Com. v. Rodriguez, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAVIER RODRIGUEZ
Appellant No. 3155 EDA 2015
Appeal from the Judgment of Sentence September 14, 2015
in the Court of Common Pleas of Delaware County Criminal Division
at No(s): CP-23-CR-0007407-2014
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 16, 2017
Appellant Javier Rodriguez files this appeal from his sentence of life
imprisonment without parole for second-degree murder1 plus a consecutive
term of three to six years’ imprisonment for carrying firearms without a
license.2 Appellant argues the trial court abused its discretion when it
denied his motion for mistrial due to a conflict of interest that prevented his
counsel from presenting evidence to rebut the testimony of a
Commonwealth witness. We affirm.
The trial court summarized the factual history of this case as follows:
On September 17, 2014, [Appellant] and a companion,
“Aaron[,]” went to 113 Hancock Street in Chester, PA, to
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(b).
2
18 Pa.C.S. § 6106(a).
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buy Percocet. Anthony Capetola and Maria Occhiolini lived
at this address with Ms. Occhiolini’s young son. The
victim, Robert Dewees, and Mr. Capetola were longtime
friends[,] and Dewees frequently visited Capetola’s home.
The victim had a prescription for Percocet and it was
widely known that he sold the Percocet to others.
Aaron was a friend of Ms. Occhiolini’s. He was a daily
visitor to the home and obviously was known to Ms.
Occhiolini. He was also known to Mr. Capetola. At about
4:30 p.m. on September 17, 2014[,] Aaron and
[Appellant] arrived at the home and Aaron told Ms.
Occhiolini that [Appellant] was there to buy Percocet from
Dewees. Dewees was not interested in selling the pills to
[Appellant]. [Appellant] and his companion ordered
Dewees to give up either “the pills” or the money. When
Dewees refused, the men attempted to relieve him of a
backpack that held cash and a cell phone[,] and a struggle
ensued. [Appellant] pulled a large, black semi-automatic
handgun from his waistband and pointed the gun at
Dewees. When Dewees refused to relinquish the
backpack[, Appellant] shot him in the chest.
Trial Ct. Op., 12/3/15, at 2-3 (record citations omitted).
James Wright, Esq., an attorney in the Public Defender’s Office
(“defense counsel”), was appointed to represent Appellant. Capetola
testified at Appellant’s preliminary hearing in November 2014, and defense
counsel anticipated that Capetola would testify during trial as a
Commonwealth witness. N.T., 7/14/15, at 8-9.
Shortly before the scheduled date of trial, defense counsel learned that
Charles Williams, Esq., another attorney in the Public Defender’s Office, had
represented Capetola several months earlier on an unrelated drug charge.
Capetola had entered a negotiated plea of guilty to possession of cocaine in
return for a sentence of one year’s probation and community service. Trial
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Ct. Op. at 4 n.3. “This sentence fell within the standard range of restorative
sanctions to one month suggested by the Pennsylvania Sentencing
Guidelines. His prior record score was zero.” Id.
On the morning of trial, defense counsel advised the trial court that he
might need to cross-examine Capetola about whether the Commonwealth
induced his testimony against Appellant by giving him a favorable sentence
in his own case. N.T., 7/14/15, at 8-9. Defense counsel requested that
Capetola waive “[a] potential conflict [of interest] on his end because my
office is potentially doing him a disservice by impeaching him on his own
[guilty plea in his] criminal [case] that we represented him [on].” Id. at 9.
The assistant district attorney responded:
[W]ith respect to Mr. Capetola and whether there is any
conflict of interest on his part, Mr. Capetola was a former
client of the Public Defender’s Office. He went through the
criminal justice system. His case is closed. He pled guilty
in April. We’re in July now. The period of appeal has
closed. He is not appealing that conviction. He’s no longer
represented by the Public Defender’s Office. The fact that
Mr. Capetola has a criminal conviction during the pendency
of this investigation, yes, I understand that’s subject to
cross-examination. But there’s no confidential information
that the Public Defender’s Office learned through their
representation of Mr. Capetola which will come in during
the trial. There’s nothing that’s going to be used against
him to incriminate him in the other criminal activity. The
only thing that’s going to be permitted for cross-
examination purposes is the fact that he had a criminal
conviction. And that’s the extent of what will be
addressed. That’s public information. It’s part of the
[Office of Judicial Support] records. It’s something that
anyone can go on the open source and find out. So there
is no conflict of interest on behalf of Mr. Capetola with
respect to the Public Defender’s Office.
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Id. at 9-10. The trial court ruled that there was no conflict, adding that
defense counsel “can certainly cross-examine [Mr. Capetola] to see if there
was any deal or any leniency offered in connection with his testimony here
today.” Id. at 11.
