J-S61009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TINA LOUISE SHAFFER

                            Appellant                 No. 1713 WDA 2015


           Appeal from the Judgment of Sentence December 9, 2014
              In the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000153-2014


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                       FILED SEPTEMBER 28, 2016

        Appellant, Tina Louise Shaffer, appeals from the judgment of sentence

entered in the Venango County Court of Common Pleas, Criminal Division,

following her jury trial conviction for murder of the third degree.1 We affirm.

        The relevant facts of this case as taken from the certified record are as

follows. On March 4, 2014, Appellant and the decedent, Appellant’s male

companion, were arguing about whether Appellant would leave him. In an

effort to convince Appellant to stay, the decedent grabbed his .22 caliber

gun, pointed it at his chest, and said he would kill himself if Appellant left

the decedent. The decedent placed Appellant’s hands on the gun, still aiming

at the decedent’s chest, and yelled at her to pull the trigger. In the ensuing
____________________________________________


1
    18 Pa.C.S.A. § 2502(c).
J-S61009-16


argument, Appellant and the decedent wrestled, and in the “heat of the

moment,” Appellant reported to police that she “must have pulled the

trigger.” N.T., Jury Trial, Day 2 of 5, 9/15/14, at 92. The gun fired, and the

bullet entered decedent’s chest, which became logged into his spinal cord

causing internal hemorrhaging and death.

      Following a five-day jury trial, the jury convicted Appellant of murder

of the third degree. The court ordered a pre-sentence investigation report

(“PSI”) on November 3, 2014. At the sentencing hearing, on December 9,

2014, the court stated on record that it heard the testimony of the

decedent’s sibling who recounted the decedent’s good character and

counsel’s argument regarding the trial evidence of the decedent’s behavior

toward Appellant, and that it considered the information in the PSI, the

Commonwealth’s recommended sentence, the Prison Inmate Evaluation

Report, the circumstances of the incident, and the applicable sentencing

guidelines. That day, Appellant was sentenced to 210 to 480 months’

incarceration, with a credit of 280 days for time served, and to pay

restitution to the decedent’s family of $8,000.00 and the costs of

prosecution.

      Following the imposition of sentence, counsel for Appellant entered an

oral motion to withdraw from the case, which the court granted. On

December 11, 2014, Appellant’s new counsel entered an appearance but

later filed a conflict-of-interest motion on December 18, 2014, for counsel’s


                                    -2-
J-S61009-16


prior representation of the decedent in a criminal case. That same day,

counsel filed a motion to extend the deadline to file a post-sentence motion.

The court subsequently granted both motions, and on December 23, 2014,

the court ordered conflict counsel to represent Appellant.

      Conflict counsel filed a petition for the extension of time to file a post-

sentence motion of twenty-one days following the filing of the transcript

proceedings. The court granted the request, and Appellant filed a timely

post-sentence motion, arguing the Commonwealth presented insufficient

evidence to establish Appellant possessed malice in the killing of the

decedent, the court imposed a manifestly excessive and unreasonable

sentence, and the prosecuting District Attorney had an impermissible conflict

of interest that should have resulted in his recusal from the case. The court

held a hearing on the post-sentence motion and later entered an opinion and

order on October 22, 2015, denying Appellant’s motion. Appellant filed a

timely appeal.

      Appellant raises three issues for our review:

         THE EVIDENCE IN THIS CASE WAS INSUFFICIENT TO
         PROVE THAT THE [APPELLANT] COMMITTED THE CRIME OF
         MURDER OF THE THIRD DEGREE, AS SUFFICIENT
         EVIDENCE WAS NOT PRESENTED TO SHOW THE SHE
         KNEW HER CONDUCT [WOULD] RESULT IN DEATH OR
         SERIOUS BODILY INJURY TO ANOTHER[.]

         THE LOWER COURT COMMITTED REVERSIBLE ERROR IN
         THAT ITS SENTENCE WAS MANIFESTLY EXTREME AND
         CLEARLY UNREASONABLE, AND NOT INDIVIDUALIZED AS
         REQUIRED BY LAW[.]


