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Commonwealth of Pennsylvania v. Carolyn Ann King

November 26, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
CAROLYN ANN KING, APPELLANT



Appeal from the Order entered on July 23, 2010 in the Court of Common Pleas, Criminal Division of Lebanon County at No. CP-38-CR-0000898-1993

The opinion of the court was delivered by: Mr. Justice Saylor

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

SUBMITTED: November 29, 2011

OPINION

In this capital post-conviction matter, Carolyn Ann King appeals from an order denying guilt-phase relief but granting a new sentencing hearing.

This Court has previously set forth the underlying facts. Briefly, on September 15, 1993, Appellant's co-defendant Bradley Martin received a prison visitation pass that allowed him to leave the Lebanon County prison where he was incarcerated. He met Appellant, with whom he was romantically involved, and failed to return to prison as required. Instead, the two traveled to Palmyra, Lebanon County, where they called upon Guy Goodman, with whom Martin was acquainted. Goodman, who was seventy-four years old, had visited Martin in prison, identifying himself as Martin's friend.

After arriving at Goodman's home, Martin struck Goodman over the head with a vase, and the pair disabled Goodman by tightly binding his wrists, ankles, and neck. They then placed various wrappings around his head, sealing them with duct tape.

Finally, they carried Goodman into the basement, tying him even more securely and wrapping him in a bedspread, and then leaving him to suffocate while they stole his checkbook and credit card and fled in his car. During their flight, Appellant and Martin used Goodman's credit card and checks to pay their expenses.

Martin and Appellant were eventually apprehended in Arizona, at which time Appellant was advised of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and provided a statement to the authorities, inculpating herself and Martin in Goodman's death. Appellant repeated her confession to Lebanon County detectives who were investigating the incident. Martin also inculpated himself to the county detectives after waiving his Miranda rights. Shortly after Appellant was returned to Lebanon County, the common pleas court, per the Honorable Robert J. Eby, appointed

M. Jannifer Weiss, Esq., of Lebanon, Pennsylvania, to represent her. Martin was represented by separate counsel.

Appellant and Martin were tried together in the Lebanon County Court of Common Pleas before Judge Eby after their motions for severance were denied. Martin declined to testify at trial, but Appellant testified in her own behalf, and her tape-recorded confession was played for the jury. At the conclusion of the guilt phase, the jury found both defendants guilty of first-degree murder, aggravated assault, robbery, theft by unlawful taking, flight to avoid apprehension, escape, and conspiracy. During the penalty phase, the Commonwealth presented two aggravating factors with respect to Appellant, namely, that the killing was perpetrated during the commission of a felony, and that it was committed by means of torture. See 42 Pa.C.S. §9711(d)(6), (8). In her mitigation case, Appellant presented evidence concerning her age at the time of the crime, her relatively minor role in the homicide, and the "catch-all" mitigating factor relating to her character and record and the circumstances of the offense. See id. §§9711(e)(4), (7), (8). At the conclusion of the hearing, the jury returned a death sentence for each defendant, having found all aggravating circumstances presented and no mitigating factors for either defendant. On direct appeal, this Court concluded that the trial court erred in permitting the jury to consider the torture aggravator, but affirmed the death sentences because at least one aggravating circumstance remained as to each defendant, and the jury found no mitigating circumstances. See Commonwealth v. King, 554 Pa. 331, 374, 721 A.2d 763, 784 (1998). The Supreme Court denied Appellant's petition for a writ of certiorari. See King v. Pennsylvania, 528 U.S. 1119, 120 S. Ct. 942 (2000).

