Com. v. Marshall, D.

2020 Pa. Super. 52

• Court: Superior Court of Pennsylvania
• Decided: March 6, 2020
• Docket: 3137 EDA 2018
• Status: Published

Opinion

J-A21029-19

2020 PA Super 52

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DWIGHT MARSHALL : : : No. 3137 EDA 2018 APPEAL OF: DEFENDER : ASSOCIATION OF PHILADELPHIA :

Appeal from the PCRA Order Entered September 27, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0208571-1997

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSEPH OLIVER : : : No. 3138 EDA 2018 APPEAL OF: DEFENDER ASSOCIATION OF PHILADELPHIA

Appeal from the PCRA Order Entered September 27, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP- 51-CR-0608641-1985

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RONNIE BRADLEY : : : No. 3150 EDA 2018 APPEAL OF: DEFENDER ASSOCIATION OF PHILADELPHIA J-A21029-19

Appeal from the PCRA Order Entered September 27, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006748-2010

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAFAEL SANTIAGO : : : No. 3198 EDA 2018 APPEAL OF: DEFENDER : ASSOCIATION OF PHILADELPHIA :

Appeal from the PCRA Order Entered September 27, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0711621-1998

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HECTOR TRINIDAD : : : No. 3650 EDA 2018 APPEAL OF: DEFENDER : ASSOCIATION OF PHILADELPHIA :

Appeal from the PCRA Order Entered September 27, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1204811-1999

BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

OPINION BY OLSON, J.: FILED MARCH 06, 2020

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In this consolidated appeal, Appellant, Defender Association of

Philadelphia, appeals from the orders entered September 27, 2018, denying

Appellant’s motions to withdraw as counsel for petitioners in collateral relief

proceedings. We reverse the orders and remand the cases for appointment

of counsel consistent with this opinion.

The record reveals that on June 25, 2018, the court appointed Appellant

to represent each of the five above-captioned petitioners in their non-capital

homicide petitions filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. Appellant filed motions to withdraw as counsel

at each of the five PCRA court dockets, asserting Appellant “does not currently

employ sufficient staff with the requisite skills necessary to effectively

represent homicide PCRA clients; and [Appellant] does not possess the

resources necessary for effective representation.” PCRA Court Opinion,

9/27/18, at 2. On September 27, 2018, the PCRA court denied Appellant’s

motions to withdraw. Appellant filed motions for reconsideration that the

PCRA court subsequently denied.

Appellant filed a timely notice of appeal at each of the five dockets.1, 2

This Court directed Appellant to show cause why these appeals should not be

quashed as interlocutory as the orders failed to satisfy the requirements of ____________________________________________

1 Appellant filed concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court subsequently filed its Rule 1925(a) opinions.

2In a per curiam order, this Court consolidated Appellant’s five appeals. Per curiam Order, 2/14/19.

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the collateral order doctrine. Per Curiam Order, 1/25/19 (citations omitted).

Appellant filed responses and this Court subsequently discharged the orders

to show cause, referring the issue to the merits panel. Per Curiam Order,

2/5/19.

Appellant raises the following issues for our review:

A. Does this Court have jurisdiction over the instant appeal under the collateral order doctrine?

B. Does a [PCRA] court abuse its discretion in denying a non- profit law firm's motion to withdraw from a sua sponte appointment when (1) the moving counsel provides unrebutted averments and evidence that it lacks the ability, staff and resources to handle non-capital homicide [PCRA petitions] as the appointments will unreasonably burden its staff, budget, and current clients; (2) the appointments are unfunded and in conflict with a settled contractual agreement; and (3) neither the [petitioners] nor the Commonwealth would be prejudiced by the withdrawal?

Appellant’s Brief at 3.

Appellant contends the PCRA court’s orders denying its motions to

withdraw are collateral orders pursuant to Pennsylvania Rule of Appellate

Procedure 313, and therefore, are immediately appealable. Id. at 28-37.

“Whether an order is appealable under Pa.R.A.P. 313 is a question of

law. As such, our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Magee, 177 A.3d 315, 319 (Pa. Super. 2017),

quoting Rae v. Pennsylvania Funeral Dirs. Ass’n, 977 A.2d 1121 (Pa.

2009). Our Supreme Court held,

Pennsylvania Rule of Appellate Procedure 313(b) permits a party to take an immediate appeal as of right from an otherwise

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unappealable interlocutory order if the order meets three requirements: (1) the order must be separable from, and collateral to, the main cause of action; (2) the right involved must be too important to be denied review; and (3) the question presented must be such that if review is postponed until after final judgment, the claim will be irreparably lost. All three prongs of Rule 313(b) must be met before an order may be subject to a collateral appeal; otherwise, the appellate court lacks jurisdiction over the appeal.

