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filed: July 31, 1986.


Appeal from the Judgment of Sentence of February 8, 1985, in the Court of Common Pleas of Potter County, Criminal Division, at No. 85 of 1983 (No. 00242 Pittsburgh, 1985). Appeal from the Judgment of Sentence of February 8, 1985, in the Court of Common Pleas of Potter County, Criminal Division, at No. 84 of 1983 (No. 00244 Pittsburgh, 1985).


Joseph A. Katarincic, Pittsburgh, for appellant.

William A. Hebe, Wellsboro, for appellee.

Andrew F. Schneider, Langhorne, amicus curiae.

Wieand, Del Sole and Hester, JJ.

Author: Hester

[ 356 Pa. Super. Page 8]

Two criminal defense attorneys have appealed from convictions for hindering prosecution and tampering with evidence arising from their conduct while representing a defendant in a murder trial. Appellants George and Walter Stenhach were young public defenders appointed to represent Richard Buchanan, a man charged with first degree murder. Following Buchanan's directions, appellants recovered a rifle stock used in the homicide. Allegedly believing that disclosure of the rifle stock would be legally and ethically prohibited, appellants did not deliver it to the prosecutor until ordered to do so by the court during the prosecution's case. After Buchanan's conviction of third degree murder, appellants were charged with hindering prosecution, 18 Pa.C.S. § 5105(a)(3), tampering with physical evidence, § 4910(1), criminal conspiracy, § 903, and criminal solicitation, § 902. A jury found both appellants guilty of hindering prosecution, a third degree felony, and tampering, a second degree misdemeanor. In addition, George was convicted of solicitation, and Walter of conspiracy. Each was sentenced to twelve months probation and a fine of $750.

Their appeal raises questions relating to the interplay of the fifth and sixth amendments to the United States Constitution, the statutory attorney-client privilege, and the Pennsylvania Code of Professional Responsibility, in which appellants challenge their duty to deliver evidence to the prosecution. Appellants also raise a due process challenge to the criminal statutes which prohibit hindering prosecution and tampering with evidence when these statutes are applied to criminal defense attorneys, claiming the statutes are unconstitutionally overbroad; the statutory defense of

[ 356 Pa. Super. Page 9]

    justification; and allegations of numerous trial errors in evidentiary and other rulings. Amicus curiae briefs by the Pennsylvania Trial Lawyers Association, the National Association of Criminal Defense Lawyers and the Public Defender Association of Pennsylvania all support reversal of the judgments of sentence.

We reject appellants' argument that their retention of physical evidence was proper under existing law. We hold, however, that the statutes under which they were convicted are unconstitutionally overbroad as applied to criminal defense attorneys. Accordingly, we do not address appellants' claims of trial error, but order appellants discharged.


In March, 1982, Theodore Young was killed in Potter County. The following day Richard Buchanan and an accomplice were arrested and charged with first degree murder. Appellant George Stenhach, part-time Public Defender of Potter County, undertook Buchanan's defense immediately. He petitioned for appointment of an investigator to assist in Buchanan's defense, and former police officer Daniel Weidner was appointed as Buchanan's investigator. During a confidential conference among Stenhach, Weidner and Buchanan, Buchanan described the death of Theodore Young. He said that Young had attacked him with two knives and that during the attack, Young had died after he was shot, hit by Buchanan's car, then struck by Buchanan's rifle, causing the stock of the rifle to break off. Buchanan and his accomplice had then disposed of the weapons and other items relating to Young's death. During the conference, Weidner and Buchanan prepared a map identifying the location of some of these items.

Appellant Walter Stenhach, George's younger brother, was practicing law in partnership with George, and assisted in Buchanan's defense. Appellants George and Walter Stenhach had graduated from law school in 1978 and 1980, respectively, and had been admitted to practice in Pennsylvania in 1979 and 1981. They discussed the information received from Buchanan, and decided to pursue the theory

[ 356 Pa. Super. Page 10]

    of self-defense and to attempt to gather evidence supporting that theory. Accordingly, they ordered Weidner to search for the items Buchanan had described, and to retrieve as many as he could find.

On the same day, Weidner found the broken rifle stock and brought it back to appellants' office. He did not find the barrel, which was eventually discovered by the prosecutor and introduced into evidence at Buchanan's trial. Weidner was unable to locate the knives allegedly used by the victim, and no knives were ever found. When Weidner delivered the rifle stock to appellants, they stored it inside a paper bag in a desk drawer in their office.

Weidner had been a police officer for twenty years and was performing his first defense investigation in the Buchanan case. He expressed his concern as many as twenty times during the five months before Buchanan's trial that appellants were violating the law by withholding the rifle stock. Based on their research of case law, the Constitution, Pennsylvania statutes and the Pennsylvania Code of Professional Responsibility, appellants repeatedly told Weidner that the weapon was protected by the attorney-client privilege and that Weidner and appellants had a legal duty to preserve Buchanan's confidential communications which led to discovery of the weapon.

On the fourth day of Buchanan's murder trial, during an in-camera hearing, the prosecutor questioned Weidner about the rifle stock. Appellants objected on the ground that an answer would violate the attorney-client privilege. The trial judge overruled the objection, holding the privilege inapplicable to physical evidence, and ordered Weidner to answer. After Weidner testified how he had located and retrieved the rifle stock, the judge ordered its production, and appellants brought it from their office. The stock was not entered into evidence during Buchanan's trial by the prosecution or by the defense.