On February 14, 2000, Appellant filed a timely, pro se petition under the Post Conviction Relief Act ("PCRA"), see 42 Pa.C.S. §§9541-9546. Thereafter, she was given permission to file a counseled, amended petition, and her execution was stayed pending final resolution of her claims. See Commonwealth v. King, 561 Pa. 144, 748 A.2d 1232 (2000) (per curiam). New counsel for Appellant filed amended and supplemental petitions, raising numerous claims for collateral relief predicated on trial counsel's alleged ineffectiveness.*fn1 The PCRA court conducted an extensive, five-day hearing at which, inter alia, trial counsel stated that she was largely unprepared for the penalty phase, and forensic psychological and psychiatric experts testified concerning mitigation evidence that could have been presented in the penalty phase.*fn2

The PCRA court ultimately denied Appellant's request for a new trial, finding all her guilt-phase claims meritless. It did, however, grant Appellant a new penalty hearing based on its determination that her trial counsel had rendered ineffective assistance by failing to investigate and present any mental-health mitigating evidence. See Commonwealth v. King, No. CP-38-CR-10898-1993, Order at iii (C.P. Lebanon, July 23, 2010) (referencing "readily available evidence of [Appellant]'s history of post-traumatic stress disorder, sexual abuse, child abuse, domestic violence, depression, and drug abuse"). Appellant appealed the portion of the order dismissing her guilt-phase claims, and the Commonwealth cross-appealed, seeking reversal of the court's decision to grant a new penalty hearing. The Commonwealth later withdrew its cross-appeal, leaving Appellant's original appeal as the sole matter for resolution.*fn3 Our present task, therefore, is limited to evaluating the guilt-phase post-conviction claims that Appellant advances on appeal.

Since all such claims relate to an alleged deprivation of the Sixth Amendment right to competent counsel, see McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14 (1970), Appellant may only obtain relief if she pleads and proves by a preponderance of the evidence that her conviction resulted from ineffective assistance of counsel that, under the circumstances, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. See 42 Pa.C.S. §9543(a)(2)(ii). The Pennsylvania test for ineffectiveness is, in substance, the same as the two-part performance-and-prejudice standard set forth by the United States Supreme Court, see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), although this Court has divided the performance element into two subparts dealing with arguable merit and reasonable strategy. Thus, to succeed on an ineffectiveness claim, a petitioner must establish that: the underlying legal claim has arguable merit; counsel had no reasonable basis for her action or inaction; and the petitioner suffered prejudice as a result. See Commonwealth v. Pierce, 515 Pa. 153, 158-60, 527 A.2d 973, 975-76 (1987). To demonstrate prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; accord Commonwealth v. Cox, 603 Pa. 223, 243, 983 A.2d 666, 678 (2009). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. See Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010). No relief is due, however, on any claim that has been waived or previously litigated, as those terms have been construed in the decisions of this Court. See 42 Pa.C.S. §9543(a)(3).

In her brief to this Court, Appellant raises several issues pertaining to the representation she received at trial. In the first such issue, Appellant contends that she is entitled to a new trial because of Attorney Weiss's inexperience in handling capital cases. Appellant does not argue actual ineffectiveness, that is, that Weiss's performance was deficient and that such deficiency resulted in Strickland prejudice. Rather, she maintains that she was constructively denied her Sixth Amendment right to counsel on the grounds that Weiss was a civil practitioner with little relevant experience. In short, she asserts that prejudice should be presumed because Weiss's handling of her case amounted to structural error under United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984). See id. at 658-59, 104 S. Ct. at 2046-47. In support of her presumed (or per se) prejudice claim, Appellant proffers that Weiss had never before tried a capital case, and had only tried one criminal case, which involved a drug charge; the funding restrictions imposed by the Lebanon County Court relating to counsel's fees and those of defense investigative experts put Appellant at a substantial disadvantage in light of the Commonwealth's more extensive resources; and Weiss would not have met the criteria embodied in Rule of Criminal Procedure 801, which this Court adopted in 2004 to govern the appointment of counsel in death-penalty cases. See Pa.R.Crim.P. 801 (relating to qualifications for defense counsel in capital cases).

