Com. v. Ferri

• Decision Date: 09 October 1991
• Citation: 410 Pa.Super. 67,599 A.2d 208
• Parties: COMMONWEALTH of Pennsylvania v. Francis FERRI, Appellant.
• Court: Pennsylvania Superior Court

Page 208

599 A.2d 208

410 Pa.Super. 67

COMMONWEALTH of Pennsylvania v. Francis FERRI, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 11, 1991.

Filed Oct. 9, 1991.

Stanley W. Greenfield, Pittsburgh, for appellant.

Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before OLSZEWSKI, MONTEMURO and HOFFMAN, JJ.

MONTEMURO, Judge:

This is an appeal from a judgment of sentence entered following appellant's jury conviction on charges of first degree murder and conspiracy to commit murder. On April 28, 1983, the appellant, Francis Richard "Rick" Ferri was indicted with Anthony LaRocca for the August 2, 1982 slaying of their drug distribution partner John "Jocko" Heatherington. Heatherington, at the time of his murder, was under a federal grand jury indictment for drug distribution charges. Ferri and LaRocca discussed killing Heatherington to prevent the potential disclosure of their drug distribution network.

On August 2, 1982, Ferri met Heatherington at the Quality Inn Motel on Route 30, North Versailles, Pennsylvania. Ferri and Heatherington were seen together between 10:15 and 10:50 pm. Heatherington was shot in the hotel parking lot at approximately 11:00 p.m. He died one month later from multiple gunshot wounds to the head. Ferri was charged with one count of criminal homicide 18 Pa.C.S. § 2501(a); one count of criminal conspiracy to commit homicide, 18 Pa.C.S. § 903(a)(1); and one count of conspiracy to distribute cocaine 18 Pa.C.S. § 903(a)(1). On April 9, 1984, the trial court granted defendant's motion to sever the drug conspiracy charges as to each defendant from the homicide charges. The Commonwealth appealed this decision to the superior court which affirmed, and denied a hearing en banc. On May 6, 1986, the Commonwealth petitioned the Supreme Court for allocator. This petition was denied on December 30, 1986. On January 16, 1987, the record was remanded to the Court of Common Pleas. ¹

The Commonwealth requested and was granted its motion to sever the trials of LaRocca and Ferri. Ferri, after a trial by jury, was found guilty of first degree homicide and conspiracy to commit homicide. The sentence imposed was five to ten years for the conspiracy charge, and life imprisonment for the homicide conviction. Thirty-one post trial motions were timely filed and subsequently denied on July 28, 1989. Five issues raised by post-verdict motion are the subject of this appeal from the judgment entered. Ferri also raises five additional issues pro se. This court, however, is precluded from considering a pro se brief where a separate brief has been filed by counsel. Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990). Accordingly, Ferri's additional contentions are not discussed in this Opinion.

The first issue properly raised on appeal is whether the four year delay incident to the Commonwealth's interlocutory appeal and subsequent petition for allocator violated Pa.R.Crim.P. 1100. In addition, Ferri asserts that the delay prejudiced his ability to call certain alibi witnesses. The trial court correctly determined that the appeal was proper, and that the time during this permissible interlocutory appeal is excludable time.

Furthermore, the trial court properly held that the four year delay did not prejudice the defendant's rights. (T.C.O. at 15). An "interlocutory appeal by the Commonwealth tolls Rule 1100, compels the conclusion that defendant was timely tried." Commonwealth v. Coleman, 341 Pa.Super. 160, 163, 491 A.2d 200, 201 (1985). The court in Coleman, also noted that the Supreme Court in Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981) "held that the defendant's dubious claim of prejudice to his defense could not outweigh the Commonwealth's entitlement 'to seek appellate review of what it considered to be the improper suppression of important evidence in a first degree murder trial.' " Coleman, 341 Pa.Super. at 160, 491 A.2d at 203 quoting Jones, 495 Pa. at 500-01, 434 A.2d at 1202. Thus, Ferri's first contention is without merit.

The second issue raised on appeal is whether the trial court erred in admitting the testimony of Ferri's former counsel over the objection that the testimony was privileged.

This issue arises from the following facts: The day after the victim was killed, attorney Leonard Sharon notified Ferri that Heatherington had been shot the night before. The Appellant immediately took the clothes he had been wearing the night of the shooting to Sharon's office. Claudia Sharon, Leonard's wife and law partner, received the clothing and gave them to Leonard Sharon. Mr. Sharon, upon termination of his representation of Ferri, turned the clothing over to Dianne Bar Quinlin, former member of the Allegheny County Public Defender's office. Ms. Quinlin submitted the clothing for testing to Dr. Levine of the Allegheny County Crime Lab.

