Com. v. Padden

• Decision Date: 23 August 2001
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas Donald PADDEN, Appellant.
• Court: Pennsylvania Superior Court

783 A.2d 299

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas Donald PADDEN, Appellant.

Superior Court of Pennsylvania.

Submitted March 19, 2001.

Filed August 23, 2001.

Thomas D. Padden, appellant, pro se.

Andrew J. Jarbola, Assistant District Attorney, Scranton, for Com., appellee. Before: EAKIN, J., CERCONE, President Judge Emeritus, and KELLY, J. CERCONE, President Judge Emeritus.

¶ 1 Appellant, Thomas Padden, appeals, pro se, from the May 9, 2000 order denying, in part, his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA).¹ We affirm in part and reverse in part and remand for an evidentiary hearing.

¶ 2 The underlying facts of this case have been set forth by our Court, in its previous memorandum disposition of Appellant's direct appeal, as follows:

During the afternoon of April 8, 1995, Ms. Pamela Jones was working as a clerk in Gerrity's Super Market [hereinafter "Gerrity's] when an older male customer with brown hair took his place in line at the service counter. She asked if she could help him. Appellant placed a brown bag on the desk and said, "Put the money in the bag." Notes of Testimony, ("N.T"), 10/31/96, at 105. Appellant then lifted his shirt and revealed what looked to Ms. Jones like a silver gun in his waistband. Ms. Jones was too frightened to look directly at [A]ppellant any further but placed the cash from the register into the bag as directed. Appellant grabbed the bag and fled the store.

Ms. Jones described the perpetrator to police over the telephone shortly after [A]ppellant fled. Meanwhile, a store employee and a soft drink sales representative, both of whom had been in the parking lot, entered the store and were told what happened. They pursued [A]ppellant but lost sight of him briefly near the Price Chopper, a neighboring store in the shopping center. Both testified they subsequently saw police apprehend the man they had been chasing on the other side of an embankment behind the Price Chopper. Mr. Patrick Padden, son of the owner of a bar near the Price Chopper and not related to [A]ppellant, heard about the robbery and assisted in the search. He found a toy silver gun and part of a ripped twenty dollar bill on the ground behind the Price Chopper. The officers who apprehended [A]ppellant testified that when they stopped and searched him, they recovered a partially ripped bag full of money and one-half of a torn twenty dollar bill. The two halves of the twenty dollar bill matched. Finally Ms. Jones positively identified [A]ppellant several minutes after the robbery in a show-up.

Commonwealth v. Padden, 455 Pa.Super. 676, 687 A.2d 859 (Pa.Super.1996) (unpublished memorandum filed 10/9/96), slip memorandum at 1-2.

¶ 3 Appellant was arrested and charged with multiple offenses in connection with this incident. Attorney Alyce Hailstone Farrell, employed on a part-time basis by the Lackawanna County Public Defender's Office, was appointed to represent Appellant. Attorney Farrell represented Appellant during his jury trial before the Honorable James M. Munley which was held on November 1, 1995. The jury convicted Appellant of the offenses of robbery, simple assault and theft by unlawful taking.² He was sentenced by Judge Munley to seven (7) to fourteen (14) years incarceration for his robbery conviction, and he was given a consecutive sentence of three (3) months to two (2) years on the conviction for simple assault. The conviction for theft by unlawful taking merged for sentencing purposes.

¶ 4 Appellant, still represented by Attorney Farrell, next pursued a timely direct appeal with our Court, which subsequently affirmed his judgment of sentence. See Padden, supra. Appellant, through Attorney Farrell, then filed a petition for allowance of appeal with our Supreme Court that was denied on April 8, 1997. See Commonwealth v. Padden, 547 Pa. 753, 692 A.2d 564 (1997). On December 1, 1997, Appellant filed a pro se PCRA petition, his first, with the Trial Court in which he raised forty four (44) separate claims of alleged Trial Court error and alleged ineffective assistance of trial counsel as well as an additional averment of the ineffective assistance of appellate counsel for failing to "properly prepare and argue before the Supreme Court all of the issues raised in the Appellant's Brief in the Superior Court on Direct Appeal." See Pro Se PCRA Petition, filed 12/1/97.

¶ 5 On January 9, 1998, the Honorable John Cottone, who had been assigned this case, appointed Attorney Robert T. Gownley to represent Appellant and directed Attorney Gownley to file an amended PCRA petition on Appellant's behalf by February 10, 1998. See Trial Court Order, docketed 1/9/98, docket entry # 31. On February 10, 1998 Appellant, pro se, filed a supplemental PCRA petition raising two additional claims of trial counsel's ineffectiveness and an added claim of appellate counsel's ineffectiveness. The Trial Court issued another order, docketed that same day, which allowed Attorney Gownley until March 12, 1998 to file an amended PCRA on Appellant's behalf or to "take other appropriate action." See Trial Court Order, docketed 2/10/98.

