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COMMONWEALTH v. DUNLAP

decided: August 17, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
MARSHALL DUNLAP, APPELLANT



COUNSEL

Alfred V. Papa, William M. Panella, New Castle, for appellant.

Paul W. Johnson, Asst. Dist. Atty., New Castle, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Roberts, J., filed an opinion in support of reversal in which Pomeroy and Manderino, JJ., joined.

Author: Per Curiam

[ 474 Pa. Page 156]

OPINION

The Court being equally divided, the order of the Superior Court is affirmed.

Opinion IN SUPPORT OF REVERSAL

ROBERTS, Justice.

I dissent. The district attorney who prosecuted this case also represented the victim in a civil suit arising out of the same transaction. The majority affirms appellant's conviction even though there was a conflict of interest because

[ 474 Pa. Page 157]

    appellant did not establish actual prejudice. I cannot agree. I believe that where a conflict of interest arises on the part of a district attorney, the existence of such a conflict should invalidate the conviction, even though no actual prejudice has been established. Such a rule is necessary in light of the substantial and sensitive responsibilities and vast discretion which are entrusted to the district attorney.

I

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.

After the jury returned the verdicts, but before argument on post-trial motions, the district attorney disclosed in open court that he represented the victim in civil proceedings arising out of the stabbing which was the basis for the criminal prosecution. Appellant contended that the district attorney had a conflict of interest which denied him a fair trial. The trial court ruled there was no actual conflict between the prosecution of appellant's case and the representation of the victim in the civil suit and denied appellant's motion for a new trial. Appellant was sentenced to two to five years imprisonment on one charge and one and one-half to three years imprisonment on another charge, to run concurrently. The Superior Court affirmed judgment of sentence. Commonwealth v. Dunlap, 233 Pa. Super. 38, 335 A.2d 364 (1975) (5-2) (Judge Hoffman filed a dissenting opinion joined by Spaeth, J.).

We granted allocatur and issued a per curiam order remanding the case to the trial court for a hearing to determine whether appellant suffered actual prejudice as a result of the district attorney's dual representation.*fn1 This Court retained jurisdiction pending the remand.

[ 474 Pa. Page 158]

On remand, the trial court made the following findings. The district attorney was assigned to this case on February 7, 1973, and had exclusive control over the prosecution. His representation of the victim began on August 29, 1973, when the victim's counsel in Pittsburgh referred the civil case to the district attorney. The civil action involved the same evidence, the same witnesses and many of the same legal and factual issues. The district attorney decided not to name appellant as a defendant in the civil action because he concluded that a judgment against appellant would be worthless. Instead, he decided to sue the owner of the bar where the stabbing took place. The district attorney did not disclose to the prosecution witnesses that he represented the victim in the civil action. On August 28, 1974, the district attorney voluntarily withdrew from the civil case.

The trial court concluded that the district attorney's dual representation did not result in an actual conflict of interest "in the sense that his obligation to the Commonwealth in the criminal prosecution was in any manner inconsistent with his obligation to the victim in the civil prosecution. Nor was his obligation to the victim in the civil action actually inconsistent in any respect with his obligations to the Commonwealth in the criminal prosecution of the appellant." It appears that the trial court concluded that appellant suffered no actual prejudice as a result of the district attorney's dual representation. A conclusion that there was no conflict of interest would clearly be erroneous. A district attorney's professional responsibility is to seek justice -- to protect the innocent as well as to convict the guilty. A private attorney, however, has an obligation to zealously represent his client and to seek to resolve all questions in favor of his client. Because the professional responsibilities of a district attorney and a private attorney differ, anytime a district attorney represents the victim in a civil suit at the same

[ 474 Pa. Page 159]

    time that he is prosecuting the defendant, a conflict ...


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