Commonwealth v. Breighner

684 A.2d 143, 453 Pa. Super. 477, 1996 Pa. Super. LEXIS 3407

• Court: Superior Court of Pennsylvania
• Decided: October 7, 1996
• Docket: 86
• Status: Published

Opinions

BECK, Judge.

We decide, inter alia, whether a district attorney who cannot prosecute a matter due to a conflict can authorize a prosecutor from another county to act or whether the conflicted district attorney must refer the matter to the Attorney General. We hold that the conflicted district attorney must refer the matter to the Attorney General.

In March of 1992 appellant Ruth Lynn Breighner was driving a car that collided with another vehicle. The collision, which occurred in Adams County, caused the death of the driver of the other car and seriously injured the passenger. As a result, Breighner was convicted of homicide by vehicle while under the influence,¹ involuntary manslaughter² and related charges.³ She was sentenced to an aggregate term of three to seven years in prison and now appeals her judgments of sentence. We reverse and remand for a new trial.

Breighner’s first claim of error regards a conflict of interest on the part of the prosecutor in the case. She also asserts that the evidence was insufficient as a matter of law to sustain her convictions. We address her sufficiency claim first since a finding in her favor on that issue would result in a dismissal of the charges.

Our standard is well-established. We assess the evidence in the light most favorable to the Commonwealth as verdict winner to determine whether all of the elements of the crimes were established beyond a reasonable doubt. Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161, 1163 (1994).

The evidence presented by the Commonwealth included the testimony of the passenger who survived the collision. He was the boyfriend of the deceased. He stated that Breighner’s car approached them, crossed into their lane of traffic and collided with their car. Also testifying for the Commonwealth were two persons who observed Breighner at local taverns on the night of the accident. One witness described seeing Breighner in an intoxicated state several hours before the accident. The other witness testified to seeing Breighner less than one hour before the accident. That witness observed Breighner consume four shots of liquor in a fifty minute period.

The law enforcement officer who arrived at the scene of the accident testified that Breighner was highly intoxicated. She smelled of alcohol, had slurred speech and staggered as she walked. Other law enforcement and rescue personnel described Breighner as loud and using obscenities. An accident reconstruction expert opined that Breighner’s vehicle crossed the center lane and struck the victims’ car. In addition to the officers, the surviving victim, the expert and the people who saw Breighner drinking heavily just prior to the accident, the Commonwealth offered the testimony of the manager of the clinical laboratory at Gettysburg Hospital. He testified that he drew Breighner’s blood approximately one hour after the accident and it had an alcohol content of .264%, more than two times the legal limit.

The evidence presented clearly was sufficient, if not overwhelming, to sustain Breighner’s convictions. Witness observation of Breighner consuming significant amounts of alcohol just prior to the accident, the surviving passenger’s testimony regarding Breighner’s erratic driving at the time of the accident, Breighner’s condition at the scene of the crime and her dangerously high blood alcohol level shortly after the accident combine to establish the elements of DUI. Further, the fact that one victim was killed and another was injured when Breighner’s car crossed the center lane of traffic and caused the collision supports the convictions for reckless endangerment, involuntary manslaughter, homicide by vehicle and homicide by vehicle DUI. We reject Breighner’s sufficiency claims.

Breighner’s second issue involves an inquiry completely separate from the tragic circumstances of her crimes. Some time after Breighner’s arrest, a civil action was filed against her on behalf of the deceased. The plaintiff in that action retained the services of the law firm of Swope, Heiser and McQuaide. The district attorney of Adams County is a member of that firm.

After the civil action was filed, the Adams County District Attorney, Roy Keefer, disqualified himself from the prosecution because he was a member of the firm bringing the civil action and, therefore, had a conflict in proceeding in the case. Mr. Keefer (the “conflicted district attorney”) appointed then Cumberland County District Attorney, now Pennsylvania Superior Court Judge, J. Michael Eakin (the “designated prosecutor”), to handle the case. Breighner’s counsel filed pretrial motions to disqualify the designated prosecutor based on a conflict of interest. These motions were denied by the court.

Breighner now brings the issue before this court, asserting that she was deprived of a fair trial because the conflict of the original district attorney was transferred to the designated prosecutor whom the conflicted district attorney chose. Breighner requests a new trial.

