Com. v. Dunlap

• Decision Date: 03 October 1977
• Citation: 377 A.2d 975,474 Pa. 155
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania v. Marshall DUNLAP, Appellant.

Page 975

377 A.2d 975

474 Pa. 155

COMMONWEALTH of Pennsylvania v. Marshall DUNLAP, Appellant.

Supreme Court of Pennsylvania.

Argued March 11, 1976.

Decided Aug. 17, 1977.

Reargument Denied Oct. 3, 1977.

Alfred V. Papa, William M. Panella, New Castle, for appellant.

Paul W. Johnson, Asst. Dist. Atty., New Castle, for appellee.

Before JONES, C. J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

PER CURIAM:

The Court being equally divided, the order of the Superior Court is affirmed.

JONES, former C. J., did not participate in the decision of this case.

ROBERTS, J., filed an opinion in support of reversal in which POMEROY and MANDERINO, JJ., joined.

OPINION IN SUPPORT OF REVERSAL

ROBERTS, Justice.

I dissent. The district attorney who prosecuted this case also represented the victim in a civil suit arising out of the same transaction. The majority affirms appellant's conviction even though there was a conflict of interest because appellant did not establish actual prejudice. I cannot agree. I believe that where a conflict of interest arises on the part of a district attorney, the existence of such a conflict should invalidate the conviction, even though no actual prejudice has been established. Such a rule is necessary in light of the substantial and sensitive responsibilities and vast discretion which are entrusted to the district attorney.

I

Appellant was convicted by a jury of assault, assault and battery, aggravated assault and battery, assault with intent to maim, assault with intent to kill, and attempt with intent to kill.

After the jury returned the verdicts, but before argument on post-trial motions, the district attorney disclosed in open court that he represented the victim in civil proceedings arising out of the stabbing which was the basis for the criminal prosecution. Appellant contended that the district attorney had a conflict of interest which denied him a fair trial. The trial court ruled there was no actual conflict between the prosecution of appellant's case and the representation of the victim in the civil suit and denied appellant's motion for a new trial. Appellant was sentenced to two to five years imprisonment on one charge and one and one-half to three years imprisonment on another charge, to run concurrently. The Superior Court affirmed judgment of sentence. Commonwealth v. Dunlap, 233 Pa.Super. 38, 335 A.2d 364 (1975) (5-2) (Judge Hoffman filed a dissenting opinion joined by Spaeth, J.).

We granted allocatur and issued a per curiam order remanding the case to the trial court for a hearing to determine whether appellant suffered actual prejudice as a result of the district attorney's dual representation. ¹ This Court retained jurisdiction pending the remand.

On remand, the trial court made the following findings. The district attorney was assigned to this case on February 7, 1973, and had exclusive control over the prosecution. His representation of the victim began on August 29, 1973, when the victim's counsel in Pittsburgh referred the civil case to the district attorney. The civil action involved the same evidence, the same witnesses and many of the same legal and factual issues. The district attorney decided not to name appellant as a defendant in the civil action because he concluded that a judgment against appellant would be worthless. Instead, he decided to sue the owner of the bar where the stabbing took place. The district attorney did not disclose to the prosecution witnesses that he represented the victim in the civil action. On August 28, 1974, the district attorney voluntarily withdrew from the civil case.

The trial court concluded that the district attorney's dual representation did not result in an actual conflict of interest "in the sense that his obligation to the Commonwealth in the criminal prosecution was in any manner inconsistent with his obligation to the victim in the civil prosecution. Nor was his obligation to the victim in the civil action actually inconsistent in any respect with his obligations to the Commonwealth in the criminal prosecution of the appellant." It appears that the trial court concluded that appellant suffered no actual prejudice as a result of the district attorney's dual representation. A conclusion that there was no conflict of interest would clearly be erroneous. A district attorney's professional responsibility is to seek justice to protect the innocent as well as to convict the guilty. A private attorney, however, has an obligation to zealously represent his client and to seek to resolve all questions in favor of his client. Because the professional responsibilities of a district attorney and a private attorney differ, anytime a district attorney represents the victim in a civil suit at the same time that he is prosecuting the defendant, a conflict of interest exists.

