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COMMONWEALTH v. DUNLAP (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
DUNLAP, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lawrence County, Nos. 967 to 970, inclusive of 1972, in case of Commonwealth of Pennsylvania v. Marshall Dunlap.

COUNSEL

Alfred V. Papa, for appellant.

Paul W. Johnson, Assistant District Attorney, and Donald E. Williams, District Attorney, for Commonwealth, appellee.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.

Author: Jacobs

[ 233 Pa. Super. Page 40]

Appellant was convicted by a jury of assault, assault and battery, aggravated assault and battery, assault with intent to maim, assault with intent to kill, and attempt with intent to kill. The crimes arose out of the stabbing of a Donald L. Groves in a bar located in Lawrence County. Several issues are raised on appeal, but only two are preserved for our consideration.*fn1

The first issue we will consider is whether appellant was deprived of a fair trial because the prosecuting attorney represented the victim of the crime in a personal injury action arising out of the same facts as the criminal prosecution against the owner of the bar where the stabbing took place. These facts were voluntarily revealed after the verdict but before argument on the post-trial motions by the Assistant District Attorney who prosecuted the case. After this issue was argued, the lower court found that no prejudice resulted to appellant and dismissed the argument. We agree and refuse to grant a new trial on that basis.

This Court has had occasion to state that "[a] district attorney holds an office of unusual responsibility, and he must exercise his duties with complete impartiality." Commonwealth v. Wiggins, 231 Pa. Superior Ct. 71, 76, 328 A.2d 520, 522 (1974), quoting Commonwealth v. Toth, 455 Pa. 154, 158, 314 A.2d 275, 277 (1974). The A.B.A. Standards For Criminal Justice, Standards Relating To The Prosecution Function, § 1.2 (Approved Draft, 1971) have also recognized this responsibility and have added that "[a] prosecutor should

[ 233 Pa. Super. Page 41]

    avoid the appearance or reality of a conflict of interest with respect to his official duties."

Although the present situation is not listed as an example of a conflict of interest under § 1.2 of the A.B.A. Standards, we realize that a conflict of interest may arise when a prosecutor attempts to represent both the Commonwealth and the victim of the crime in actions arising out of the same set of facts as the criminal prosecution.

However, the A.B.A. Standards in § 1.1 are careful to caution that "[t]hese standards are intended as guides for the conduct of lawyers and as the basis for disciplinary action, not as criteria for the judicial evaluation of prosecutorial misconduct to determine the validity of a conviction." (emphasis added). Similarly, this Court in Commonwealth v. Wiggins, supra, did not condone the conduct of the prosecutor in describing to the jury the defendant as a "dangerous man;" nevertheless, we refused to overturn the conviction on the basis that the remark did not rise to prejudicial dimensions.

Appellant asks this Court to reverse his conviction because of the possibility of a conflict of interest regardless of the fact that no prejudice has been demonstrated therefrom. Appellant's brief speaks of possibilities of harm arising out of the present situation, but none is specifically complained of or apparent from the record. Neither party has offered any Pennsylvania authority on this specific issue and we have been unable to find any. ...


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