¶ 6 However, Attorney Gownley filed nothing on behalf of Appellant until April 26, 1999 when he filed a petition with the Trial Court seeking leave to withdraw.³ The basis for this request was that Attorney Gownley had discovered a potential conflict of interest, namely the fact that he had actively represented the store, Gerrity's, that had been victimized in the robbery for which Appellant had been convicted. The PCRA Court granted Attorney Gownley's request and entered an order on April 26, 1999 allowing him to withdraw as counsel. This order also appointed Attorney John Coury to represent Appellant and ordered Attorney Coury to file an amended PCRA petition within thirty (30) days.

¶ 7 Attorney Coury complied with the Trial Court order and filed an amended PCRA petition on May 25, 1999. Because of information obtained from Attorney Gownley, Appellant specifically alleged in this amended PCRA petition that Attorney Farrell had a conflict of interest in her representation of Appellant at trial and on appeal, which had not been disclosed to him. See Amended PCRA Petition, filed 5/25/99, ¶ 7(A). Appellant averred that Attorney Farrell was also a member of the same law firm that served as legal counsel for Gerrity's at the time of the robbery and also during Appellant's trial, his sentencing and his direct appeal. Id. Appellant alleged that because of this conflict of interest his right to a fair trial had been prejudiced. Id. In this amended petition, Appellant also pared his prior lengthy list of ineffective assistance of counsel claims to eight (8) specific allegations of Attorney Farrell's supposed ineffectiveness during trial and on direct appeal.

¶ 8 The Trial Court conducted an evidentiary hearing on this matter on September 17, 1999. Only Appellant was called to testify at this hearing by Attorney Coury. Attorney Farrell was not called to testify at this hearing; rather, an affidavit executed by her was offered into evidence. See N.T. PCRA Hearing, 9/17/99, at 3. In this affidavit, Attorney Farrell acknowledged that on November 1, 1995 she was employed as an associate in the law firm of Kreder, Brooks, Hailstone and Ludwig. Attorney Farrell also set forth that this law firm represented Gerrity's Market "[o]n November 1, 1995 and for a period of time prior thereto." See Affidavit of Alyce H. Farrell, Esquire, dated 9/16/99 at ¶ 3. However, Attorney Farrell averred that she "never provided any legal service or advice to Gerrity's, either before or after November 1, 1999." Id. at ¶ 4 (emphasis supplied). She went on to state that "[o]n November 1, 1999 and for a period of time thereafter that went beyond my representation of Mr. Padden, I was not personally aware that the firm of Kreder, Brooks, Hailstone and Ludwig represented Gerrity's," Id. at ¶ 5 (emphasis supplied).

¶ 9 An affidavit from Andrew Hailstone, who is a partner in the law firm which represented Gerrity's in November of 1995, and, according to Appellant, also the father of Attorney Farrell, was also offered into evidence at the PCRA evidentiary hearing by Attorney Coury.⁴ In this affidavit, Attorney Hailstone stated that he was a partner of this law firm in November of 1995 and recounted that Attorney Farrell had been employed at that time by the firm as a part time legal associate. See Affidavit of Andrew Hailstone, Esquire, dated 9/16/99, at ¶ 4. Attorney Hailstone claimed, though, that Attorney Farrell "never provided any legal services or advice to Gerrity's, either before or after November 1, 1995." Id. at ¶ 5.

¶ 10 On May 9, 2000, the Trial Court issued an opinion and order in which it vacated the sentence imposed on the Appellant for his conviction of simple assault but denied relief on all other issues, which had been raised in Appellant's amended PCRA petition. Appellant next filed a timely pro se notice of appeal with our Court. Appellant made clear to the Trial Court, via correspondence, that, while he understood that he was entitled to the representation of counsel in this direct appeal proceeding,⁵ he nevertheless desired to proceed pro se. See Correspondence of Appellant, filed 6/9/2000. Thus, the Trial Court entered an order on June 21, 2000 terminating Attorney Coury's representation and granting Appellant's request to represent himself in this matter.

¶ 11 On appeal to our Court, Appellant raises the following issues for our consideration:

I. DID THE LOWER COURT ERR AND EXERCISE AN ABUSE OF DISCRETION IN FAILING TO FIND THAT A CONFLICT OF INTEREST EXISTED BETWEEN TRIAL COUNSEL AND THE APPELLANT WHERE THE TRIAL COUNSEL FOR THE APPELLANT WAS EMPLOYED BY THE SAME LAW FIRM WHICH ALSO REPRESENTS THE LEGAL INTERESTS OF THE VICTIM IN THIS PROSECUTION?

II. DID THE LOWER COURT ERR OR EXERCISE AN ABUSE OF DISCRETION IN FAILING TO FIND THAT THE TRIAL COUNSEL FOR THE...