Appeal from the March 15, 1985 Superior Court Order, at No. 3081, Philadelphia 1983, Affirming the Oct. 20, 1983 Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Granting Defendant a New Trial as of INformation nos. 1910-1913, of Sept. Sessions, 1978.
Gaele McLaughlin Barthold, Deputy Dist. Atty., for appellant.
O. Robert Silverstein, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., joins this opinion and files a concurring opinion.
This is an appeal from a memorandum opinion and per curiam order of the Superior Court 343 Pa. Super. 612, 494 A.2d 482, which affirmed an order of the Philadelphia Court of Common Pleas granting a new trial to the appellee, Christina Lobel, after Lobel had been convicted of two counts of theft by deception and two counts of criminal conspiracy. The basis for granting the new trial was a determination that trial counsel had been ineffective in absenting himself, and Lobel, from the courtroom during a portion of trial. The circumstances surrounding the claim of trial counsel's ineffectiveness were the following.
In a non-jury proceeding, Lobel and a co-defendant, Peter Candelori, were jointly tried on a number of charges arising from a fraudulent charitable solicitation scheme which Lobel and Candelori operated. Lobel was charged with two counts of theft by deception and two counts of criminal conspiracy. Candelori was charged with multiple counts of theft by deception, multiple counts of criminal conspiracy, and certain other charges related to the scheme. During their joint trial, Lobel and Candelori were shown by the Commonwealth to have utilized so-called "volunteers," who
were in fact paid for their services, to solicit for a ficticious charity.
Specifically, Candelori held himself out as "Bishop" of the "Holy Orthodox Christian Church," having purchased the title of "Bishop" from an out-of-state mail order firm. As such, Candelori controlled a guild of street solicitors, comprised mainly of handicapped persons, who called themselves the "Salvation Mission Army Workers." To these solicitors Candelori issued identification certificates, which the solicitors used to present an appearance of legitimacy, as the certificates indicated that the solicitations were being conducted on behalf of a church-related tax exempt organization. Candelori's solicitors were permitted to retain 60% of their collections, with the remaining 40% passing into Candelori's control. The so-called "church" over which Candelori presided, and for which the solicitors were ostensibly collecting funds, was a fictitious entity. It engaged in no charitable activities, and it listed as its address various private homes, an answering service, and a subsequently demolished building.
The solicitors working under Lobel's supervision were driven by Lobel to various shopping centers where they collected money in cans labeled "Salvation Mission Workers" and "Help the Handicapped." Lobel instructed the solicitors to say, if asked, that they were working for the Salvation Army. Lobel's solicitors were furnished with identification certificates, bearing "Bishop" Candelori's name, indicating that the solicitors were collecting for the "Salvation Mission Army Workers." Lobel's financial arrangement with the solicitors differed from Candelori's to the extent that Lobel retained 50% of all moneys collected, as opposed to the 40% that Candelori retained. Lobel also paid Candelori $3.00 per day for each collection can used. In addition, Lobel herself solicited and collected funds for the "Salvation Mission Army."
At trial, after evidence of the foregoing facts had been introduced, Lobel's trial counsel requested that the court excuse him, and Lobel, from attending the immediately
ensuing portion of the trial, because, according to the prosecutor, the remaining testimony to be presented in furtherance of the Commonwealth's case against Candelori would not make reference to Lobel. Upon the prosecutor's assurance that the upcoming testimony would refer only to Candelori, the court granted the request, whereupon Lobel and her trial counsel left the courtroom.
During this absence of Lobel and her trial counsel from the courtroom, the testimony of two witnesses was presented. One of these witnesses testified that he had worked for Candelori as a solicitor for the Salvation Mission Army Workers, and he further testified, as had earlier witnesses, that he had not observed any charitable or religious activities that could be attributed to the Salvation Mission Army. The witness stated that he recognized one of the identification certificates, of the type described supra., as being one that had been issued to him by Candelori. Earlier in the trial, before Lobel and her trial counsel left the courtroom, other solicitors had testified that this particular certificate, which included on its face the name of "Bishop" Candelori, was identical to the ones that they utilized while ...