The prosecutor, Leo Dillon, learned of the existence and location of the clothing through reviewing a taped conversation between Ferri and one Gordon Bennett. After the murder of Heatherington, agents of the Drug Enforcement Administration had approached Bennett, who was suspected of being involved with Ferri's drug distribution network, seeking his cooperation in their investigation. At DEA's behest, Bennett consented to wear a wire.

References to the clothing were also made public in a letter from Ferri to federal district court responding to Sharon's motion to withdrawal as counsel in an unrelated federal case. Statements in the letter included, "you have a set of clothing that I gave you the day after Jocko was shot." (T.C.O. at 21).

Through discovery, the prosecution obtained both the clothing and Dr. Levine's report. Ferri concedes that the clothing itself is not privileged, and does not contest the propriety of its discovery. See Commonwealth v. Stenhach, 356 Pa.Super 5, 514 A.2d 114 (1986) (discusses defense counsel's duty to disclose incriminating physical evidence). He does, however, contest the trial court's decision permitting Sharon and Quinlin to testify. The admissibility of the scientific tests of clothing conducted in 1985 and 1987 required the Commonwealth to establish a chain of custody dating back to the day after the shooting. Commonwealth v. Alarie, 378 Pa.Super. 11, 547 A.2d 1252 (1988). Without Sharon and Quinlin's testimony, the prosecution would be unable to admit the clothing into evidence. Ferri asserts that attorney-client privilege prevents this testimony.

In Stenhach, this court dealt with the defense attorney's duty to disclose incriminating physical evidence. This court struck a balance between the right of the prosecutor to discover the evidence and the attorney-client privilege, holding that, "the prosecution is entitled to use the physical evidence as well as information pertaining to its condition, location and discovery but may not disclose to a fact-finder the source of the evidence." 356 Pa.Super at 24, 514 A.2d at 123. Ferri claims that permitting his former attorneys to testify as to their possession of the clothing improperly discloses to the finder of fact the source of the evidence, thus violating the privilege. The trial court relying on federal case law, held that any voluntary disclosure by the holder of the privilege that is inconsistent with the confidential nature of the relationship thereby waives the privilege. U.S. v. Fisher, 692 F.Supp. 488, 494 (E.D.Pa.1988). The court thus found that Ferri effectively waived any attorney client privilege with his disclosure of his delivery of clothing to third persons, and concluded that due to the waiver of the attorney-client privilege, the Stenhach rationale is not applicable to the present case.

Whether Ferri's disclosure to Bennett waived his attorney-client privilege is an issue of first impression in Pennsylvania. However, our Court's resolution of this precise issue with respect to marital privilege guides our discussion. Commonwealth v. Clark, 347 Pa.Super. 128, 500 A.2d 440 (1985). The Clark court held that the marital privilege survives subsequent disclosures because it is "the relationship that existed at the moment of the communication which society seeks to protect by the privilege, not the substance of the message itself." 347 Pa.Super. at 133, 500 A.2d at 443.

The attorney-client privilege, likewise, seeks to protect a relationship by fostering "a confidence between client and advocate that will lead to a trusting and open attorney-client dialogue." Estate of Kofsky, 487 Pa. 473, 482, 409 A.2d 1358, 1362 (1979). The result of a violation of the attorney-client privilege is "damage to the administration of justice." Id. Analogous to the marital privilege, it is the relationship between the attorney and client at the moment of the communication that society seeks to protect. Thus, the holding in Clark is equally applicable to prevent waiver of the attorney-client privilege. Ferri argues that without waiver of the privilege, the Stenhach holding effectively blocks the Commonwealth from eliciting testimony from either Sharon or Quinlin.

Contrary to Ferri's argument, the underlying rationale of Stenhach supports rather than undermines the admissibility of Sharon and Quinlin's testimony. The facts in Stenhach were limited to the attorney's duty and subsequent criminal liability for failing to disclose incriminating physical evidence. The case, while discussing questions of admissibility of the attorney's testimony, did not specifically deal with the waiver issue.

Rather, the court in Stenhach balanced the prosecution's right to use the physical evidence with the defendant's right to protect the privileged circumstances surrounding the attorney's possession. In discussing the duty to disclose, the court declined to restrict the Commonwealth's efforts to obtain seizable evidence, " 'merely because it has been placed in the hands of an attorney. To hold otherwise would mean that a criminal suspect...