Because counsel is presumed to be competent, it is ordinarily the defendant's burden to demonstrate that a constitutional violation has occurred. Cronic affirmed this general precept, but also recognized a narrow category of circumstances that are so likely to cause harm that prejudice should be presumed because the cost of litigating the issue is unjustified. See Cronic, 466 U.S. at 658, 104 S. Ct. at 2046. The Cronic Court explained, for example, that prejudice is assumed where counsel is absent, or "entirely fails to subject the prosecution's case to meaningful adversarial testing." Id. at 659, 104 S. Ct. at 2047; see, e.g., United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir.1991) (finding per se prejudice under Cronic where counsel conceded that all disputed factual issues were proved beyond a reasonable doubt). As this Court has previously explained, Cronic also indicated that, even where counsel is present, surrounding circumstances may make it so unlikely that any lawyer could provide effective assistance that ineffectiveness is appropriately presumed. The Court pointed to Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932), as an example of such a scenario, as the trial judge in that matter had, on the eve of a capital trial, appointed as defense counsel an outof-state attorney who was unfamiliar with local customs and procedures and had had no opportunity to prepare.

Commonwealth v. Cousin, 585 Pa. 287, 299, 888 A.2d 710, 717 (2005) (citing Cronic, 466 U.S. at 660-61, 104 S. Ct. at 2047-48). "Courts have additionally assumed prejudice where counsel is physically present but substantially disabled from performing essential functions." Id. at 299-300, 888 A.2d at 718; see, e.g., Geders v. United States, 425 U.S. 80, 88, 96 S. Ct. 1330, 1335 (1976) (counsel prohibited from consulting with defendant during a seventeen-hour overnight recess); Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984) (counsel present but asleep); State v. Keller, 223 N.W. 698, 700 (N.D. 1929) (counsel present but severely intoxicated). See generally Bell v. Cone, 535 U.S. 685, 695-96 & n.3, 122 S. Ct. 1843, 1851 & n.3 (2002) (summarizing Cronic categories of presumed prejudice).

Although Weiss had only limited criminal trial experience, and felt that the fee cap of $5,000 was low for the amount of time she would have to spend on the case --amounting to $35.00 per hour for out-of-court work and $45.00 per hour for courtroom work, see N.T., Nov. 21, 2006, at 18 -- she was familiar with the local rules of procedure, had substantial experience as a civil litigator, and expended a significant amount time and effort in defending Appellant in the guilt phase. According to Weiss's testimony at the PCRA hearing, she: accepted appointment as defense counsel, notwithstanding her civil specialty, on the grounds that it is improper to question a trial judge's order; developed a good working relationship with Appellant; hired a medical expert to examine Appellant for competence to stand trial; expended substantial time preparing for the guilt phase; advanced a defense theory reasonably designed to negate the element of specific intent; and generally performed all of the other duties that one would normally expect of a criminal defense attorney. See id. at 23, 26, 36, 37, 54, 76, 78, 103; see also id. at 63 (reflecting counsel's assertion that "I did the very best that I could do. I worked very very hard on this case.").*fn4 These duties included representing Appellant at her preliminary hearing, investigating the facts of the case, meeting with Appellant before and during trial, filing and briefing an omnibus pretrial motion, requesting a change of venue, seeking severance from Martin's trial, reviewing the relevant law on the issue of guilt, obtaining a bill of particulars, obtaining discovery, filing a motion to compel disclosure, participating in voir dire, giving an opening statement, cross-examining the Commonwealth's witnesses, handling direct examination of defense witnesses, lodging and arguing evidentiary objections before and during trial, and providing a closing argument to the jury. See id. at 85-88.*fn5 Moreover, our own review of the trial transcript reveals that Attorney Weiss reasonably acted in a manner calculated to advance Appellant's interests, including, inter alia, presenting a defense case and making appropriate arguments to the jury as to why it should acquit Appellant of the most serious charges lodged against her.*fn6

