Com. v. Phillips, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAITLIN MARIE PHILLIPS BAILEY :
:
Appellant : No. 1761 WDA 2019
Appeal from the Judgment of Sentence Entered November 1, 2019
In the Court of Common Pleas of Greene County Criminal Division at
No(s): CP-30-CR-0000258-2018
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
CONCURRING MEMORANDUM BY BOWES, J.: FILED: June 10, 2021
Although I am constrained to concur in the Majority’s holding that the
Commonwealth did not abuse its discretion in denying Appellant’s request for
accelerated rehabilitative disposition (“ARD”), I write separately to note my
concern regarding the actions of District Attorney Marjorie Joan Fox, Esquire.1
At the outset, I note that “[a]s an officer of the court and instrument of
the criminal justice system, the prosecutor’s duty is to seek justice, not simply
convictions.” Commonwealth v. Clancy, 192 A.3d 44, 59 (Pa. 2018). More
pointedly, a district attorney “represents the Commonwealth, and the
Commonwealth demands no victims. It seeks justice only, equal and impartial
justice, and it is as much the duty of the district attorney to see that no
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1 Marjorie Joan Fox, Esquire, retired as District Attorney of Greene County at
the end of her term on January 6, 2020. See Petition to Withdraw as Counsel,
12/30/19, at ¶ 2.
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innocent [person] suffers as it is to see that no guilty [person] escapes.
Hence, [she] should act impartially.” Commonwealth v. Toth, 314 A.2d
275, 278 (Pa. 1974). Where a district attorney yields to “hot zeal” by
improperly seeking to influence the outcome of a case, he or she is “no longer
an impartial officer,” but a “heated partisan.” Id.The events in this case began on June 14, 2018, when Appellant called
the Pennsylvania State Police (“PSP”) to report a “domestic dispute occurring
inside her vehicle with her husband.” Affidavit of Probable Cause, 6/14/18, at
1. Although that altercation ended without police intervention, Appellant
arrived at the PSP barracks in Waynesburg, Pennsylvania, shortly thereafter.
She was arrested upon suspicion of driving under the influence (“DUI”).
Trooper Robert A. Dittrich testified that he learned about Appellant’s
outstanding warrant in West Virginia contemporaneously to her arrest. See
N.T. Trial, 9/24/19, at 31-32, 54. The PSP immediately contacted authorities
in West Virginia, who stated that they did not want Appellant to be detained
for extradition in relation to the May 2015 capias. Id. at 32-33.
Trooper Dittrich’s testimony also established that the PSP shared West
Virginia’s non-extradition position with the District Attorney’s office in two
October 2018 emails. Id. at 40-41. At a January 15, 2019 hearing on
Appellant’s Pennsylvania charges, the issue of Appellant’s outstanding warrant
came up and Appellant’s attorney represented that West Virginia remained
uninterested in extraditing Appellant. Id. at 52 (“[Appellant’s attorney]
indicated to the Court that apparently West Virginia did not want her.”).
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Shortly after that hearing, DA Fox directed her office to contact authorities in
West Virginia concerning Appellant’s still-pending charges. Id. DA Fox would
not directly respond to questions concerning whether she had spoken with
anyone from West Virginia concerning Appellant’s case, nor could she offer
any description of what the substance of those communications might have
been. Id. at 53. Rather, she would only speculate: “If [West Virginia] said
they wanted to have her extradited, she would have been arrested as a matter
of course as a fugitive.” Id.
While its precise substance is unknown, the effect of DA Fox’s ex parte
communication with West Virginia is quite clear from the certified record. The
next evening, January 16, 2019, a uniformed officer of the PSP arrived at
Appellant’s residence and took her into custody her pursuant to 42 Pa.C.S. §
9134, which relates exclusively to arrest prior to extradition. See Affidavit of
Probable Cause, 1/16/19, at 1. The capias supporting Appellant’s requisition
arrest was the same one that West Virginia had issued nearly four years earlier
in May 2015. See N.T. Trial, 9/24/19, at 54. Appellant was incarcerated for
two days before securing bail.
Troublingly, Appellant’s purported extradition to West Virginia never
took place. At a preliminary hearing held less than a week later, Appellant
indicated that she was already in the process of addressing the charges in
West Virginia at the time of her arrest. See Order, 1/22/19, at 1. By February
13, 2019, the Commonwealth had been provided with “proof” that Appellant
had submitted to process in West Virginia. Order, 2/13/19, at 1. While noting
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that Appellant “still has unresolved issues in the State of West Virginia,” the
trial court similarly concluded in March 2019 that “the lack of resolution is not
attributable to [Appellant].” Order, 3/4/19, at 1 (emphasis added).
Ultimately, the Commonwealth vacated the requisition charge after West
Virginia declined to take any action for six months. See Order, 6/3/19, at 1.