II

Appellant contends that he is entitled to a new trial even though he did not establish actual prejudice. He asserts that the potential for abuse from a district attorney's conflict of interest is so great that a prophylactic rule is necessary. I agree.

This Court has long recognized that:

"Prosecutors . . . are public officials entrusted with substantial and sensitive responsibilities. They are required to act in the public interest, which includes protecting the rights of the accused. Society rightfully expects that they maintain professional competence in the exercise of their functions. . . ."

Commonwealth v. Bolden, --- Pa. ---, ---, 373 A.2d 90, 109 (1977) (plurality opinion); accord, Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, The Prosecution Function § 1.1 (Approved Draft, 1971); Pennsylvania Supreme Court Code of Professional Responsibility EC 7-13 (1974).

"(T)ime and again, this Court has stated that the district attorney is a quasi-judicial officer . . . . (T)he office of District Attorney is part and parcel of the judicial system and performs an important function in the administration of justice. Moreover, in the performance of his duties, the law grants to the district attorney wide discretion in the exercise of which he acts in a judicial capacity." (citations omitted).

Commonwealth ex rel. Specter v. Martin, 426 Pa. 102, 114, 232 A.2d 729, 736 (1967) (opinion announcing the judgment of the court).

The American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, The Prosecution Function § 1.2 (Approved Draft, 1971) provide:

"A prosecutor should avoid the appearance or reality of a conflict with respect to his official duties."

See generally Pennsylvania Supreme Court Code of Professional Responsibility EC 5-1, EC 5-2 (1974).

The important power and vast discretion vested in the district attorney mandate that where a conflict of interest exists, the proceedings should be invalidated. In our society, the district attorney has virtually unfettered discretion to determine which cases to pursue and what crimes to charge. In order to ensure that this power is properly exercised, the district attorney must be held to the highest ethical standards which include avoiding even the appearance of a conflict of interest. ² In his dissenting opinion in this case, Judge Hoffman noted:

"By its very nature, (the) discretion (vested in the prosecutor) is a subjective exercise; seldom is the motive for decision on record. . . . Our society can tolerate a system that allows such an accretion of power despite the limited ability to review the decisionmaking process because we charge the district attorney . . . with a high ethical standard. That standard the exercise of his 'judicial capacity' is breached not only by actual conflict of interest, but also by actions which have the appearance of conflict of interest."

Commonwealth v. Dunlap, 233 Pa.Super. 38, 46, 335 A.2d 364, 368 (1975) (dissenting opinion of Hoffman, J., joined by Spaeth, J.). ³ (Emphasis in original)

Moreover, the district attorney's representation of the victim in a civil suit at the same time that he is prosecuting the defendant, presents a danger that the district attorney may utilize the resources of his office for his private interests. The district attorney properly has only the master the people of the Commonwealth. His duty is to seek justice and to protect the innocent as well as to convict the guilty. In addition, when a district attorney represents the victim while prosecuting the defendant, he may be influenced by the private interest which he and his client share in the case. Yet, it is almost impossible to establish actual prejudice because of the vast discretion which we entrust to the prosecutor. As Judge Hoffman observed:

"Hence, in the instant case, neither this Court nor the appellant can know how or if the district attorney's decision to prosecute was influenced by his representation of the victim in a civil suit. The situation is too ripe, however, with potential abuse: an attorney would be hard-pressed to abandon prosecution of a defendant when a criminal conviction would be proof of the alleged tort in the civil suit; the attorney would be free to use public resources to rout out additional evidence against the criminal defendant, a pursuit based not necessarily on the prosecutor's view of the social importance of the case, but solely on the private interest which he and his client have in the case. A defendant does not have a right not to be prosecuted; he does, however, have a right to have his case reviewed by an administrator of justice with his mind on the public purpose, not by an advocate whose judgment may be blurred by subjective reasons."

Commonwealth v. Dunlap, 233 Pa.Super. at 46, 335 A.2d at 368. Dual...