                                      -3-
J-S61009-16


         THE LOWER COURT ERRED IN FAILING TO REQUIRE THAT
         ANOTHER      PROSECUTOR       REPRESENT     [THE
         COMMONWEALTH] WHEN [APPELLANT] TESTIFIED THAT
         SHE HAD PREVIOUSLY HAD A RELATIONSHIP WITH THE
         PROSECUTOR[.]

Appellant’s Brief, at 2-3.

      A challenge to the sufficiency of evidence implicates the following

principles:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [trier] of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted) (emphasis added).

      Pennsylvania law states murder in the third degree is an unlawful

killing with malice but without the specific intent to kill. See 18 Pa.C.S.A. §

2502(c). See also Commonwealth v. Santos, 876 A.2d 360, 363–64 (Pa.




                                     -4-
J-S61009-16


2005); Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.

2001). Malice is defined as

          a “wickedness of disposition, hardness of heart, cruelty,
          recklessness of consequences, and a mind regardless of
          social duty, although a particular person may not be
          intended to be injured....[”] [M]alice may be found where
          the defendant consciously disregarded an unjustified and
          extremely high risk that his actions might cause serious
          bodily injury.

Id. (quoting Commonwealth v. Cottam, 616 A.2d 988, 1004 (Pa. Super.

1992). Additionally, the finder of fact may infer malice by considering the

totality of the circumstances. See Commonwealth v. Thomas, 656 A.2d

514, 516 (Pa. Super. 1995).

      “We review the trial court’s decisions on ... conflict of interest for an

abuse of discretion.” Commonwealth v. Sims, 799 A.2d 853, 856–857 (Pa.

Super. 2002) (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.” Commonwealth v. Orie, 88 A.3d

983, 1021 (Pa. Super. 2014), appeal denied, 627 Pa. 757, 99 A.3d 925

(2014) (quoting Commonwealth v. Eskridge, 604 A.2d 700, 702 (Pa.

1992)).

      Additionally, Pennsylvania Rules of Professional Conduct, 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


                                     -5-
J-S61009-16


substantially related matter in which that person's interests are materially

adverse to the interests of the former client....” 42 Pa.R.P.C. 1.9(a).

“Matters 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.” 42 Pa.R.P.C. 1.9, cmt. [3]. The comment further

states: “When 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.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Oliver J.

Lobaugh, we conclude Appellant is not entitled to relief. See Trial Court

Opinion, filed October 22, 2015, at 2-10 (analyzing each of Appellant’s

issues and finding no relief is due). Accordingly, we affirm on the basis of the

trial court’s opinion.

      We further observe the prosecuting District Attorney did not violate

the Pennsylvania Rules of Professional Conduct. See 42 Pa.R.P.C. 1.9(a).

Although Appellant was a former client of the prosecuting District Attorney in

2003, the prosecuting District Attorney did not represent the Commonwealth

in a substantially related matter in 2014 where Appellant’s confidential

information would have materially advanced the Commonwealth’s position.


                                      -6-
J-S61009-16


Id.; 42 Pa.R.P.C. 1.9, cmt. [3]. The prosecuting District Attorney entered an

appearance only for Appellant’s sentencing in 2003. He testified that no

confidential communications were used against Appellant in the 2014 trial,

he did not possess the factual basis for the 2003 incident, the 2003 incident

did not involve a crime of crimen falsi, and the 2003 case was unrelated to

the 2014 murder charges. See N.T., Post-Sentence Hearing, 8/11/15, at 11-

17, 24.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




                                    -7-
                                                                                               w.,v v•,   ,. ....
                                                                            Circulated 09/12/2016 01:49 PM




           IN THE COURT.OF COMMON PLEAS OF VENANGO COUNTY,
                          . - PENNSYLVANIA

COMMONWllALrn OF :PENNSYLVANIA                        .
                v,                                           C.R. No.: 153-2014


TINA LOUlSE SHAFFER,
      Defendant/Petitioner.


