Commonwealth v. Ford

J-A08014-15
2015 Pa. Super. 183
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LOUIS PURNELL FORD,
Appellee No. 1235 MDA 2014
Appeal from the Order Entered July 14, 2014
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000097-2014
BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.
OPINION BY SHOGAN, J.: FILED SEPTEMBER 02, 2015
The Commonwealth of Pennsylvania appeals from the order removing
the Clinton County District Attorney’s Office from the prosecution of drug
charges filed against Louis Purnell Ford (“Appellee”). We reverse and
remand.
Appellee filed a motion for recusal of the Clinton County District
Attorney’s Office, averring as follows:
1. On January 30, 2014, [Appellee] was charged with
numerous crimes incident to two (2) alleged deliveries of
heroin.
2. The basis for both alleged crimes involves the use of a
confidential informant who is the only individual claimed to
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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have firsthand knowledge of the actual transactions
alleged.
3. For this reason, the credibility and reliability of the
confidential informant is crucial to the defense and/or
prosecution of this case.
4. In this regard, it is possible that [Appellee] would take the
stand in order to deny the allegations against him.
5. Should this occur, and because the credibility of [Appellee]
would then be an issue, [Appellee’s] prior criminal history
would be both relevant and admissible.
6. In this regard, [Appellee] entered a guilty plea to theft, a
second-degree misdemeanor, in connection with the
matter docketed to Clinton County No. 223 — 09,
Commonwealth v. Louis Ford, in which matter [Ford] was
represented by Attorney Paul Ryan, Esquire, in his capacity
as Clinton County Public Defender.
7. Attorney Ryan is now the Assistant District Attorney with
the Clinton County District Attorney’s Office which is
prosecuting the current case against [Appellee].
8. Furthermore, Attorney Ryan represented [Ford] in
connection with a revocation matter incident to a
prosecution where [Appellee] was also charged with
possession with intent to distribute controlled substances.
See Commonwealth v. Louis Ford, Clinton County No. 284
— 08.
9. Though [Appellee] was represented by attorney Patrick
Johnson, Esquire, in connection with the matter docketed
to Clinton County No. 284 — 08, [Appellee] did confer with
and otherwise seek the advice of Attorney Ryan in
connection with the revocation matter and the underlying
case.
10. In light of the foregoing, [Appellee] believes, and
therefore, alleges, that the Clinton County District Attorney
cannot prosecute this matter in that [a] conflict of interest
currently exists in this regard.
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11. For this reason, [Appellee] requests that the Court cause
the Clinton County District Attorney to refer this matter to
the Pennsylvania Attorney General, or to some other
appropriate entity, for further prosecution.
Motion for Recusal, 7/8/14, at 1–2. At a recusal hearing on July 10, 2014,
defense counsel confirmed that then public defender, now Assistant District
Attorney (“ADA”) Paul Ryan, had been assigned to prosecute Appellee’s drug
case. N.T., 7/10/14, at 6. Defense counsel argued that Appellee had
disclosed relevant confidential information to ADA Ryan that could be used
against Appellee in the current prosecution. N.T., 7/10/14, at 3–10. The
trial court granted Appellee’s motion and removed the Clinton County
District Attorney’s Office from prosecution of Appellee’s January 2014 drug
charges. Id. at 12–13. This appeal followed. The Commonwealth and the
trial court complied with the requirements of Pa.R.A.P. 1925.
The Commonwealth states a single question for our consideration:
I. DID THE TRIAL COURT ERR IN REMOVING THE CLINTON
COUNTY DISTRICT ATTORNEY’S OFFICE AS THE
PROSECUTING AGENCY IN THE CASE?
Commonwealth’s Brief at 4.
The Commonwealth argues that Appellee “has failed to present
anything other than a mere assertion that a conflict exists on the part of the
Assistant District Attorney, who represented him in 2 unrelated cases,
occurring 5 years prior to the allegations at issue in this case.”
Commonwealth’s Brief at 11. In response, Appellee relies on Pennsylvania
Rule of Professional Conduct (“Pa.R.P.C.”) 1.9 to support his argument that,
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“[i]n light of [Attorney Ryan’s] prior representation [of Appellee], the
interests of Assistant District Attorney Ryan’s current client, the
Commonwealth, are adverse to the Appellee’s interests.” Appellee’s Brief at
3.
Rule 1.9, Duties to Former Clients, states: “A lawyer who has formerly
represented a client in a matter shall not thereafter represent another
person in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the former
client . . . .” For purposes of Rule 1.9, “[m]atters are ‘substantially related’
. . . if they involve the same transaction or legal dispute or if there otherwise
is a substantial risk that confidential factual information as would normally
have been obtained in the prior representation would materially advance the
client’s position in the subsequent matter.” Pa.R.P.C. 1.9, cmt. The
comment further explains that, “[w]hen a lawyer has been directly involved
in a specific transaction, subsequent representation of other clients with
materially adverse interests in that transaction clearly is prohibited.” Id.
