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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