                                 OPINION     OF COURT
        AND NOW, October 21_, 2015, the Court has for consideration the Petitioner's

Post-Sentence Motion filed on July, 1, 201S. A hearing was held'on this Motion on August

11, 2015. at which time the Defendant was present and was represented by counsel, Tina

M. Fryling. Esq. The Commonwealth was represented by the District Attorney D, Shawn

White. Based upon the lestimoni and evidence presented at the hearing and a review of the

record, the Court enters the following Opinion.

        On September 14, 2014, aLler a four day jury trial, the Petitioner was found guilty

at the above-captioned case of: Count 1, Third Degree Murder, in violation of 18 Pa. C.S ,A,

§2502 (c), a Felony of the ftrsL degree. On December 9, 2014, the Petitioner was sentenced

to a term of imprisonment in a state institution of the deparbnent of corrections for a

minimum of which shall be two hundred ten (210) months the maximum of which shall be

four hundred eighty (480) months with credit for 280 days of time served. The sentence

was to run consecutively to any and all sentences previously imposed on the Petitioner.

The Court stnted that "thls is a standard range sentence consistent with the recommendation

made by the Commonwealth."


                                             1
                                                                                                               f&IVV"'f   v .....




 On June 29,.2015,        the Defendant tlmcly1 filed her Post-Sentence Motion in the above-

 captioned case. Iri her Motion for Post-Sentence Relief the Petitioner raises the following

 issues:
           (1) Petitibrter challenges the sufficiency of the evidence in this case,

           (2) Petitioner challenges the sentence she received in this case, and

           (3) Petitioner believes a conflict of interest existed inthe District Attorney's Office

              ·that biased the prosecution of this case.

Pet. 's Mot., 14,

           Petitioner's first contention is that the evidence presented at trial was insufficient

for a jury   to   convict her of third degree murder. In addressing the Petitioner,s challenge to

the sufficiency of the evidence, the Court notes that, "[i]n deciding a. motion challenging

s~uliciency, lhc court must evaluate the suffiojency of the evidence upon the entire trial
record. not only that contained in tbe Commonwealth's case-In-chlet" 16B West's Pa.

l'rac.1 Criminal Practice§ 30:4 (2014). An appellant is required to specify the element or
elements upon which the evidence was insufficient. Commonwealth v. G,bb.r, 981 A.2d

2741 282 (Pa. Super. 2009). The elements for Third Deg1iee Murder as explained to the jury

in the jury instructions in this case are that the Commonwealth must establish beyond a

reasonable doubt Otat, "First, that Lloyd Shontz is dead; Second, thnt the defendant killed

him; and 7'hird,.that the defendant did so with malice. The word "malice" as I nm using it

has a special legal meaning. It docs not mean simply hatred, spite, or 111-wU!. Malice is a




1 Defen.dent had been granted several extensions of her filing deadline for the Post-Sentence Motion for the
appointment of conflict <:ounsel and fur the completion of the Jucy tri11I tnmscript6.
                                                      2
                                                                                                 ~vv,:,1   v.1.1.




 shorthand way of rcforrlng to particular mental states that the law regards as being bad

enough to make a kiUi.ng murder." Tina. Shaffer Jury Instructtons. See also 18 Pa. C.S.A.