The trial court recounted the trial proceedings as follows:
Mr. Capetola testified at trial . . . that he had been out
of the house earlier[,] and when he returned[,] Aaron and
[Appellant] were there with Dewees. He heard the three
men arguing about money. The physical altercation
followed and Aaron tackled Mr. Dewees. Mr. Capetola
helped Mr. Dewees to his feet. Mr. Capetola then turned
toward [Appellant] and watched him shoot Dewees in the
chest from a distance of about three feet. After the
shooting[,] [Appellant] and Aaron took off running. Mr.
Capetola called 911[,] and assistance arrived shortly
thereafter. Responding officers found Mr. Dewees gasping
for air and unable to speak. Emergency medics attempted
to provide medical aid[,] but Mr. Dewees succumbed to his
wounds at the scene. Thereafter, on September 19,
2014[,] Capetola picked [Appellant]’s picture from a photo
array and identified him as the shooter. He also identified
[Appellant] at the preliminary hearing and made [an] in-
court identification at trial. Ms. Occhiolini also identified
[Appellant] in a photo array and at trial.
Defense counsel attempted to impeach the credibility of
Mr. Capetola by suggesting that the victim, Mr. Dewees,
frequently sold Percocet from Mr. Capetola’s house and
that Mr. Capetola was very much aware of that fact. Mr.
Capetola conceded that he was aware that Mr. Dewees
sold Percocet but maintained that these transactions took
place at locations other than the Capetola residence.
[Defense] counsel further suggested that drug
paraphernalia was in Capetola’s residence and that
Capetola had been drinking before the shooting took place.
Additionally, [defense] counsel raised a discrepancy in the
information Capetola provided to the police immediately
after the shooting. Although Mr. Capetola knew and
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recognized Aaron as one of the actors, he did not provide
law enforcement with his name when he recounted the
incident for investigators after the killing. [Defense]
counsel cross-examined Mr. Capetola extensively regarding
his failure and perhaps unwillingness to identify Aaron, a
man known to him, as one of the actors and his willingness
to identify [Appellant] as the shooter. Near the conclusion
of cross-examination, [defense] counsel raised the fact
that about two weeks after Mr. Capetola gave his initial
statement and before he testified at the preliminary
hearing, he was arrested and faced drug charges. Mr.
Capetola’s case was continued at least three times in
District Court by the District Attorney’s Office and was
finally resolved with a negotiated guilty plea on April 27,
2015. [Defense] counsel inquired:
Q: And they weren’t continuing your case to help
you out, were they?
A: What do you mean help me out?
Q: To give you a better deal because you were a
Commonwealth witness, right? You didn’t get a
better deal, right?
A: A better deal for what? No. I didn’t get a—
Q: For your—
A: —better deal.
Q: —open drug charges.
A: For what? An open drug charge?
Q: Yes sir.
***
Q: Okay, and that was because the D.A.’s office was
trying to help you out because you were one of their
witnesses?
A: It had nothing to do with the D.A.’s office.
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On redirect[,] Mr. Capetola testified that in April of
2015[,] he pled guilty to possession and also that he did
not tell either his attorney or the assistant district attorney
handling the case that he was a witness in a homicide
case.
The next day, July 15, 2015[, defense] counsel moved
for a mistrial and requested an ex parte hearing. Mr.
Wright argued that a conflict of interest existed because
after Mr. Capetola testified, Mr. Wright spoke with
Assistant Public Defender Charles Williams. Mr. Williams
represented Mr. Capetola in his drug case. Mr. Wright
represented that in fact, Capetola told Mr. Williams that he
was a witness in a homicide case.
The request for an ex parte hearing was granted. Mr.
Wright presented Williams and offered this testimony:
[Defense counsel]: Without getting to what may or
may not be in the file, did you indicate to me that
you believe the file contains information that Mr.
Capetola had advised our office that he was a
witness in a homicide?
Mr. Williams: Yes.
[Defense] counsel argued that because he was unable
to bring this testimony before the jury to counter
Capetola’s insistence that he did not tell his attorney that
he was a witness in this case, a mistrial was warranted.
Trial Ct. Op. at 3-5 (record citations omitted). The trial court denied the
motion.
On July 16, 2015, the jury found Appellant guilty of the above-
mentioned crimes. On September 14, 2015, the trial court sentenced
Appellant. Appellant filed a timely appeal on October 13, 2015, and both
Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant raises one issue in this appeal:
Whether the trial court erred in denying Appellant’s
[m]otion for a mistrial when [defense] counsel was
restricted in impeaching an eyewitness due to another
attorney in [c]ounsel’s office having previously represented
the witness on criminal charges[?]
Appellant’s Brief at 3.
Appellant claims that the trial court should have granted a mistrial
because defense counsel’s conflict of interest prevented him from presenting
evidence of a prior inconsistent statement that Capetola made to Attorney
Williams, Capetola’s former counsel in the Public Defender’s Office. By
raising “[attorney-client] privileged communications between [Capetola] and
[Williams],” Appellant argues, “the prosecutor created a situation where
Appellant’s counsel was torn between his obligation to Appellant and what he
believed his duty was to a former client [Capetola].” Appellant’s Brief at 7.