After Buchanan's conviction, the prosecutor, District Attorney Leber, charged appellants with hindering prosecution and tampering with evidence for withholding the rifle

[ 356 Pa. Super. Page 11]

    stock. Due to Leber's role as a prospective witness against appellants, a prosecutor was appointed by the state attorney general's office.

At appellants' trial, the primary witnesses for the Commonwealth were Buchanan, Leber and Weidner. Due to Buchanan's invocation of his fifth amendment privilege while his conviction was on direct appeal, the trial court allowed the transcript of Buchanan's testimony in his murder trial to be read into evidence against appellants to establish the evidentiary nature of the rifle stock in question. Leber testified concerning its concealment, its production, and the effect on the prosecution of Buchanan. Weidner testified about discovery and seizure of the evidence as well as appellants' acts and statements regarding continuing retention of the weapon after its discovery.

Appellants in turn testified about the various authorities which allegedly justified their belief that they were obligated to retain the rifle stock to protect their client. They attempted to offer the expert testimony of law professor John Burkoff to establish a justification defense based on the ethical standards applicable to attorney conduct. The trial judge did not permit Burkoff to testify, nor did he instruct the jury on the defense of justification.

Following conviction and sentencing, this appeal was filed. Appellants argue four issues. First, they challenge the trial court's interpretation of the statutes as requiring production of the physical evidence without a court order. Second, they argue they were denied due process of law in that the hindering prosecution and evidence tampering statutes are unconstitutionally vague or overbroad as applied to defense attorneys when literal compliance would require them to violate their statutory, ethical and constitutional duties to their clients. Third, they claim the trial court erred in refusing to permit presentation of a justification defense. Fourth, they argue that the trial court committed reversible error by: (a) preventing defense counsel from fully cross-examining key prosecution witnesses; (b) giving the jury erroneous instructions; (c) exhibiting to the jury a

[ 356 Pa. Super. Page 12]

    predisposition against appellants; (d) allowing the jury to consider irrelevant inflammatory evidence; (e) allowing the prosecutor to make emotional appeals to the jury based on inflammatory hypotheticals not related to the facts in evidence; and (f) ignoring the weight of the evidence establishing innocence.

The briefs of amicus curiae concentrate on the first two issues. We will address any independent points raised by amicus curiae where they relate to appellants' arguments.

In reviewing the first two arguments, we have considered various public policies and concerns which underlie the rules of law at conflict in this case. We recognize the wider implications of this appeal, the circumstances which have motivated amicus curiae to address the court. Appellants' convictions carry penalties much greater than the criminal sentences: attorneys convicted of felonies are routinely prohibited from practicing law. In addition, the criminal defense bar appears to be confused by contradictory standards pertaining to their practice and by the lack of judicial guidance in this area. Accordingly, we shall first identify the policies implicated by the facts of this case.


Appellants, the Commonwealth and amicus curiae all remind us of public policies and fundamental rights we should consider. Although our decision is made within the context of these policies, we summarize them briefly because they do not directly determine our decision.

Appellants urge us to give deepest consideration to the constitutional fifth and sixth amendment rights of criminal defendants, their clients. Citizens facing criminal charges must be able to obtain legal counsel free of the fear that their confidential communications will be used as evidence against them. The right not to "be compelled in any criminal case to be a witness against himself" would be empty if defense counsel, repeating information provided by a client, acted as a witness against him. The Pennsylvania Constitution, Article I, § 9, states the accused's right against self-incrimination even more broadly than the federal

[ 356 Pa. Super. Page 13]

Bill of Rights, stating that "he cannot be compelled to give evidence against himself."

The sixth amendment provides the right to assistance of counsel. This means effective assistance of counsel, implicating a host of constitutional rights. An accused is entitled to representation by a learned professional who knows what is meant by "due process of law," who will protect his client's rights against unreasonable searches and seizures, self-incrimination and double jeopardy and who will enforce his client's rights to the equal protection of the laws, to a speedy trial by an impartial jury and to confront witnesses against him. More specifically, effective assistance of counsel includes the requirement that counsel investigate the client's claims and use the results of investigation in defense of the accused. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976); Commonwealth v. Manhart, 349 Pa. Super. 552, 503 A.2d 986 (1986).

Closely related are the rights underlying portions of the Pennsylvania Code of Professional Responsibility. An accused is entitled to an attorney who will represent him "zealously within the bounds of the law" and who will "preserve the confidences and secrets of a client." Canons 7 and 4 of the Code. These ethical obligations of the lawyer clearly relate to the constitutional rights mentioned above, yet are not themselves to be considered as substantive law in the context of criminal proceedings, serving instead as a regulatory guide and basis for disciplinary action within the legal profession. Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984). The attorney-client privilege is codified at 42 Pa.C.S. § 5916. It provides that defense counsel "shall not be competent or permitted to testify to confidential communications made to him by his client."

Most nebulous of the policies is our concern for "the administration of justice." Commonwealth v. Maguigan, 323 Pa. Super. 317, 470 A.2d 611 (1983). Although the attorney-client privilege and constitutional rights such as the right against self-incrimination are "sometimes characterized

[ 356 Pa. Super. Page 14]

    as protecting someone who has violated the law, . . . this reveals a fundamental misconception. The privilege is to protect, not the guilty, but the administration of justice. '[T]he theory . . . is that the detriment to justice from a power to shut off inquiry to pertinent facts in court, will be outweighed by the benefits to justice (not to the client) from a franker disclosure in the lawyer's office.'" Id., 323 Pa. Superior Ct. at 329, 470 A.2d at 616, quoting McCormick on Evidence 175 (2d ed.1972). The Pennsylvania Supreme Court has thus stated that "the damage to the administration of justice occurs when the sanctity of ...

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