In her motions to disqualify, Breighner asserted that Mr. Keefer’s act of choosing who should prosecute this case did not cure the conflict that existed on the part of the Adams County District Attorney’s Office. Breighner requested that Mr. Keefer refer the case to the Attorney General’s Office under the authority of the Commonwealth Attorneys Act (the “Act”). That statute provides, in pertinent part:

Prosecutions.-The Attorney General shall have the power to prosecute in any county criminal court the following cases: ‡ ‡ ‡

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

71 P.S. § 732-205(a)(3).

Breighner concedes that the Act is not mandatory; however, she argues that referral to the Attorney General is the only way- to cure the taint of the conflict. Essentially she claims that once the conflict arises, the conflicted district attorney can no longer make any decisions regarding the case, including whom he deems the proper person to handle the case. In response, the Commonwealth argues that Mr. Keefer’s appointment of a neighboring county’s district attorney to try the case, coupled with that attorney’s independent prosecution of the matter, negates the conflict that once existed.

In Commonwealth v. Eskridge, 529 Pa. 387, 604 A.2d 700 (1992), our supreme court considered whether it was appropriate for a district attorney to delegate to an assistant the prosecution of an individual who was a defendant in a civil case in which the district attorney represented the plaintiff. The underlying facts were similar to this case. Eskridge was charged with homicide by vehicle and related charges in connection with a car accident and the death of one of his passengers. A civil lawsuit also was brought against Eskridge. Because the district attorney of Beaver County was a member of the firm representing the plaintiff, he assigned the matter to an assistant. Prior to trial, Eskridge raised the conflict issue. The district attorney initially offered to refer the matter to the Attorney General; however, the prosecutor handling the case alluded to a potential Rule 1100 problem should such a referral occur. Not willing to waive his right to a speedy trial, Eskridge agreed to be tried by the designated prosecutor.

The Eskridge court made a number of observations in deciding the issue before it. First, it noted that the district attorney had a direct financial interest in obtaining a conviction in appellant’s case since the conviction would establish the tort alleged in the civil case. Second, the court stated that the Commonwealth improperly presented Eskridge with a “Hob-son’s choice,” that is, the choice between a speedy trial or an impartial prosecutor. Third, the court reasoned that any prejudice suffered by Eskridge as a result of the conflict would not normally be susceptible to proof.

Eskridge holds that where a conflict of interest affecting the district attorney exists, prosecution by that district attorney or any other attorney in his office is barred regardless of whether actual prejudice can be established. Breighner asks that we extend Eskridge and hold that where the district attorney goes outside his office and appoints the prosecutor of his choice, the conflict remains.

The Eskridge court observed that the conflicted district attorney in that case maintained supervision and control of the assigned prosecutor. The Commonwealth insists that here the designated prosecutor was not under the guidance, control or supervision of the conflicted district attorney, therefore, the conflict was cured. Addressing that standard, Breighner draws our attention to the following examples of control and supervision in this case:

1) subpoenas, trial notices and letters in the case were signed by the conflicted district attorney;

2) help with scheduling and procedure was given to the designated prosecutor by the conflicted district attorney’s office;

3) the designated prosecutor discussed bail issues with the conflicted district attorney;

4) the accident reconstruction expert for the Commonwealth was a witness procured by the conflicted district attorney’s law partner; and

5) the designated prosecutor had a meeting with the conflicted district attorney’s private law partner one week prior to trial and learned of a witness who later testified that she observed appellant drinking several shots of liquor just prior to the accident; that witness was revealed to appellant at time of trial.

The Commonwealth does not dispute that most of these events occurred. Instead, it argues that the designated prosecutor acted appropriately. For instance, the Commonwealth explains, the fact that Adams County subpoenas and letterhead were used in this case was not only logical, it was required because jurisdiction of the matter was in Adams County. Further, the record reflects that when addressing the issue of bail, the designated prosecutor merely stated he “had discussions with members of Adams County.” The Commonwealth argues that this statement does not necessarily mean that the designated prosecutor spoke with the conflicted district attorney.⁴ With respect to the meeting between the conflicted district attorney’s law partner and the designated prosecutor one week before trial, the Commonwealth responds by asserting that the designated prosecutor was simply investigating the case and should not be precluded from using a witness merely because she was brought to his attention by a civil attorney.

One of the questions Eskridge raises is whether a conflict is legally significant only when it can be shown that the designated district attorney was under the supervision, guidance and control of the conflicted district attorney. We conclude that Eskridge does not stand for that proposition. Although Eskridge included an analysis of supervision, guidance and control, the case does not require a separate consideration of those factors. The Eskridge court merely used the analysis to support its conclusion that an assistant district attorney will of necessity be under control of his superior, the district attorney.