In light of the above, we do not agree with Appellant that Weiss's inexperience with capital cases, or the county court's counsel and investigative fee caps, resulted in a constructive denial of counsel so as to give rise to structural error. Indeed, this Court rejected a similar argument in Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008), a matter in which trial counsel was subject to a $3,500 fee ceiling and was provided $500 for a private investigator. In Williams, defense counsel testified at the PCRA hearing that he was a single attorney assigned to a capital case with little budget. Nevertheless, like Weiss, he regarded accepting court appointments as part of his duties as an attorney. This Court explained that, in spite of any such limitations, counsel subjected the Commonwealth's case to meaningful adversarial testing, thus negating the applicability of the presumed-prejudice doctrine. Williams noted that, in Cronic itself the United States Supreme Court held that a newly-appointed attorney, who was afforded only twenty-five days to prepare for trial in a case which the government spent four and one-half years investigating and preparing, was not per se ineffective. The fact that counsel was a young real estate attorney trying his first criminal case, the severity of the criminal charges, the complexity of the matter, and the inaccessibility of witnesses to counsel did not, individually or in combination, provide a basis for concluding that counsel could not render adequate stewardship.

Id. at 140, 950 A.2d at 313 (citing Cronic, 466 U.S. at 663-66, 104 S. Ct. at 2049-51); see also Avery v. Alabama, 308 U.S. 444, 450, 60 S. Ct. 321, 324 (1940) (holding that capital counsel appointed three days before trial were not per se ineffective, where they "performed their full duty intelligently and well" and presented the accused's defense at trial); Com. ex rel. Crosby v. Rundle, 415 Pa. 81, 87, 202 A.2d 299, 303 (1964) (refusing to presume ineffectiveness where counsel had experience in various areas of the law but had never tried a murder case, and elaborating that "absence of effective representation means representation so lacking in competence that it becomes the duty of court or prosecution to correct it, so as to prevent a mockery of justice"). The Williams Court ultimately concluded that "trial counsel's voluntary acceptance of full responsibility for the representation subject to the [fee] limitation does not fall within the narrow category of cases reflecting a breakdown in the adversary process as discussed in Cronic." Williams, 597 Pa. at 141, 950 A.2d at 313. Likewise, the Court regarded the $500 limitation on investigative services as a "component of a layered ineffectiveness claim subject to the requirement to prove prejudice." Id. The present case, as noted, is substantially similar to Williams.

Appellant proffers that Williams is distinguishable on the basis that trial counsel there voluntarily accepted the fee, expense, and time limitations, whereas Weiss objected to her appointment due to her lack of experience in trying murder cases. See Brief for Appellant at 22. However, Weiss never lodged an objection as of record. According to her PCRA testimony, she had substantial misgivings which she expressed over the phone to Judge Eby when he called to inform her that he wanted her to represent Appellant. In spite of Weiss's uncertainties, Judge Eby expressed confidence in her and, eventually, entered an order appointing her as Appellant's counsel. As explained, once this occurred, Weiss accepted the assignment on the basis of her belief that it would have been improper for a lawyer to question a court order to this effect. Therefore, Appellant's contention that Weiss "objected" is only true in the colloquial sense that she initially expressed reluctance while speaking with Judge Eby over the phone.*fn7 This, however, does not constitute a distinction vis-a-vis Williams that is legally meaningful for purposes of the presumed prejudice doctrine as it has been developed in Cronic and its progeny. To the contrary, the Supreme Court has been generally disinclined to identify new categories of structural error, accord United States v. White, 405 F.3d 208, 221-22 (4th Cir. 2005), and we believe that Weiss's initial expression of her reservations would not be deemed by that Court to tip the balance significantly in favor of a finding of presumed prejudice.

We are not unsympathetic to the plight of a court-appointed defense attorney laboring under minimal funding and a dearth of relevant experience in a capital case -and even more significantly, to such an attorney's client, who has the most to lose from such a circumstance.*fn8 Additionally, we do not mean to discount the possibility that an attorney in that situation may ultimately render actual ineffective assistance stemming, at least in part, from her inexperience and the county's funding limitations. Our only point here is that case precedent does not support the finding of structural error under the present circumstances, and hence, claims along such lines need to be proved based upon the three-part Pierce test.

