Com. v. Vance

• Citation: 546 A.2d 632,376 Pa.Super. 493
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Russell L. VANCE, Appellee.
• Decision Date: 01 August 1988
• Court: Pennsylvania Superior Court

Page 632

546 A.2d 632

376 Pa.Super. 493

COMMONWEALTH of Pennsylvania, Appellant, v. Russell L. VANCE, Appellee.

Superior Court of Pennsylvania.

Argued April 27, 1988.

Filed Aug. 1, 1988.

George S. Leone, Philadelphia, for Com., appellee.

Thomas L. McGill, Jr., Philadelphia, for appellant.

Before CAVANAUGH, WIEAND and DEL SOLE, JJ.

CAVANAUGH, Judge:

The primary issue in this appeal is whether the revocation by the Supreme Court of defense counsel's admission to the bar of Pennsylvania, after the defendant's criminal trial had been completed, renders counsel ineffective.

The background of this case is most important. The defendant, Russell L. Vance, was arrested on February 4, 1985 and charged with murder and possession of an instrument of crime. He confessed to the crime and his statement established that he had shot Isaiah Anderson nine times with three different weapons, apparently in a dispute over rent payments. The shooting occurred in the basement of the house which defendant rented from Mr. Anderson at 2938 W. Girard Avenue, Philadelphia, Pennsylvania. After shooting the victim, the defendant wrapped his body in trash bags, having bound his arms and legs with wire. The defendant then drove the body to an isolated spot in South Philadelphia and disposed of it.

Mr. Vance was represented by Richard Potack from about April, 1985 until he was sentenced on February 5, 1986. During this time counsel actively sought to protect his client's interests, including the filing of a motion to suppress evidence on which two days of hearings were held. Defense counsel unsuccessfully sought to have bail reinstated for his client and sought psychiatric evaluations to establish that the defendant was suffering from post-traumatic stress disorder resulting from his activities in Viet Nam. The defendant was a Viet Nam veteran and claimed that he had shot and killed civilians who were trying to steal garbage.

The defendant's mental condition at the time of the offense was an essential part of the case. The court directed that the defendant be examined at the Veteran's Hospital at Coatesville by Dr. William Racek. The case was then listed for a status hearing on October 28, 1985, and on that date defense counsel informed the court that he had not yet received the report of Dr. Racek's examination of the defendant. Rule 1100 was waived until January 31, 1986, and the matter was continued for trial to the earliest date possible consistent with the court's calendar and the defense counsel's schedule.

On December 17, 1985, defense counsel filed another petition for bail. The court scheduled a hearing and bail was denied. The court then directed a psychiatric examination of the defendant by the Psychiatric Unit of the Probation Department and the case was continued to January 21, 1986. The court also ordered defense counsel to provide the Commonwealth with defendant's medical and psychiatric records. The case was then listed for jury trial on January 27, 1986.

On the date set for jury trial, defense counsel moved to re-open the suppression hearing for the limited purpose of additional testimony regarding physical evidence. The court permitted the introduction of this testimony, but denied defense counsel's motion to suppress the evidence. A Motion for Redaction of Defense Psychiatric Report was granted. The court denied a defense motion for the jury not to be death qualified. Jury selection began that day and was completed on January 31, 1986 and court was recessed until February 3, 1986.

Prior to the defendant's appearance in court on February 3, 1986, defense counsel made two motions which the court denied. He then indicated that the defendant wished to examine the physical evidence. When the defendant arrived at the courtroom, he was permitted to do so and the court then took a brief recess. When all parties returned to the courtroom, defense counsel requested another recess because the defendant had indicated that he was considering the entry of a guilty plea. When the court reconvened, defense counsel informed it that the defendant would plead guilty to murder generally and possessing an instrument of crime generally. After an extensive colloquy, the court accepted the defendant's guilty plea. The degree of guilt hearing began immediately thereafter and testimony as to the degree of guilt concluded on February 5, 1986. The defendant was adjudicated guilty of murder in the first degree and guilty of possessing an instrument of crime generally. He was immediately sentenced to a term of life imprisonment on the murder charge and a concurrent term of two and one-half to five years for possessing an instrument of crime.

On February 10, 1986, the defendant filed pro se motions to withdraw his guilty plea and for modification and reconsideration of sentence. On March 11, 1986, the court ordered the appointment of new counsel for the defendant and Thomas L. McGill, Esq., the appellant's present counsel was appointed.