 § 2502; Commonwealth v,      Dunphy, 20 A.3d 12l 5. Petitioner generally challenges the
sufficiency of all of the clements of third degree   murder, hut more specifically focuses her

argument around the assertion that the Commonwealth failed to prove beyond a reasonable

doubt that Ms. Shaffer acted with-malice. Dcf. 's Mot., Pm·agraph 8. "The Commonwealth

was required to prove that Ms. Shaffer took action while consciously disregarding the most

serious risk she was creating and that by her disregard of that tiiJk, Ms. Shaffer

demonstrated her extreme indifference to the value of human life. The killing would also

be wtd1 malice if Ms. Shaffer acted with a wickedness of disposition, hardness of heart,
cruelty, recklessness of consequence, and a mlnd regardless of social duty indicating an

unjustified disregard for the probability of death or great bodily ha.rm and an extreme

indifference to the value of human life." Def.'s Mot. Paregraph 7~ see also Pennsylvania

Standard Criminal Jury Instructions,

        In deciding whether a jury determination may stand, a trial court employs the same

standard. ofrevlew as would be exercised by an appellate court deciding the same question.

Higgenbotham v. Keene Corp., 23 PhHa. Co. R.ptr 589, 591 (Phila, Cty Ct. Com, Pl. 1991)
(citing Rocker v.- Harvey Co., 535 A.2d 1136 (Pa. Super. 1988)). The appellate standard of

review for sufficiency of the evidence) in tum, is well settled:

       The standai'd. we apply when reviewing the suflicienoy of the evidence is whether
       viewing all the _evidence admitted at trial in the light most favorable to the verdict
       winner, there is sufficient evidence to enable the fact-finder to find every element
       of the crime beyond a reasonable doubt, In applying the above test, we may not
       weigh the evidence and substitute our judgment for lhe fact-finder. In addition, we
       note that the facts and circumstances established by the Commonwealth need not
       preclude every possibility of innocence. Any doubts regarding a defe.ndant's guilt
                                              3
     10/21/2015 WED 15139    FAX 814 432 3890      Ju~gee

I,




                      may be resolved by the fact-finder unless the evidence is so weak and inconclusive
                      that as _a matter of.Jaw no probability of fact may be drawn from the combined
                       circumstances. The Commonwealth may sustain its burden of proving every
                      element of the crime beyond a reasonable doubt by means of wholly circumstantial
                       evidence. Moreover, in applying the above test, the entite record must be evaluated
                      and '"l evidence ROtua.lly recei vcd muet be consldered, Finally, the trier off act while
                      passing upon the credlbiltty of wlteeaaes and the weight of the evidence produced
                      is free to believe all, part or none of the evidence. Furthermore, when reviewing a
                      sufficiency claim, our Court is required to give the prosecution the benefit of all
                    · reasonable inferences to be drawn from the evidence.                           ·
                      However, the inferences must flow from facts and circumstances proven in the
                      record, and must be of such volume and quality as to overcome the presumption of
                      innocence and satisfy the jury of an accused's guilt beyond a. reasonable doubt. The
                      triei: of fact cannot base a conviction on conjecture and speculation and a verdict
                      which is premised on suspicion will fail even unde1' the limited scrutiny of appellate
                      review.

              Commonwealth v. Gibbs, 981 A.2d 274 (Pa. Super. 2009} (citations omitted),

                      The Petitioner argues that the evidence presented at trial did not prove that she acted

              with malice. Malice is the characteristic which distinguishes murders from other types of

              unlawful killings. Commonwealth v. Yuknavtch. 295 A.2d 290 (Pa, 1972). In the context

              of murder in the third degree, malice consists of a wickedness of dlsposition, a hardness of

              heart, cruelty, reckless disregard of consequences, and a mind acting without regard r-0r

              social duty. Commonwealth -v. Pigg, 571 A.2d 438, 440-42 (Pa. Super 1990) (citing

              Commonwealth v. Drum, SS Pa. 9 (Pa. 1868)). There need not be any particular person

              toward whom injury was intended. Pigg, 511 A.2d at 441. That malice may be inferred

              from the use of a deadly weapon is "well established." Id. (citing Commonwealth v.