Commonwealth v. Harris, 32 A.3d 243, 248 (Pa. 2011); see also Pa.R.A.P.

313(b) (defining a collateral order as “an order separable from and collateral

to the main cause of action where the right involved is too important to be

denied review and the question presented is such that if review is postponed

until final judgment in the case, the claim will be irreparably lost”).

With regard to the first prong of the collateral order doctrine, an order is separable from the main cause of action if it is entirely distinct from the underlying issue in the case and if it can be resolved without an analysis of the merits of the underlying dispute. With regard to the second prong, a right is important if the interests that would go unprotected without immediate appeal are significant relative to the efficiency interests served by the final order rule. Notably, the rights must be deeply rooted in public policy going beyond the particular litigation at hand. With regard to the third prong, a right sought to be asserted on appeal will be “irreparably lost” if, as a practical matter, forcing the putative appellant to wait until final judgment before obtaining appellate review will deprive the appellant of a meaningful remedy.

Magee, 177 A.3d at 319-320 (citations, ellipsis, and some quotation marks

omitted).

Here, the orders denying Appellant’s motions to withdraw present an

issue separate from and collateral to the issues raised by the petitioners in

their PCRA petitions and can be resolved without an analysis of the merits of

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the individual PCRA petitions. As to the second prong, the orders involve

important rights deeply rooted in public policy that go beyond the particular

circumstances of this appeal. For the petitioners, the orders involve the right

to competent counsel with the skills, resources, and time to “ensure

constitutionally adequate representation.” Kuren v. Luzerne County, 146

A.3d 715, 744 (Pa. 2016). For Appellant, the orders involve the rights to earn

a livelihood and to be compensated for the representation. Magee, 177 A.3d

at 321. These rights are far more significant than the interest of efficiency.

Finally, the question of whether Appellant should be permitted to withdraw

from representation where Appellant has neither the skill, resources, nor time

to provide the petitioners with constitutionally adequate representation will be

“irreparably lost” if not addressed until after final judgment.

Therefore, we find that the orders meet all three prongs of the collateral

order doctrine and are immediately appealable. Consequently, this Court has

jurisdiction over this appeal.

We turn now to the merits of this appeal and “review a [PCRA] court's

denial of counsel's [motion] to withdraw under the abuse of discretion

standard.” Magee, 177 A.3d at 322 (citations omitted). In determining

whether the PCRA court abused its discretion, this Court must apply a

balancing test weighing the indigent party’s interest in a fair adjudication and

the Commonwealth’s interest in the efficient administration of justice with the

interests of counsel seeking to withdraw; including examining whether counsel

has the necessary time, resources, and skill, and whether permitting

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withdrawal will prejudice the indigent party. Id. at 323. Our Supreme Court

held an indigent party is effectively denied the right to counsel when appointed

counsel is “so handicapped in the time and resources” that he or she “is

systematically incapable of providing constitutionally adequate

representation.” Kuren, 146 A.3d at 736.

Here, Appellant argues that denial of its motions to withdraw as counsel

for the five petitioners forces Appellant, who lacks the available skilled staff

and resources, to represent indigent parties without ensuring just

compensation. Appellant’s Brief at 37. Appellant contends the appointed

representation “undermines [the] settled contract” Appellant has with the City

of Philadelphia to represent indigent parties.3 Id. at 38.

At a hearing on the motions to withdraw, Appellant stated, “to take on

a new type of representation for which we are not currently prepared, nor do

we have the skills or resources to do, would be beyond reasonable at this

time.” N.T., 9/24/18, at 9. Appellant explained that it had only two attorneys

with “significant PCRA experience,” but both attorneys currently had full

schedules and were assigned to handle other complex matters. Id. at 4.

“Beyond that, [Appellant] has no attorneys who have significant or any PCRA

experience and the skills needed to handle [PCRA petitions] effectively,” and ____________________________________________

3We note that Appellant is a non-profit corporation first formed in 1934 that contracted with the City of Philadelphia beginning in 1969 to “provide counsel and necessary investigative and other services to [indigent parties] in various areas of representation” for which the City of Philadelphia compensates Appellant under the terms of the contract. In re Articles of Incorporation of Defender Ass’n of Philadelphia, 307 A.2d 906, 909 (Pa. 1973).

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“the amount of time that it would take any attorney assigned to those matters

who does not have the background or skills currently to handle those issues

would be extraordinary.” Id. at 5, 7.

