Commonwealth v. Johnson

663 A.2d 720, 444 Pa. Super. 153
CourtSuperior Court of Pennsylvania
DecidedAugust 9, 1995
StatusPublished
Cited by2 cases

This text of 663 A.2d 720 (Commonwealth v. Johnson) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Johnson, 663 A.2d 720, 444 Pa. Super. 153 (Pa. Ct. App. 1995).

Opinion

DEL SOLE, Judge:

In this appeal, we must determine whether the trial court violated Appellant’s State and Federal Constitutional right to counsel when it removed trial counsel for unauthorized review of confidential information relating to a Commonwealth witness. We hold that the removal of Appellant’s counsel, under the circumstances of this case was not a violation of Appellant’s State or Federal guarantees.

Appellant was arrested in 1993 for the murder of Elvira Hayes who was Wiled in February of 1981. At the time of Ms. Hayes’ death, her son L.P. was 2/4 years old. Young L.P. was found sleeping on the body of his deceased mother as she laid in the second floor hallway of their home. Ms. Hayes died by strangulation, but no one was charged with the murder at the time. The victim’s sister, Brenda Thompson, and her husband adopted L.P., and he was taken to the Philadelphia Child Guidance Clinic for counseling shortly after the murder to help him cope with his mother’s death. When L.P. exhibited difficulties in learning and school behavior, he was evaluated at the Irving Schwartz Institutes. Then, in 1988, L.P. was placed in a partial hospitalization program at the Eastern Pennsylvania Psychiatric Institute (EPPI). At the end of 1990, he left the program and returned in January 1991 for one month of inpatient treatment. During the partial hospitalization program, L.P. was evaluated at Children’s Seashore House, and he was also evaluated by school personnel regularly.

Thirteen years after his mother’s death, L.P. provided a statement that prompted the arrest of Appellant. He recalled seeing the Defendant lying on top of his mother at the place where the body was found. He testified at the preliminary hearing that although he had not related this to anyone until recently, he “always had the picture” in his mind.

The Public Defender Association was appointed to represent appellant. In preparing for trial, Thomas Innes and William Bach-mann, filed motions for discovery of Lamar’s entire psychiatric file from every institution that evaluated him. The defense argued that since L.P. did not disclose his memory of the night of the murder until thirteen years after the event, his psychiatric records were necessary for the proper preparation of the defense.

At a hearing on December 22, 1993, the defense informed the court that an order was necessary to obtain the psychological records of L.P. due to their confidential nature. The court determined that the proper procedure was to order the records be produced in court at a time certain for review by the judge who would determine whether relevant information was contained in the records that should be released to counsel. The records from the Child Guidance Clinic were produced in court, and, after judicial review, [722]*722they were made available to defense counsel. Thereafter, the court issued a separate order dated December 29,1993 to EPPI to produce in court on January 11, 1994 any and all records relating to L.P. Despite the court order, the EPPI records were hand delivered to defense counsel who read and copied them. The EPPI records also contained L.P.’s records from the Irving Schwartz Institute, Children’s Seashore House and the Philadelphia school system. When the trial court realized the extent to which the court order had been violated by defense counsel, it decided to provide both sides with L.P.’s psychological evaluations to remedy any unfair advantage the defense gained by perusing the EPPI records before sending it to the court. The Commonwealth, however, did not review the records but petitioned to have a child advocate appointed to protect L.P.’s rights.

The court appointed Louis Schoener, Esquire as child advocate for L.P. since neither he nor his guardian, Ms. Thompson, had waived Ms right to confidentiality regarding his mental health records. A hearing was held on July 12, 1994 where Mr. Schoener argued that L.P.’s records were absolutely privileged by 42 Pa.C.S.A. § 59441 and Commonwealth v. Smith, 414 Pa.Super. 208, 606 A.2d 939, alloc. denied, 533 Pa. 624, 620 A.2d 490 (1992) and Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992) (en banc), alloc. denied, 531 Pa. 638, 611 A.2d 711 (1992). Mr. Schoener also suggested that the best recourse to protect confidentiality was to remove defense counsel. The Commonwealth also held the position that removing defense counsel was the only means to protect L.P.’s rights without jeopardizing Appellant’s right to a fair trial. After a hearing was held on August 2, 1994, the court removed the Public Defender Association as counsel for Appellant and appointed new counsel. We now review this action.2

We recognize the significance of the right to counsel. In Commonwealth v. Cassidy, [723]*723390 Pa.Super. 359, 568 A.2d 693 (1989), appeal denied, 525 Pa. 641, 581 A.2d 567 (1990), we stated:

Criminal defendants are given numerous rights under our state constitution: the right to counsel; the right to know the charges filed against them; the right to face the witnesses testifying against them; the right to subpoena individuals to testify in their defense; the right to a speedy trial; the right against self-incrimination; and the right to trial by jury. See Pa. Const, art. 1, § 9 (Supp.1989). Of all of these rights, the right to counsel is arguably the most important. It is the key which opens the door to all of a defendant’s other rights.

Id. at 390 Pa.Super. 364, 568 A.2d at 695-696.

Appellant correctly states that Article 1, Section 9, of the Pennsylvania Constitution and the Sixth Amendment of the U.S. Constitution provide a criminal defendant with the right to counsel of his choice. Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959).

“[T]he accused regardless of financial status is guaranteed the right to the assistance of counsel, either counsel of his own choosing, or if indigent or otherwise unable to secure counsel counsel [sic] assigned by the court. Gideon v. Wainwright, [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)].” (emphasis added).

Moore v. Jamieson, 451 Pa. 299, 307, 306 A.2d 283, 288 (1973). However, a criminal defendant is not entitled to court-appointed counsel of choice at the outset of representation, Commonwealth v. Stiles, 229 Pa.Super. 411, 323 A.2d 841 (1974), nor is the choice of retained counsel an absolute right. Commonwealth v. Baines, 480 Pa. 26, 389 A.2d 68 (1978). Instantly, the trial court determined that Lamar’s psychiatric records are protected from disclosure by 42 Pa.C.S.A. § 5944 and defense counsel’s action of reviewing the EPPI files prior to review by the trial court eradicated that protection. The trial court further stated that Appellant’s indigence was not a factor considered by the court when deciding whether to remove counsel.

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Bluebook (online)
663 A.2d 720, 444 Pa. Super. 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-johnson-pasuperct-1995.