              Hi~hcliffe, 388 A.2d 1068 (Pa. 1978)).
                     Here, there exists abundant support for the jury's finding that Petitioner acted with

              malice ln the killing of Lloyd Shontz. For instance, the evidence suggests that Petitioner

              aimed a firearm to Mr. Shontz's chest, held the firearm in place either with or without the

                                                             4
                                                                                                 ..,,.   ..... , ·--


aid of Mr. Shontz, all while Mr. Shontz urged her to pull the tdgger (sincerely or

otherwise), Trial Transcript Day 4, 51MS9. This, without more, leaves the Court satisfied

that the evidence allowed the jury    to find beyond a reasonable   doubt that the petitioner

acted with malice. Gibbs, 981 A.2d at 274; S?l A,2d at 440-42. As such, the petitioner's

first issue In the Motion fot Post-Sentence Relief will be deemed merltless,

        Petitioner's second contention is that her sentence was immifestly excessive and

clearly unreasonable, Petitioner received a standard range sentence but believes she should

have received a mitigated range sentence as it "would have served the same purposes of

rehabilitation and incapacitationi..along with the protection of the community." Pel.'s Mot.,



        It is noted at the outset that "sentencing is a matter vested in the sound dtscretlon

of the sentencing judge, whose judgment wHJ not be disturbed absent an abuse of

discretion. CommatIWealth v. Peny, 883 A.2d 599, 602 (Pa. Super. 2005), "A challenge

toan alleged excessive sentence is a challenge to the discretionary aspects of a sentence."

CommoY1W~alfh v, Pennington, 751 A.2d 212, 215 (Pa. Super. 2000). Before a defendant
is entitled to a review of the discretionary aspects of his sentence, she must show that there

is a. substantial question that his sentence is not appropriate under the Sentencing Code,

Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa.Super,2003), The Superior Court has
articulated the following four-part test:

       [W]e conduct a four·plU't analysis to determine (1) whether appellant has tiled a
       timely notice of appeal, see Pa. R.A.P. 902 and 903; (2) whether the issue was
       properly preserved at sentencing or in a motion to reconsider and modify sentence,
       see Pa. R. Crim. P. [720]; (3) whether appellant's bricfhas a fatal defect, Pa. R.A.P,
       2119 (t); and (4) whether there is a substantial question that the sentence appealed
       from is not appropriate under the Sentencing Code, 42 Pa. C.S.A. §9781 (b),

                                              5
Commonwealth v, Evans, 901 A.2d 528, 533 (Pa. Super. 2006), appeal denied, 909 A,2d

303 (Pa, 2006)(intemal citi,tions omitted), A substantial question occurs

        011ly when the appellant advances a colorable argument that the sentencing judge's
        actions were either: (1) inconsistent with a specific provision of the S¢ntett¢ing
        Code; or (2) contrary to the fundamental norms which underlie the sentencing
        precess," Commonwealth v.Sierra, 752 A.2d 910, (Pa. Super. 2000). Generally,
        "[a]n allegation that the sentencing court failed to consider certain mitigirting
        factors generally does not necessarily raise a substantial question. Commonwealth
        v. McNabb, 819 A,2d 54, 57 (Pa. Super. 2003). Accord Commonwealth v. Wellor,
        731 A,2d 152, 155 (Pa. Super. 1999)(reiterating allegation that sentencing court
        "failed to consider" or "did not adequately consider>' certain factors generally does
        not raise a substantial question).                                          ·

Commonwealth v, Moury, 992 A,2d al 171.

       The Superior Court of P~nnsylvania has stated that in exercising its discretion at

sentencing, "the trial court must consider the character of the defendant and the particular

circumstances ot' the offense ... , and must impose a sentence that is consistent with the

protection of the public,   the jp:avity of the offense, and the rehabilitative   needs of the

defendant," Cnnmwnweath v. Guth, 735 A.2d 709, 711 (Pa. Super, 1999). More
specifically, "the court should refer lo the defendant's prior criminal record, his age,

personal cha.ractel'istlcs and his potential for rehabilitation," Commonwealth v. Griffin, R04

A.2d 1, 10 (Pa. Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545

U.S. 1148 (2005). When the "sentencing court had the benefit of a presentence

investigation report ("PSI'), we can assume the sentencing court 'was aware of relevant

information regarding defendant's character and weighed those considerations along with

mitigating statutory factors.?' Commor1Wealth v. Moury, 992 A.2d at 171 (citations
omitted). Additionally, "where a. sentence is within the standard range of the gnidellnes,

Pennsylvania law views the sentence as appropriate under the Sentencing Code." Id. at

                                              6
                                                                                                   wvv   fl   ......




