No. 266 SPH 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Lehigh County, Criminal Division, at No. 2265 to 2268 of 1976.
Carol K. McGinley, Assistant Public Defender, Allentown, for appellant.
James Knoll Gardner, Assistant District Attorney, Allentown, for Commonwealth, appellee.
Cercone, President Judge, and Cavanaugh, Wickersham, Watkins, Montgomery and Hoffman, JJ.
[ 281 Pa. Super. Page 393]
This appeal arises following a jury trial, from James Miller's conviction for murder of the second degree, robbery, conspiracy and possession of instruments of a crime. Having been sentenced to life in prison for the murder and a concurrent ten to twenty year term for the robbery, Miller appealed to the Supreme Court, which transferred the appeal to this court for disposition. The panel which heard this appeal originally agreed with appellant's contention that the entire District Attorney's Office of Lehigh County should have been disqualified from prosecuting appellant, and granted him a new trial. Thereafter, due to the special importance of that decision, we granted the Commonwealth's petition for reconsideration. We now reverse the
[ 281 Pa. Super. Page 394]
order of the panel and reinstate the judgment of sentence. The relevant facts are as follows.
On January 6, 1975, William Platt was appointed Chief Public Defender of Lehigh County. It was in that capacity that James Miller's case first came to his attention, because Mr. Platt reviewed and approved the written applications of Miller and his co-defendant, Scott Frankenfield, for representation by the public defender. An assistant public defender was appointed to represent Miller, and Mr. Platt represented Frankenfield.*fn1 It should be emphasized, however, that Mr. Platt personally undertook no part in Miller's defense and received no confidential information concerning Miller from his staff, or from Miller, himself.
In December of 1976, after the District Attorney of Lehigh County had been stricken by a fatal heart attack, Mr. Platt was appointed District Attorney, and thereupon arose the problem that has touched this case. Immediately upon assuming his new post, Mr. Platt informed the members of his staff in the district attorney's office that he wished to take no part in cases involving representation by the public defender's office which had arisen during his tenure as chief public defender. Unsatisfied that this action was sufficient, on December 27, 1976, the assistant public defender representing Miller filed a petition to disqualify the entire staff of the district attorney's office from participation in the Miller trial. Following a hearing, the court ordered Mr. Platt to take no part in the Miller case in any manner whatever, but refused to disqualify the assistant district attorney in charge of the case, James Knoll Gardner, or other members of the staff from participating. As stated above, Miller was subsequently convicted.
From the outset of this discussion, it must be borne in mind that the parties agree Mr. Platt faithfully abided by his self-imposed recusal, as well as the court's order, and has neither interceded in, nor imparted any information to his staff concerning this case. However, Miller contends the
[ 281 Pa. Super. Page 395]
continued prosecution of this case by members of Mr. Platt's staff creates the "appearance of impropriety" within the meaning of Disciplinary Rule 9-101 of the Code of Professional Responsibility,*fn2 and that the staff should be disqualified for the same reasons ...