As a general matter, the Commonwealth has a duty to cooperate with
our sister jurisdictions in extraditing fugitives from justice pursuant to the
Uniform Criminal Extradition Act. See 42 Pa.C.S. §§ 9121-48. However,
purview over matters related to extradition has been statutorily assigned to
the Governor of Pennsylvania. See 42 Pa.C.S. § 9123 (“[I]t is the duty of the
Governor of this Commonwealth to have arrested and delivered up to the
executive authority of any other state of the United States any person charged
in that state with treason, felony, or other crime, who has fled from justice
and is found in this Commonwealth.”). The local district attorneys of
Pennsylvania’s counties have no direct involvement in the process, as DA Fox’s
own testimony acknowledges. See N.T. Trial, 9/24/19, at 51-52. Thus, it is
entirely unclear to me why DA Fox saw fit to involve her office in out-of-state
matters over which she had no direct jurisdictional concern or authority.
It beggars belief that West Virginia would request Pennsylvania’s
assistance in extraditing Appellant as a putative fugitive, but then sit on their
hands for one-half of a year. Stranger still, Appellant’s unchallenged pre-trial
testimony indicates that she was already in the process of addressing this
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outstanding charge at the time of her sudden detention in Pennsylvania.2 See
N.T. Trial, 9/24/19, at 61 (Appellant testifying that her West Virginia attorney
had contacted authorities concerning her outstanding charge “prior to January
16, 2019.”). I emphasize that the contrived arrest of Appellant for requisition
has direct bearing upon the instant appeal concerning the Commonwealth’s
denial of ARD. As DA Fox explained during her pre-trial testimony: “The fact
that [Appellant] refused and declined to – to submit herself to the authorities
in West Virginia and continues to have an unresolved [DUI] charge in West
Virginia, in my opinion, made her not a good candidate for an [ARD]
recommendation.” Id. at 69.
DA Fox attempted to distance herself from Appellant’s fruitless
detention. Compare N.T. Trial, 9/24/19, at 49 (“I recall appearing before the
Court when the issue of [Appellant’s] nonreporting in West Virginia was raised
and [her attorney] said they apparently . . . don’t want her so then inquiry
was made and apparently, they did.”) with id. at 70 (“There’s nothing to
suggest that I have any animus towards her or anything that – and I did not
– I did not force West Virginia to say they wanted her as a fugitive.”).
However, I do not view it as mere coincidence that Appellant was arrested
within twenty-four hours of the Greene County District Attorney’s office
reaching out to West Virginia.
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2 Documentation from West Virginia confirms that proceedings in Appellant’s
case there were underway in January 2019.
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Nonetheless, our Supreme Court has endowed the district attorneys with
extraordinary discretion in the context of ARD recommendations:
The decision to submit a case for ARD rests in the sound discretion
of the district attorney, and absent an abuse of that discretion
involving some criteria for admission to ARD “wholly, patently and
without doubt unrelated to the protection of society or the
likelihood of a person's success in rehabilitation, such as race,
religion or other such obviously prohibited considerations, the
attorney for the Commonwealth must be free to submit it for ARD
consideration based on his view of what is most beneficial for
society and the offender.”
Commonwealth v. Sohnleitner, 884 A.2d 307, 313 (Pa.Super. 2005)
(emphasis in original) (quoting Commonwealth v. Lutz, 495 A.2d 928, 935
(Pa. 1985)). Thus, “[a] district attorney may base a decision to grant or deny
admission to ARD on any consideration related to the protection of society
and the rehabilitation of the defendant.” Id. (emphasis in original).
Appellant ultimately admitted that she had failed to appear while out on
bond with regard to her West Virginia charges. See N.T. Trial, 9/24/19, at
61-62. DA Fox interpreted this oversight as an indication that Appellant would
not fare well in ARD. Id. at 69 (“She skipped bail on this charge. That does
not bode well for someone completing the ARD program.”). This reasoning
does not constitute an abuse of discretion.
However, this case is deserving of only the barest of affirmances. DA
Fox’s actions in seeking to ensure Appellant’s arrest as a fugitive under
dubious circumstances smacks of gamesmanship. Not only was requisition
contrary to West Virginia’s stated opposition to extradition, it was entirely
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unnecessary given Appellant’s submission to that state’s process. Tellingly,
the only appreciable effect of Appellant’s requisition arrest was to grant DA
Fox an advantage in the plea negotiations in the above-captioned case, i.e.,
by bolstering her refusal to recommend an ARD disposition. I believe that DA
Fox skirted a line and failed to wield the power of her office with appropriate
restraint. It is deeply distressing that she sought to exert influence over an
out-of-state proceeding and, thereby, gained advantage in a domestic matter.
The true injustice here is that Appellant was subjected to needless
incarceration brought about by bureaucratic whim. Given the fraught
procedural history of Appellant’s West Virginia case and its uncertain status,
prudent caution would have served DA Fox much better.3
I concur.
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3 See, e.g., Stull v. Reber, 64 A. 419, 421 (Pa. 1906) (“[I]t is an old and
sound maxim that an ounce of prevention is worth a pound of cure.”).
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