Com. v. Lutes

• Decision Date: 27 February 2002
• Citation: 793 A.2d 949
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Brian K. LUTES, Appellant. Commonwealth of Pennsylvania, Appellee v. George Hagerty, Appellant.
• Court: Pennsylvania Superior Court

793 A.2d 949

COMMONWEALTH of Pennsylvania, Appellee v. Brian K. LUTES, Appellant.

Commonwealth of Pennsylvania, Appellee v. George Hagerty, Appellant.

Superior Court of Pennsylvania.

Submitted October 1, 2001.

Filed February 27, 2002.

Russell B. Korner, Masontown, for appellants.

Nancy Ann Duffield, Asst. Dist. Atty., Uniontown, for Com., appellee.

Before: HUDOCK, JOYCE, and LALLY-GREEN, JJ.

LALLY-GREEN, J.

¶ 1 Appellants, Brian K. Lutes and George Hagerty, appeal the judgments of sentence entered against them on February 23, 2001. We affirm.

¶ 2 The facts as found by the trial court are as follows:

On April 13, 2000, Defendants, George Hagerty (hereinafter Hagerty) and Brian K. Lutes (hereinafter Lutes) allegedly confronted Fayette County Commissioner Sean M. Cavanaugh (hereinafter Cavanaugh), as he was entering in [sic] the Fayette County Courthouse from a commissioner's meeting at the Fayette County Public Service Building. Hagerty and Lutes allegedly physically and verbally berated Cavanaugh in a threatening manner.

On June 16, 2000, Hagerty and Lutes were found guilty by District Magistrate Lawrence Blair of disorderly conduct and harassment. Hagerty and Lutes subsequently appealed the summary convictions for a trial de novo to this Court.

In an opinion dated October 4, 2000, this Court denied Hagerty and Lutes' Omnibus Pretrial Motions to transfer prosecution to the Office of Attorney General and for rucusal [sic] of all members of this Court.

On February 22, 2001, a trial de novo on the aforementioned charges against Hagerty and Lutes was held before this Court. This Court found Hagerty and Lutes guilty of harassment and disorderly conduct and sentenced Hagerty to pay a $150 fine for each offense and Lutes to pay a $300 fine for each offense.

On March 16, 2001, Hagerty and Lutes filed a Notice of Appeal to the Superior Court of Pennsylvania.

Trial Court Opinion, 4/20/01, at 1-2.

¶ 3 Appellants raise nine issues in their Statement of Questions Presented.

I. Whether the Pre-trial/Trial Court committed error when it refused to grant appellants' "Motion to Transfer Prosecution by the Fayette County Office of District Attorney to the Commonwealth of Pennsylvania Office of Attorney General?"

II. Whether the Pre-trial/Trial Court committed error when it refused to grant appellants' "Motion for Recusal of All Members of the Fayette County Court of Common Pleas?"

III. Whether the Trial Court erred by refusing to grant appellants' "Motion to Dismiss Citations" (and ultimately the cases) herein because the Commonwealth failed to do an "on scene" investigation?

IV. Whether the Trial Court erred and ultimately prejudiced appellants' right to a fair trial by not ordering the Commonwealth to formally answer appellants' "Request for Pre-trial Discovery and Inspection?"

V. Whether the Trial Court erred when it severely limited appellants' request to fully cross-examine the credibility of the following witnesses in the following areas?

(A) Appellants were not permitted to cross-examine Commonwealth witness Paul Wozniak regarding termination of his employment with the Sheriff's office of Fayette County.

(B) Appellants were not permitted to cross-examine Commonwealth witness Vince Vicites regarding statements made by him as to his feelings regarding the Appellants.

(C) Appellants were not permitted to call a female witness who would have testified that she was called a similar name by Commonwealth witness Sean Cavanagh that Cavanagh maintains the Appellants called him; said testimony would have fallen under the ambit of "notorious facts."

(D) Appellants were not permitted to cross-examine Commonwealth witness Sean Cavanagh regarding whether he has called Commissioner Vicites or others similar names to those allegedly called him by the Appellants; said testimony would also have fallen under the ambit of "notorious facts."

(E) Appellants were not permitted to fully cross-examine Commonwealth witness Martin Griglak as to the reason(s) he no longer serves on the Highlands Hospital Board.

VI. Whether the evidence was insufficient to sustain the verdicts as the Commonwealth failed to prove beyond a reasonable doubt that the Appellants were guilty of harassment?

VII. Whether the evidence was insufficient to sustain the verdicts as the Commonwealth failed to prove beyond a reasonable doubt that the Appellants were guilty of disorderly conduct?

