slurred speech and staggered as she walked. Other law enforcement and rescue personnel described Breighner as loud and using obscenities. An accident reconstruction expert opined that Breighner's vehicle crossed the center lane and struck the victims' car. In addition to the officers, the surviving victim, the expert and the people who saw Breighner drinking heavily just prior to the accident, the Commonwealth offered the testimony of the manager of the clinical laboratory at Gettysburg Hospital. He testified that he drew Breighner's blood approximately one hour after the accident and it had an alcohol content of .264%, more than two times the legal limit.

The evidence presented clearly was sufficient, if not overwhelming, to sustain Breighner's convictions. Witness observation of Breighner consuming significant amounts of alcohol just prior to the accident, the surviving passenger's testimony regarding Breighner's erratic driving at the time of the accident, Breighner's condition at the scene of the crime and her dangerously high blood alcohol level shortly after the accident combine to establish the elements of DUI. Further, the fact that one victim was killed and another was injured when Breighner's car crossed the center lane of traffic and caused the collision supports the convictions for reckless endangerment, involuntary manslaughter, homicide by vehicle and homicide by vehicle DUI. We reject Breighner's sufficiency claims.

Breighner's second issue involves an inquiry completely separate from the tragic circumstances of her crimes. Some time after Breighner's arrest, a civil action was filed against her on behalf of the deceased. The plaintiff in that action retained the services of the law firm of Swope, Heiser and McQuaide. The district attorney of Adams County is a member of that firm.

After the civil action was filed, the Adams County District Attorney, Roy Keefer, disqualified himself from the prosecution because he was a member of the firm bringing the civil action and, therefore, had a conflict in proceeding in the case. Mr. Keefer (the "conflicted district attorney") appointed then Cumberland County District Attorney, now Pennsylvania Superior Court Judge, J. Michael Eakin (the "designated prosecutor"), to handle the case. Breighner's counsel filed pretrial motions to disqualify the designated prosecutor based on a conflict of interest. These motions were denied by the court.

Breighner now brings the issue before this court, asserting that she was deprived of a fair trial because the conflict of the original district attorney was transferred to the designated prosecutor whom the conflicted district attorney chose. Breighner requests a new trial.

In her motions to disqualify, Breighner asserted that Mr. Keefer's act of choosing who should prosecute this case did not cure the conflict that existed on the part of the Adams County District Attorney's Office. Breighner requested that Mr. Keefer refer the case to the Attorney General's Office under the authority of the Commonwealth Attorneys Act (the "Act"). That statute provides, in pertinent part:

Prosecutions.-The Attorney General shall have the power to prosecute in any county criminal court the following cases:

* * * * * *

Upon the request of a district attorney who lacks the resources to conduct an adequate investigation or the prosecution of the criminal case or matter or who represents that there is a potential for an actual or apparent conflict of interest on the part of the district attorney or his office.

71 P.S. § 732-205(a)(3).

Breighner concedes that the Act is not mandatory; however, she argues that referral to the Attorney General is the only way to cure the taint of the conflict. Essentially she claims that once the conflict arises, the conflicted district attorney can no longer make any decisions regarding the case, including whom he deems the proper person to handle the case. In response, the Commonwealth argues that Mr. Keefer's appointment of a neighboring county's district attorney to try the case, coupled with that attorney's independent prosecution of the matter, negates the conflict that once existed.

In Commonwealth v. Eskridge, 529 Pa. 387, 604 A.2d 700 (1992), our supreme court considered whether it was appropriate for a district attorney to delegate to an assistant the prosecution of an individual who was a defendant in a civil case in which the district attorney represented the plaintiff. The underlying facts were similar to this case. Eskridge was charged with homicide by vehicle and related charges in connection with a car accident and the death of one of his passengers. A civil lawsuit also was brought against Eskridge. Because the district attorney of Beaver County was a member of the firm representing the plaintiff, he assigned the matter to an assistant. Prior to trial, Eskridge raised the conflict issue. The district attorney initially offered to refer the matter to the Attorney General; however, the prosecutor handling the case alluded to a potential Rule 1100 problem should such a referral occur. Not willing to waive his right to a speedy trial, Eskridge agreed to be tried by the designated prosecutor.

The Eskridge court made a number of observations in deciding the issue before it. First, it noted that the district attorney had a direct financial interest in obtaining a conviction in appellant's case since the conviction would establish the tort alleged in the civil case. Second, the court stated that the Commonwealth improperly presented Eskridge with a "Hobson's choice," that is, the choice between a speedy trial or an impartial prosecutor. Third, the court reasoned that any prejudice suffered by Eskridge as a result of the conflict would not normally be susceptible to proof.

Eskridge holds that where a conflict of interest affecting the district attorney exists, prosecution by that district attorney or any other attorney in his office is barred regardless of whether actual prejudice can be established. Breighner asks that we extend Eskridge and hold that where the district attorney goes outside his office and appoints the prosecutor of his choice, the conflict remains.

The Eskridge court observed that the conflicted district attorney in that case maintained supervision and control of the assigned prosecutor. The Commonwealth insists that here the designated prosecutor was not under the guidance, control or supervision of the conflicted district attorney, therefore, the conflict was cured. Addressing that standard, Breighner draws our attention to the following examples of control and supervision in this case:

1) subpoenas, trial notices and letters in the case were signed by the conflicted district attorney;

2) help with scheduling and procedure was given to the designated prosecutor by the conflicted district attorney's office;

3) the designated prosecutor discussed bail issues with the conflicted district attorney;

4) the accident reconstruction expert for the Commonwealth was a witness procured by the conflicted district attorney's law partner; and

5) the designated prosecutor had a meeting with the conflicted district attorney's private law partner one week prior to trial and...