J-S71036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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