As regards Appellant's assertion that Weiss would not have met the criteria embodied in Rule 801, Appellant again primarily highlights counsel's lack of experience in handling capital cases. The question of whether counsel's inexperience in such matters, in itself, compels a finding of per se prejudice, is addressed above. We do not consider the fact that Rule 801 contains experiential criteria to add substantially to the argument, primarily because the rule went into effect a decade after Appellant's trial. See Pa.R.Crim.P. 801, Note (reflecting an effective date of November 1, 2004).

It is true that the character of the interests at stake -- a capital defendant's life and liberty -- did not change during the intervening ten years. That being the case, it is understandable that Appellant would highlight the Rule's requirements and argue that Weiss did not satisfy them. In considering the legal issue raised, however, the timing of the events is germane. Simply put, Rule 801 does not apply to Appellant's trial since it was meant to be applied prospectively only.*fn9 The Rule was adopted by an Order of this Court that specified a phase-in schedule for its provisions, see Pa.R.Crim.P. 801, Historical Notes, and this Court has confirmed that the Rule was not intended to be applied retroactively. See Commonwealth v. Boxley, 596 Pa. 620, 630, 948 A.2d 742, 747 (2008). It follows that, at the time of Appellant's trial, the presumption of competency attaching to defense counsel cannot have been affected by the subsequent adoption of the Rule. Accord Commonwealth v. Martin, 607 Pa. 165, 190 n.17, 5 A.3d 177, 191 n.17 (2010) ("The mere fact that this Court has recently adopted standards governing the qualifications of defense counsel in capital cases does not mean that appointed counsel in prior cases, who would not qualify under those standards, must have been ineffective."); Boxley, 596 Pa. at 630, 948 A.2d at 747 ("Rule 801 in no way suggests that a defendant is automatically entitled to a new trial if his counsel fails to comply with the educational requirements of the rule."). Moreover, under the United States Supreme Court's interpretation of the Sixth Amendment right to competent representation, counsel's performance must be judged by the prevailing professional standards in existence at the time of trial. See Bobby v. Van Hook, 558 U.S. 4, ___, 130 S. Ct. 13, 16-17 (2009); cf. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066 ("[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.").*fn10 Accordingly, the adoption of Rule 801, with its experiential and educational criteria, ten years after Appellant's trial, does not convince us that we must find a constitutional deprivation without any showing of prejudice.

Finally, Appellant contends that prejudice should be presumed under Cronic because the ceiling imposed on Weiss's attorney fees created a conflict of interest between Weiss and Appellant. Relying largely on Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708 (1980), Appellant's theory appears to be that, beyond a certain point, Ms. Weiss would essentially have to work for free, and thus, would incur the opportunity cost of foregoing work on cases for more remunerative clients. This argument seems to represent another approach to claiming structural error due to funding deficiencies. Because, however, the Supreme Court has treated actual conflicts of interest as potentially resulting in presumed prejudice, we will evaluate the claim on its terms.*fn11

The Supreme Court has found a constructive denial of the constitutional right to the assistance of non-conflicted counsel where a lawyer is required, over objection, to undertake simultaneous representation of two co-defendants with antagonistic defenses. See Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173 (1978). After Holloway, the Court clarified that multiple representation, in itself, does not give rise to presumed denial of counsel. Rather, the burden remains on the defendant to demonstrate that the asserted conflict adversely affected his lawyer's performance. See Sullivan, 446 U.S. at 348, 100 S. Ct. at 1718; Strickland, 466 U.S. at 692, 104 S. Ct. at 2067; accord Mickens v. Taylor, 535 U.S. 162, 174, 122 S. Ct. 1237, 1245 (2002); Smith v. Robbins, 528 U.S. 259, 287, 120 S. Ct. 746, 765 (2000); Burger v. Kemp, 483 U.S. 776, 783, 107 S. Ct. 3114, 3120 (1987); Commonwealth v. Small, 602 Pa. 425, 448-49, 980 A.2d 549, 563 (2009).*fn12