On June 24, 1986 an evidentiary hearing on the defendant's allegations of ineffective assistance of counsel was held. Richard Potack, trial counsel, testified at the hearing and the appellant was represented by Mr. McGill. On September 23, 1986, the trial court was advised by the Disciplinary Board of the Supreme Court of Pennsylvania that Mr. Potack's admission to the Pennsylvania Bar had been revoked on April 16, 1986.

The issue before the lower court was whether the appellant should have been allowed to withdraw his guilty plea after sentence had been imposed. In order to permit the withdrawal of a guilty plea after sentence has been entered, there must be a showing of prejudice that results in a manifest injustice to the defendant. Commonwealth v. West, 336 Pa.Super. 180, 485 A.2d 490 (1984); Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d 1358 (1984). A defendant who attempts to withdraw a guilty plea after sentencing must carry the substantial burden of showing manifest injustice which is imposed in recognition that a plea withdrawal can be used as a sentence testing device. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). Allegations of ineffectiveness of counsel in connection with withdrawal of a guilty plea provide a basis for withdrawal only if there is a nexus between counsel's ineffectiveness and an involuntary or unknowing plea. Commonwealth v. West, supra. Commonwealth v. Owens, 321 Pa.Super. 122, 467 A.2d 1159 (1983). The court below allowed the defendant to withdraw his guilty plea on the grounds that he was denied the effective assistance of counsel. The basis for this determination was that "the defendant was represented by counsel who was not a duly licensed member of the bar and who was abusing cocaine during the course of his representation." (Slip opinion page 30).

The thrust of the opinion of the court below is not that the defendant's guilty plea was unknowing or involuntary, but goes rather to the conduct of defendant's counsel unrelated to the substantive efficacy of the proceedings before the court. The first premise of the court below, that defendant's counsel was not a duly licensed member of the bar, is not supported by the evidence. Mr. Potack had been a member of the bar of California since 1975. Because of improper conduct in the representation of clients there and also for the alleged passing of bad checks, proceedings were commenced in California to discipline Mr. Potack. Apparently, he voluntarily ceased practicing law in California. In February, 1984, he took the Pennsylvania Bar examination and passed. In May, 1984, he was admitted to the bar of the Commonwealth of Pennsylvania. On or about January 10, 1986, the Pennsylvania Board of Law Examiners petitioned the Supreme Court of Pennsylvania to revoke Mr. Potack's admission to the bar on the grounds of false statements in his application for admission to the Bar of the Commonwealth of Pennsylvania and that he was not of good character. On April 16, 1986, the Supreme Court entered an order stating "Petition to Revoke Admission to Bar granted."

Mr. Potack was a duly licensed lawyer in Pennsylvania from May, 1984 to April 16, 1986. The admission of an attorney to practice before a court is a judicial act as is the revocation of admission to the bar. In re Shigon, 462 Pa. 1, 329 A.2d 235 (1974). At the time Mr. Potack represented the defendant, he was a member of the Pennsylvania Bar.

The court below based its analysis that the defendant was denied his constitutional right under the Sixth Amendment to the United States Constitution on the conclusion that the "Supreme Court's order of April 16, 1986 revoking Potack's admission to the bar has the effect of making his membership in the Pennsylvania Bar void ab initio." If this were the case, then the result decreed by the trial court that the appellant did not have counsel would be achieved without difficulty. However, there is nothing in the law that states a grant of a petition to revoke admission to the bar is equivalent to a person never having been a member of the bar.

The court below relies on several cases which developed a rule voiding convictions of defendants who were represented by persons who had not been admitted to practice law in any jurisdiction. We are not called on to justify this rule as the defendant's counsel was admitted to practice law in Pennsylvania during the time of his representation of the defendant. The court below relied on Solina v. United States, 709 F.2d 160 (2d Cir.1983) which set forth a pro se rule that a defendant's Sixth Amendment rights are violated where his representative is not authorized to practice law in any state. ¹ Similarly, in Huckelbury v. State, District Court of Appeals of Florida, 337 So.2d 400 (1976) the court held that an indigent defendant is entitled to be represented by counsel certified by the state. In Huckelbury, supra, the defendant's representative in a first degree murder case worked...