However, even if such a showing was mandatory, that burden has been met in this case. The first step the conflicted district attorney took here was officially to appoint the designated prosecutor as an assistant district attorney of Adams County in order to confer jurisdiction upon him. See 16 P.S. § 1420. The designated prosecutor had to be made an assistant of the conflicted district attorney in order to handle the case.⁵ He technically became a member of the Adams County District Attorney’s Office, thereby bringing this case within the ambit of Eskridge. The record shows that although the designated prosecutor may not have sought guidance or supervision from the conflicted district attorney, the very posture of the case required him to have contact with the conflicted district attorney and his staff. Indeed, the circumstances of this case illustrate that even where a conflicted district attorney attempts to cure a conflict by temporarily naming another district attorney as his assistant, some amount of supervision, guidance and control on the part of the conflicted district attorney is unavoidable.

We hold that once a conflict arises, it is improper for the conflicted district attorney to engage in any decision-making in the case, including choosing who will handle the prosecution.⁶

Sound public policy would require that a part-time district attorney give priority to his public duties and view them as taking precedence over his private practice. In his concurring opinion in Eskridge, Justice Cappy decried the fact that the economic concerns of the conflicted district attorney were more important than his elective duties. Characterizing the conflicted district attorney’s withdrawal from the criminal case as both inappropriate and costly in terms of public dollars, Justice Cappy stated:

I am of the opinion that once elected to office, a public servant’s obligation is to the public interest, which must take precedence over any private interest that may be at stake.

Eskridge, supra at 391, 604 A.2d at 702. Justice Cappy opined that the conflicted district attorney’s firm should have withdrawn from the civil litigation. We find Justice Cappy’s observations particularly fitting in this case, where the civil action was filed some eight months after the Adams County District Attorney’s Office began prosecuting the criminal matter.

While it is clear that under these circumstances the conflicted district attorney is permitted to make a choice between a civil action and a criminal case, it is likewise obvious that the conflicted district attorney stood to benefit significantly from a criminal conviction. A conviction against appellant would establish the tort in question. See Garcia v. Bang, 375 Pa.Super. 356, 544 A.2d 509 (1988) (violation of a statute is negligence per se), appeal denied, 520 Pa. 617, 554 A.2d 509 (1989). Success in the criminal suit would be of great benefit in the civil suit. As a partner in the law firm representing the plaintiff, the conflicted district attorney stood to benefit economically from a conviction in the criminal case. See Eskridge, supra (conflicted district attorney had direct financial interest in obtaining a conviction in appellant’s case). The rules which allow elected officials to hold public office while simultaneously engaging in related private legal practice cannot operate at the expense of the criminal defendant who is entitled to a fair trial. Public confidence in our system of justice demands the result we reach today.

We are careful to point out that our holding does not include a finding that actual prejudice inured to Breighner. We agree with the trial court that the record does not support such a conclusion. However, our supreme court explicitly held that “a defendant need not prove actual prejudice in order to require that the conflict be removed.” Eskridge, supra at 391, 604 A.2d at 702. In light of Eskridge, we are precluded from holding that an appellant must establish prejudice as a prerequisite to relief.

We hold that where a district attorney has a conflict in a case, he or she cannot designate another county’s district attorney as a temporary assistant in an effort to cure the conflict. In such cases, all decision-making duties of the conflicted district attorney must cease and the matter must be referred to the Attorney General.

Judgment of sentence vacated, matter remanded so that it may be referred to the Attorney General for retrial.

JOHNSON, J., concurs and dissents, which McEWEN, P.J., concurs. TAMILIA, J., dissents, which JOHNSON, J., joins.

1 . 75 Pa.C.S.A. § 3735.

2 . 18 Pa.C.S.A. § 2504.

3 . Driving Under the Influence of Alcohol, 75 Pa.C.S.A. § 3731; Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705.

4 . The Commonwealth also states that even if the prosecutor conferred with the conflicted district attorney about bail, it would only show that he was trying to ascertain the customary amount of bail in Adams County for appellant’s particular crimes.

5 . Conversely, the Attorney General already had jurisdiction to prosecute the case pursuant to 71 Pa.C.S.A. § 732-205(a)(3).

6 . The Commonwealth argues that referral to the Attorney General is not always the preferred option because of the manner in which the Attorney General may proceed. We reject this argument. The fact that a conflicted district attorney chooses not to refer a matter to the Attorney General because he or she opposes, for whatever reason, the manner in which the Attorney General may handle the case, presents the very danger we seek to avoid here. Consideration of the conflicted district attorney’s discretionary preferences is no longer appropriate once a conflict arises.

The Commonwealth also argues that referring conflict cases to the Attorney General would be burdensome to that office in terms of manpower and funding. We find this argument unpersuasive. Pennsylvania must allocate its resources in such a manner to insure that all criminal defendants receive a fair trial. If the attorney general must assume additional cases in order to insure fair, conflict-free trials, then greater legal resources must be allocated to that office.