Commonwealth v. Dunlap

• Decision Date: 31 March 1975
• Citation: 233 Pa.Super. 38,335 A.2d 364
• Parties: COMMONWEALTH of Pennsylvania v. Marshall DUNLAP, Appellant.
• Court: Pennsylvania Superior Court

335 A.2d 364

233 Pa.Super. 38

COMMONWEALTH of Pennsylvania v. Marshall DUNLAP, Appellant.

Superior Court of Pennsylvania.

March 31, 1975.

Alfred V. Papa, New Castle, for appellant.

Donald E. Williams, Dist. Atty., New Castle, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.

JACOBS, Judge:

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. The crimes arose out of the stabbing of a Donald L. Groves in a bar located in Lawrence County. Several issues are raised on appeal, but only two are preserved for our consideration. ^[1]

The first issue we will consider is whether appellant was deprived of a fair trial because the prosecuting attorney represented the victim of the crime in a personal injury action arising out of the same facts as the criminal prosecution against the owner of the bar where the stabbing took place. These facts were voluntarily revealed after the verdict, but before argument on the post-trial motions by the Assistant District Attorney who prosecuted the case. After this issue was argued, the lower court found that no prejudice resulted to appellant and dismissed the argument. We agree and refuse to grant a new trial on that basis.

This Court has had occasion to state that '(a) district attorney holds an office of unusual responsibility, and he must exercise his duties with complete impartiality.' Commonwealth v. Wiggins, 231 Pa.Super. 71, 76, 328 A.2d 520, 522 (1974) quoting Commonwealth v. Toth, 455 Pa. 154, ---, 314 A.2d 275, 277 (1974). The A.B.A Standards For Criminal Justice, Standards Relating To The Prosecution Function, § 1.2 (Approved Draft, 1971) have also recognized this responsibility and have added that '(a) prosecutor should avoid the appearance or reality of a conflict of interest with respect to his official duties.'

Although the present situation is not listed as an example of a comflict of interest under § 1.2 of the A.B.A. Standards, we realize that a conflict of interest may arise when a prosecutor attempts to represent both the Commonwealth and the victim of the crime in actions arising out of the same set of facts as the criminal prosecution.

However, the A.B.A. Standards in § 1.1 are careful to caution that '(t)hese standards are intended as guides for the conduct of lawyers and as the basis for disciplinary action, Not as criteria for the judicial evaluation of prosecutorial misconduct to determine the validity of a conviction.' (emphasis added). Similarly, this Court in Commonwealth v. Wiggins, supra, did not condone the conduct of the prosecutor in describing to the jury the defendant as a 'dangerous man;' nevertheless, we refused to overturn the conviction on the basis that the remark did not rise to pejudicial dimensions.

Appellant asks this Court to reverse his conviction because of the possibility of a conflict of interest regardless of the fact that no prejudice has been demonstrated therefrom. Appellant's brief speaks of possibilities of harm arising out of the present situation, but none is specifically complained of or apparent from the record. Neither party has offered any Pennsylvania authority on this specific issue and we have been unable to find any. However, the courts of other jurisdictions have considered the present issue and we find their decisions persuasive.

In the majority of the cases we have reviewed the respective courts came to the conclusion that although a conflict of interest may exist, some resulting prejudice must be demonstrated to warrant a new trial. Brooks v. State, 45 Ala.App. 196, 228 So.2d 24 (1969) (special prosecuting attorney also represented prosecuting witness in civil case); People v. Farnsley, 53 Ill.2d 537, 293 N.E.2d 600 (1973) (special prosecuting attorney also represented estate of victim); State v. Williams, 217 N.W.2d 573 (Iowa 1974) (prosecuting attorney in murder case also represented deceased victim's family); Garton v. State, 454 S.W.2d 522 (Mo.1970) (prosecuting attorney was also counsel for bank that had been robbed). In Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967), the Court granted the defendant's writ of habeas corpus for the reason that the prosecuting attorney also represented the defendant's wife, who was the victim of the crime, in a divorce action based on the same facts as the criminal prosecution. Although there was language in Ganger that the absence of harm from such a conflict of interest cannot be assumed, the facts of Ganger are readily distinguishable from those in the present case and the aforementioned authorities. In Ganger, the lower court found as a fact that the prosecuting attorney offered to drop criminal charges against the defendant if he would make a favorable property settlement in the divorce action. The appellate court found that this finding was supported by the record and established that the prosecutor did not treat the defendant with fairness because of his conflict of interest. There is no such evidence of any abuse of discretion by the prosecuting attorney in the present case.

While we feel that it was improper for the prosecuting attorney to permit the appearance of a conflict of interest, we fail to find any specific prejudice to the appellant to warrant the grant of a new trial.

Appellant's final allegation of error is that the lower court on clarification of instructions to the jury stated that the Commonwealth alleged by its evidence that appellant did the stabbing without stating to the jury that appellant by his evidence alleged that he did not do the stabbing. When defense counsel raised this objection at side-bar, the trial court immediately corrrected any false impression that may have been conveyed to the jury by instructing the jury that appellant's evidence asserted that appellant did not do the stabbing. We are satisfied that the charge taken in its entirety was without prejudicial error. Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973).

Judgment affirmed.

HOFFMAN, J., files a dissenting opinion in which SPAETH, J., joins.

HOFFMAN, Judge (dissenting):

I dissent from the Majority holding that the fact that the district attorney who prosecuted this case also represented the victim in a civil suit against the defendant arising out of the same transaction does not require a reversal of the appellant's conviction.

Section 1.2(a) of the ABA Standards For Criminal Justice, Standards Relating To The Prosecution Function (Approved Draft, 1971) provides that '(a) prosecutor should avoid the appearance or reality of a conflict of interest with respect to his official duties.' ^[1] The Majority and the court below recognize that the facts of the instant case, wherein the prosecuting attorney also represented the victim in a civil suit based on the alleged aggravated assault, potentially represent a conflict of interest. Both, however, refuse to grant a new trial because no specific prejudice has been uncovered by the appellant. As the lower court stated in its thorough opinion, '(a)bsent some proof that the Assistant District Attorney's conduct somehow deprived the defendant of a fair and impartial trial there is no reason to suppose a properly counseled defendant was adversely affected by reason of the Assistant District Attorney's dual representation.'

Initially, I agree with the Majority that the ABA standards generally are standards of conduct, not legal principles that are necessarily binding on our Court. See Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974). Our Supreme Court has, however, frequently relied on those standards as the Ratio decidendi in finding reversible error. See, e.g., Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971) and its progeny.

The Ajority requires the appellant to show that prejudice arose from the dual representation by the prosecutor. The situation is similar to dual representation of two criminal defendants by one attorney, a problem addressed in Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 48, 176 A.2d 641, 643 (1962): 'Despite its recognition of the existence of a conflict of interest under the circumstances, the Superior Court stated that it was appellant's burden to show 'that the conflict of interest resulted in such ineffective and improper representation as to result in basic and fundamental error' and, in the instant situation, appellant had not sustained this burden. With the conclusion we cannot agree.

'If, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such as conflict vitiates the proceedings, even though no...