In denying Appellant’s motions to withdraw, the PCRA court remarked,

[Appellant] asserts that it does not have the resources to sustain itself in handling these matters, without evidence. This [PCRA] court is not satisfied that [Appellant] has pursued any avenue to secure funding to handle these non-capital homicide PCRA matters involving individuals who are incarcerated and seeking their freedom. [Appellant] has failed to effectively prove its claim that it lacks funds and/or competent staff to handle this representation, as [Appellant] currently has many skilled attorneys handling misdemeanor, felony, homicide and PCRA cases and appeals, and has done so for decades, in the [First Judicial District].

PCRA Court Opinion, 9/27/18, at 5. The PCRA court further explained,

[Appellant] has refused to appreciate its mandated responsibility, refused or failed to adequately represent indigent citizens[,] and to adequately manage employed personnel. These failures are self-inflicted resulting in abandonment of indigent homicide PCRA [p]etitioners. If there is no conflict of interest with other [parties], [Appellant] is contractually obligated to handle the case. If there are financial issues, [Appellant] must take it up with the City of Philadelphia.

PCRA Court Opinion, 12/18/18, at 3 (emphasis added).

The First Judicial District, which encompasses the City of Philadelphia,

is unique in that it is exempt from the Public Defender Act, which requires

each county in the Commonwealth to appoint a public defender. 16 P.S.

§ 9960.3. Alternatively, the City of Philadelphia has historically entered into

a contract with Appellant to provide certain services to indigent parties in place

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of the public defender’s office. Motion to Reconsider, 10/9/18, at

Exhibit A - “Provider Agreement.” Under this contract, Appellant is to provide

representation of indigent parties, inter alia, who have violated the Crimes

Code, including representation for “misdemeanor offenses where the

possibility of incarceration exists, felony matters, parole/reparole hearings,

bench warrant hearings and violations of probation/parole hearings.” Id.

Conspicuously absent from this list of areas for which Appellant is contractually

obligated to provide legal services is representation of indigent parties in PCRA

matters. Furthermore, the contract provides for a specific fee structure and

allows Appellant to not represent parties where representation “would

constitute a conflict of interest or where [Appellant] determines for other

good and sufficient professional reasons not to provide representation.”

Id. (emphasis added).

Instantly, the denial of Appellant’s motions to withdraw as counsel is

contrary to our Supreme Court’s mandate that an advocate for an indigent

party must have the time, resources and skill to adequately represent the

indigent party so as to guarantee the indigent party’s constitutional right to

counsel. Kuren, 146 A.3d at 736. Moreover, the finding that Appellant was

“contractually obligated to handle” the PCRA petitions and that any payment

for services could be “taken up with the City of Philadelphia” is contrary to the

terms of Appellant’s contract with the City of Philadelphia to provide

representation to indigent parties and is unsupported by the record.

Appellant’s contract specifically omits reference to providing legal services in

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collateral relief proceedings, the pay structure in the contract sets forth how

much and for what work Appellant will be compensated, and Appellant has the

contractual right to decline representation of persons for “good and sufficient

professional reasons.” The record does not support that Appellant is entitled

to additional compensation from the City of Philadelphia for legal services it

provides outside the scope of its contract, that there has been a “decrease in

criminal case inventory” which has resulted in “a lighter caseload for

Appellant,” or that Appellant “possesses the staff, expertise, location,

appellate skills, brief banks, personnel and experience to handle [collateral

relief] matters.” PCRA Court Opinion, 9/27/18, at 3, 6-7. Likewise, there is

no record support for the conclusion that because Appellant choose to

represent parties in “approximately 1,300 ‘Do Not Call’ police PCRA petitions,”

Appellant is obligated by its contract with the City of Philadelphia to represent

indigent parties in other PCRA matters. Id. at 7, n.6. As Appellant explained,

these “Do Not Call” PCRA petitions are “single issue template filings based

upon documented police corruption attacking systematic and comprehensive

injustices against Philadelphia citizens” that require minimal case review and

time to prepare for filing and are usually resolved by agreement with the

District Attorney’s Office. Appellant’s Brief at 17-20.

These five indigent petitioners have suffered no prejudice in their PCRA

petitions, other than the delay brought on by this appeal, because the PCRA

court has not begun to consider the merits of those petitions. The

Commonwealth took no position on Appellant’s motion to withdraw.

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Commonwealth’s Brief at 3. In balancing the interests of the indigent

petitioners, the interests of the Commonwealth, and the interests of Appellant,

including its economic and professional interests in having sufficient time,

resources, and skill to represent the indigent petitioners in their PCRA

petitions, we find an abuse of discretion in the denial of the motions to

withdraw. Consequently, we reverse the PCRA court’s orders denying the

motions to withdraw and remand for appointment of new counsel for each

petitioner consistent with this opinion.

PCRA Orders reversed. Cases remanded for appointment of counsel

consistent with this opinion. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/6/20

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