“We review the trial court’s decisions on disqualification and conflict of
interest for an abuse of discretion.” Commonwealth v. Simms, 799 A.2d
853, 856–857 (Pa. Super. 2002) (internal citations omitted). “A prosecution
is barred when an actual conflict of interest affecting the prosecutor exists in
the case; under such circumstances a defendant need not prove actual
prejudice in order to require that the conflict be removed.”
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Commonwealth v. Orie, 88 A.3d 983, 1021 (Pa. Super. 2014), appeal
denied, 99 A.3d 925 (Pa. 2014) (quoting Commonwealth v. Eskridge, 604
A.2d 700, 702 (Pa. 1992)).
At the recusal hearing, defense counsel identified four types of
information ADA Ryan possessed as a result of his prior representation of
Appellee: “Facts behind the prior record, prior record, truth telling pattern
of [Appellee], similarity of criminal cases, both possessions with intent to
deliver.” N.T., 7/10/14, at 5. The Commonwealth challenged the import of
the proffered information on several grounds: “None of [it] would be
admissible at trial;” any district attorney looking at Appellee’s file would
learn of his prior record; and there is no evidence that ADA Ryan “actually
has that information.” Id. at 8–11. In response, defense counsel argued
that Appellee “would be required to disclose privileged information in order
to prove that he had disclosed privileged information in the past, thereby
making it not privileged.” Id. at 11. Citing Pa.R.P.C. 1.9, the trial court
stated:
The [c]ourt believes that there is a substantial risk that
confidential factual information which would normally have been
obtained in prior representation has been obtained and could be
used to materially advance the client’s position, that being the
Commonwealth’s, in the subsequent matter. I’m not saying that
Mr. Ryan would do that, but it’s there. And I’m not going to risk
a mistrial on this sort of thing.
N.T., 7/10/14, at 12–13.
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Upon review of the plain language of Rule 1.9 and its comment, we
conclude that a conflict of interest exists. As a member of the Clinton
County Public Defender’s Office, ADA Ryan twice represented Appellee,
including once in a drug case. Now, ADA Ryan has been assigned to
prosecute Appellee in this underlying drug case. These matters are
substantially related in that ADA Ryan’s prior representation of Appellee
presents a substantial risk that he obtained confidential factual information
which would materially advance the Commonwealth’s position in the current
matter. Pa.R.P.C. 1.9, cmt. Moreover, as a “former client,” Appellee is not
required to reveal the confidential information learned by ADA Ryan “in order
to establish a substantial risk that the lawyer has confidential information
that could be used adversely to the former client’s interests in the
subsequent matter.” Id. Because ADA Ryan was directly involved in
Appellee’s prior drug case, his subsequent representation of the
Commonwealth in this drug case—with its materially adverse interests—
“clearly is prohibited.” Id. Thus, we conclude the trial court did not abuse
its discretion when it disqualified ADA Ryan.
In its effort to avoid a mistrial, the trial court also disqualified the
entire Clinton County District Attorney’s Office. N.T., 7/10/14, at 13.
However, “where a lawyer who has represented a criminal defendant joins a
prosecutor’s office, disqualification of the entire office is not necessarily
appropriate. That lawyer is of course disqualified from participating in the
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case on behalf of the prosecution. But individual rather than vicarious
disqualification is the general rule.” Commonwealth v. Miller, 422 A.2d
525, 529 (Pa. Super. 1980) (citations omitted).
[T]he mere fact that an attorney or employee of the [public
defender’s] [o]ffice has moved to the [DA’s] [o]ffice does not
necessarily compel disqualification of the entire DA’s Office.
Rather, courts will look closely at the specific facts of the case
and any remedial measures to determine whether any actual
conflict of interest exists.
Simms, 799 A.2d at 857. See Commonwealth v. Smith, 835 A.2d 399,
401 (Pa. Super. 2003) (applying general rule where appellant did not allege
that defender-turned ADA participated in prosecution of his case and
defender-turned ADA testified he had “no communication whatsoever
concerning the case with anyone in the District Attorney’s Office”).
Upon review, we conclude that, in its current state, the record before
us does not support an exception to the general rule, i.e., disqualification of
the entire Clinton County District Attorney’s Office. The record does not
indicate whether ADA Ryan disclosed confidential information to other
members of the Clinton County District Attorney’s Office. Nor does the
record indicate whether a sufficient fire wall has been or could be erected to
contain or prevent such disclosure. Therefore, we remand to the trial court
for a hearing to determine whether confidential information has been
disclosed and whether any measures are in place or could be implemented
to contain or prevent such disclosure. Thereafter, the trial court shall decide
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if the entire Clinton County District Attorney’s Office should be disqualified
from prosecuting Appellee.
Order reversed. Case remanded for proceedings consistent with this
Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/2/2015
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