 171 (emphasis added). A "claim.of excessiveness may raise a. substantial question where

 an appellant provides a plausible argument that the sentence is contrary to the Sentencing

 Code or the fundamental      norms underlying the sentencing process." Commonwealth v.
Mouzon. 812 A.2~ 617 (Pa. 2002).

  In the instant matter, immediately before sentencing the Defendant, this Court stated on

the record the factors. that were considered in imposing the foregoing sentence.

Speciflcally, this Court stated:

          In imposing sentence in thi~ case, we have considered the Defendant's age, her
           education, the condition of her health, family history, and all the other information
           contained in the Pre-Sentence Investigation report. The Court has considered the
           statement made at sentencing by the victim's sister, Dolly Shontz, and the
           photographs that were submitted to the Court at sentencing, The Court has (]
           considered the {] statements made by defense counsel at l;len~ncing and the []
         · recommendation made by the Commonwealth at sentencing. The Court considered
           the Venango Coimty Pris_pn Inmate Evaluation Report. The Court has considered
           the circumstances surrounding thi~ offense. This judge sat as tho trial judge in this
           case. The Court has considered the sentencing guidelines and all other relevant
           factors.

Semenoe Hearing Transcript, 32-33. rt is clear that the Court considered mruiy factors,
including both the type of crime and the Defendant's history. Moreover. the Petitioner

received a standard range sentence> and the Petitioner has not raised a substantial question

that the sentence was not appropriate under the sentencing code. Based on the foregoing,

the sentence imposed by the Court is supported by sufficient explanation> ls not

unreasonable> and is consistent with the protection of the public, the gravity of the offense,

and the rehabilitative needs of tho Petitioner, TherefOl' Petitioner's second issue is without

meiit.

         Petitioner's third contention is that the district of attorney who prosecuted this case

had a conflict of interest and should have recused his office. Petitioner asserts that "the
                                                7
1012112010 WED 15139     FAX 814 43~ 3890     Juagee                                                       IIZJUUHUJ..l.


                        ' .·



          District Attorney · who prosecuted her, D, Shawn White, Esq. had previously represented

          her in his private law practice and that the two had previously had a relationship. Thus, Ms.

          Shaffer requests a new trial prosecuted by an individunl who has had no personal
          relatiot1ship wi.th her," Petr's Mot. Paragraph 11.

                 At the hearing, Distri.ct Attorney White admitted to having represented the

         petitioner fur one case proceeding held in 2003, Attorney White submitted billing invoices

          and copies of envelopes showing that Peli tioner still has an outstanding legal bill tl,at she
         owes him. The bill is for $1500.00. Attorney White denied having a personal romantic

         relationship with the Petitioner.

                 Prosecutors are required to avoid the appearance or reality of a conflict of interest

         with respect to their official responsibilities. Comm(Jnwealth v. Dunlap, 377 A.2d 91S, (Pa.

         1997); Rules of Professional Responsibility, 1.7, 1.8, 1.9. A "prosecutlon 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." Commonwealth v. Eskridge, 604 A.2d 700, 702 (Pa, 1992). Mere

         allegations of a conflict of interest, do not require replacement of a. district attorney. See

         Commonwealth v. Mulhollancli 702 A.2d 1027, 1037 (Pa. 1997).

                 One such disqualifying conflict can arise where the distrio] auorncy's

         representation of the Commonwealth has some bearing          on   his own pecuniary interest.