Appellant further complains: “[T]he fact that Appellant’s counsel did not call
Capetola’s former attorney to impeach [Capetola] amounted to actual
prejudice.” Id. No relief is due.
The court may grant a mistrial “when an event prejudicial to the
defendant occurs during trial.” Pa.R.Crim.P. 605(B). A mistrial is a remedy
of last resort; it is not appropriate unless “an incident is of such a nature
that its unavoidable effect is to deprive the appellant of a fair and impartial
tribunal.” Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa. Super.
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2012). “The decision to grant a mistrial is within the discretion of the trial
judge[.]” Commonwealth v. Brown, 711 A.2d 444, 455 (Pa. 1998).
The trial court addressed Appellant’s request for a mistrial as follows:
Communications between Mr. Capetola and Mr. Williams
made during the course of Mr. Williams’s prior
representation were privileged. See 42 Pa.C.S. § 5916,
Confidential communications to attorney, (“In a criminal
proceeding counsel shall not be competent or permitted to
testify to confidential communications made to him by his
client, nor shall the client be compelled to disclose the
same, unless in either case this privilege is waived upon
the trial by the client.”). The attorney-client privilege is for
the benefit of the client, as the privilege holder and exists
regardless of whether disclosure is sought to be compelled
from the attorney or from the client himself. . . . [Defense
counsel] cross-examined Mr. Capetola thoroughly given
this limitation, one that in any case could not be overcome
by different counsel. The jury heard the terms of the plea
and Mr. Capetola’s insistence that he did not benefit in his
own negotiations from his role as a witness in this
homicide trial. [Defense] counsel appropriately and
effectively challenged Capetola’s credibility through cross-
examination without resort to breach of the existing
privilege, an effort which would not have been allowed on
the facts before the court. Given such facts[,] a conflict
did not exist and [Appellant] was not prejudiced.
Therefore, [Appellant’s] claim that he was deprived of a
fair and impartial trial is without merit.
Trial Ct. Op., at 8-9 (some citations omitted).
We agree with the trial court’s decision to deny a mistrial, albeit for
different reasons.3 Ordinarily, Capetola’s statement to attorney Williams
that he was a witness in a homicide case ordinarily would be privileged and
3
See Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super. 2001)
(“[I]f a trial court’s decision is correct, we may affirm on any ground”).
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non-admissible. Here, however, Capetola testified that he did not tell
Williams he was a witness, which opened the door for Williams to testify that
Capetola said he was a witness. Thus, defense counsel had no basis to
claim that Williams’ testimony was inadmissible and no basis for seeking a
mistrial.
Section 5916 of the Judicial Code provides: “In a criminal proceeding
counsel shall not be competent or permitted to testify to confidential
communications made to him by his client, nor shall the client be compelled
to disclose the same, unless in either case this privilege is waived upon the
trial by the client.” 42 Pa.C.S. § 5916. “The attorney-client privilege runs to
the benefit of the client”—here, Capetola. In re Thirty-Third Statewide
Investigating Grand Jury, 86 A.3d 204, 223 (Pa. 2014). The purpose of
this privilege is “to foster candid communications between counsel and
client, so that counsel may provide legal advice based upon the most
complete information from the client.” Id. at 216.
Under the “fair response” doctrine, the Commonwealth may introduce
otherwise privileged evidence when the defendant or defense counsel opens
the door for such evidence. See, e.g., Commonwealth v. Lettau, 986
A.2d 114, 120-21 (Pa. 2009) (where defendant testified on direct
examination that he had been cooperative during police investigation and
had provided investigating officer with his side of the story, prosecutor was
entitled to impeach defendant with cross-examination that suggested
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defendant had not provided officer with relevant information known by
defendant; prosecutor did not violate defendant’s post-arrest right to remain
silent, because cross-examination was fair response to defendant’s tactic of
portraying himself as cooperative). In particular, “[a] litigant opens the door
to inadmissible evidence by presenting proof that creates a false impression
refuted by the otherwise prohibited evidence.” Commonwealth v.
Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013).
In this case, when Capetola testified that he did not speak with
Attorney Williams about serving as a witness in a homicide case, he knew or
should have known that he placed in question whether he actually had a
conversation with Williams on this subject. Thus, he opened the door for
Williams to testify about whether he discussed this subject with Capetola,
even though the attorney-client privilege would normally preclude this
testimony. Because Appellant had the right to rebut Capetola’s testimony
with Williams’ testimony, the more extreme remedy of a mistrial was
unnecessary. The trial court thus acted within its discretion by denying
Appellant’s motion for a mistrial.
In any event, Appellant did not suffer any prejudice from the absence
of Williams’ testimony, because defense counsel was still able to impeach
Capetola’s credibility through other means. Specifically, “[t]he jury heard
the terms of [Capetola’s negotiated guilty] plea and Capetola’s insistence
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that he did not benefit in his own negotiations from his role as a witness in
this homicide trial.” Trial Ct. Op. at 9.
For these reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge Panella joins the memorandum.
Judge Bowes concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2017
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