VIII. Whether the Trial Court erred when, at the close of the Commonwealth's case, and at the close of trial, it refused to grant appellants' request for dismissal of the disorderly conduct and harassment charges as being de minimis in nature?

IX. Whether the Trial Court abused it[s] discretion when it sentenced the appellants? Appellants' Brief at 6-7.¹

¶ 4 We turn to Appellants' first issue. Appellants assert that the trial court abused its discretion by refusing to transfer this case to the Attorney General's Office (AG's Office) for prosecution due to an alleged conflict of interest with the Fayette County District Attorney's Office (DA's Office) because the victim in this case was a county commissioner. Appellants allege that because county commissioners control the budget of the DA's Office, a conflict of interest existed which required the substitution of the AG's Office for the DA's Office.

¶ 5 When reviewing a trial court's refusal to transfer the prosecution of a case to the AG's Office, we will accept the trial court's finding that there was no conflict of interest absent an abuse of discretion. Commonwealth v. Stafford, 749 A.2d 489, 494 (Pa.Super.2000).

¶ 6 The Commonwealth Attorney Act, which governs the powers and duties of the AG's Office, states that:

(a) Prosecutions.—The Attorney General shall have the power to prosecute in any county criminal court the following cases:

(3) 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 the potential for an actual or apparent conflict of interest on the part of the district attorney or his office.

...

(5) When the president judge in the district having jurisdiction of any criminal proceeding has reason to believe that the case is a proper one for the intervention of the Commonwealth, he shall request the Attorney General to represent the Commonwealth in the proceeding and to investigate charges and prosecute the defendant. If the Attorney General agrees that the case is a proper one for intervention, he shall file a petition with the court and proceed as provided in paragraph (4). If the Attorney General determines that the case is not a proper case for intervention, he shall notify the president judge accordingly.

71 P.S. § 732-205(a)(3) and (5).

¶ 7 The budget of the DA's Office is controlled by 16 P.S. § 1401(g). Under this section, the county commissioners may determine if the county requires the services of a full-time district attorney. Once that determination is made, the section fixes the salary of the district attorney based on the class of the county and the salary of the common pleas court judge of the county. Under 16 P.S. § 1420(a), the district attorney may appoint assistants to help carry out the duties of the office of the district attorney. Also, under this section, the salary of such assistants is fixed by the salary board. 16 P.S. § 1420(a). The salary board is made up of the county commissioners and the county controller or, if there is no controller, the county treasurer. 16 P.S. § 1622.

¶ 8 When the district attorney has a direct financial interest in the outcome of a prosecution, a conflict of interest exists which requires the substitution of the AG's Office and which is not cured by the assignment of the case to an assistant district attorney. Commonwealth v. Eskridge, 529 Pa. 387, 604 A.2d 700 (1992) (where the district attorney's private law firm could receive a direct financial gain from the defendant's prosecution, the conflict created was not cured by assigning the case to an assistant district attorney as he was still under the direction and control of the conflicted district attorney).

¶ 9 A prosecutor can be disqualified for having a non-economic, personal interest in the outcome of the prosecution. Commonwealth v. Balenger, 704 A.2d 1385 (Pa.Super.1997) (PCRA court properly ordered a new trial because the assistant district attorney carried on a romantic relationship with the petitioner's girlfriend at the time of the trial and sought a conviction against the petitioner to remove the petitioner as a competitor for the woman's affections). This non-economic, personal interest is likewise a conflict of interest.

¶ 10 A prosecutor's duties and loyalties lie with the Commonwealth and not with the victim of a criminal offense. Commonwealth v. Price, 454 Pa.Super. 88, 684 A.2d 640, 642 (1996) (where victim in one criminal case was arrested and charged as a defendant in another, unrelated criminal case, DA's office was not disqualified on the basis of a conflict of interest because the victim was just a witness in the first case and the "prosecutor's `client' is the Commonwealth and the people who live in the Commonwealth").

¶ 11 Our review of the record reflects that the trial court did not err in concluding that the DA's Office did not have a conflict of interest that required a transfer to the AG's Office. Unlike in Eskridge, the prosecutor here has no direct financial interest in the outcome of the case, especially since the legislature establishes the salary of the district attorney. Also, Appellants fail to demonstrate how the DA's Office's prosecution of Appellants for their criminal behavior towards the victim is causally related to the budget of the DA's Office. The victim, a county commissioner, is one of many who vote on the budget for the DA's Office. Additionally, unlike in Balenger, neither the prosecutor individually...