Com. v. Marshall, D. ( 2020 )

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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