         Commonwealth v. Stqfford, 749 A.2d 489~ 494 (Pa. Super. 2000) The Superior Court has

         held that "an impermissible conflict exists where the district attomey h~s a financial interest

         in obtaintng defendant's conviction." Id. (citi.ngE.5'krldge, 604 A.2d at 701). In Eskridge, a

         conflict of interest was found where the district attorney's law firm was concurrently
                                                       8
                                                                                                  W.,VV#'f   V.A, ...




 representing the accident vlcums in a personal injury suit. 604 A.2d at 701. Where the

prosecutor's prior legal representations do not presently impact the atto:rney>s pocketbook,

there is a greater reluctance to find a disqualifyin~ conflict. See Commonwealth v. Jermyn,
709 A.2d 849, 860 (Pa. 1998).(finding no actual conflict where prosecutor resigned his

executor's duties of'vlctim's estate before prosecuting defendant),

        A conflict of interest may also arise where the district attorney has a personal
interest in the· prosecution, Slajfotd, 749 A.2d at 494-95; See also Commonwealth v.

Balenger, 704 A.2d 1385, 1386 (Pa.Super.1997) (granting a now trial where the prosecutor
was involved in a romantic relationship with the defendant's wife). "Mere animosity,"

without more, is insufficient proof that the prosecutor has a conflict of interest such that he

ts disqualified from advocating f9r the defendant's conviction. Stqffbtd, 749 A.2d at 495.

       As did the Court. in Stafford, we hold here that "the district attorney had

no pecur,iary or personal interest in seeing appellant prosecuted[,]" Id. With respect to a.

potential financial conflict, we think the present case is more like Jermyn and less like
                                                                 '
Ksktidge. The Court notes that Attorney White had ceased private practice altogether for
several years prior to his involvement in the petittoner's above-captioned crimtnal trial. As

such, the Court cannot readily detect any present economic motivatlon he would have had

in prosecuting the petitioner. Moreover, it is difficult to ascertain how Mr. White's

financial interest with respect to Ms. Shaffer, if indeed any such lntereet existed, would

have been furthered "in obtaining the defendant's conviction." Staffotd, 749 A.2d at 494.

       Additionally, we find no disqualifying personal conflict of interest on thepart of

'the District Attorney. Mr. \Vhiterepresented the Defendant only very briefly and almost
twelve years ago. There was no support for the notion that Mr. White used confidential
                                              9
10/21/2015       WBD 1$139     FAX   814 432 3890 JUd!JH ·                                                                    lt:JU.I.Vf   VLJ.




             information learned during the course of the prior representation such that the Petitioner's

             trial was unfair. 2 While the. Petitioner does perhaps owe Mr. White $ t 500, the Court finds
                                                   ~                                           .
             that this is not so large a bill that we should infer the District Attorney's prosecution was a
             product of personal bitterness. Moreover, we emphastze that proof of "mere animosity''

             will not do, Stafford, 749 A.2d       at 494. The Court finds that Petitioner's       testimony asserting

             an intimate romantic relationship between herself and District Attorney White is not
             credible, Furthermore, her assertion that they were at one time intimate, even if believed,
             would not rise to the level of the conflict described in Balenger. While best practices might

             have dictated that the District Attorney refer this case to the Attorney General's office for

             prosecution, under these particular circumstances no actual conflict of interest existed.

             Thus the Petitioner's third contention will be denied.

                      The Court will issue an appropriate Order.




             cc:      DA                   .
                      TlnaM. Fryling, Esq. (fax 814·474-4680)
                      VCJ
                      Sheriff




             2 At the hearlns, Petitioner indicated that A.ttorney White during the trial was "coming on strong'' by making
             references to the mot that the victim wu Ms. Shatl'er's "sugar daddy." As Mr. Whito toslitied at the hearing.
             his use of the phrase "$ugar daddy" stemmed solely from his playing tum-about with defense counsel's own
             '1$B of that phrase as part oftbeir defense strategy. It had virlually nothing to do with Mr. WhlW$ previous
             representatlon of Ms. Shaffer,

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