The primary difficulty with Appellant's conflict-of-interest-based per-se prejudice claim is that the conflict-of-interest framework, as it has been developed for purposes of Cronic-style presumed prejudice in the Holloway/Sullivan line of cases, pertains only to dual representation, that is, representation of more than one client, where the clients have diverging interests. See, e.g., Commonwealth v. Tedford, 598 Pa. 639, 728, 960 A.2d 1, 54 (2008) ("An actual conflict of interest is evidenced whenever during the course of representation, the interests of appellant -- and the interests of another client towards whom counsel bears obligations -- diverge with respect to a material factual or legal issue or to a course of action." (internal quotation marks omitted)). The Supreme Court has characterized these situations as subsuming an "active representation" of conflicting interests, see, e.g., Mickens, 535 U.S. at 166, 122 S. Ct. at 1241 (reciting that the Court has foregone inquiry into actual prejudice where "the defendant's attorney actively represented conflicting interests"), which it has recognized as being inherently suspect. See id. at 168, 122 S. Ct. at 1241 (quoting Holloway, 435 U.S. at 489-90, 98 S. Ct. at 1181). In this respect, i.e., in focusing on the "active" nature of the conflict, the Court's concern centers primarily on the potential for an attorney to alter his trial strategy due to extrinsic considerations stemming from other loyalties, thereby distorting counsel's strategic or tactical decisions in a manner that would not occur if counsel's sole loyalty were to the defendant. See, e.g., Wood v. Georgia, 450 U.S. 261, 272, 101 S. Ct. 1097, 1103-04 (1981) (remanding for a determination of adverse effect where the Supreme Court could not be certain whether the defense attorney was "influenced in his basic strategic decisions by the interests of the employer who hired him"). In this vein, courts sometimes assess adverse effect by questioning whether the record shows that counsel "pulled his punches," i.e., failed to represent the defendant as vigorously as he might have done had there been no conflict. See, e.g., United States v. Nicholson, 475 F.3d 241, 251 (4th Cir. 2007); United States v. Martinez, 630 F.2d 361, 362-63 (5th Cir. 1980); People v. Clark, 261 P.3d 243, 344 (Cal. 2011); Beard v. Commonwealth, 302 S.W.3d 643, 647 (Ky. 2010); Davis v. State, 897 So. 2d 960, 970 (Miss. 2004). Here, however, Appellant is arguing for assumed prejudice on the theory that Weiss's representation of Appellant conflicted with her own interest in obtaining monetary compensation from work she could otherwise have performed for other clients. Appellant has thus shifted the focus to the attorney's private interests as the basis for the conflict -- and hence, presumed prejudice -- as opposed to centering her contention on the difficulties that arise when an attorney attempts to represent multiple parties with diverging interests.

We do not foreclose the possibility that a conflict of interest may arise apart from dual representation -- such as where an attorney is somehow beholden to the interests of another, antagonistic party without actually functioning as that party's attorney. Cf. Goforth v. Commonwealth, 2009 WL 1110400, *8 (Ky. April 23, 2009) (considering, albeit ultimately rejecting, a defendant's allegation of a conflict of interest where his attorney was paid by the same entity that provided counsel for his co-defendant). Nor do we deny that an attorney's financial interests can conflict with those of his client under some circumstances, see, e.g., In re Vioxx Prods. Liab. Litig., 650 F. Supp. 2d 549, 560 (E.D. La. 2009) (positing that, in a civil lawsuit where the amount of a contingency fee is at issue, a conflict may exist between the claimant and his attorney who both seek to maximize their own percentage of an award), or that a conflict with the attorney's private interests may adversely affect the attorney's representation of his client, such as where defense counsel is himself under criminal investigation. See Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir. 1992) (noting that a conflict may arise in such a circumstance since counsel may fear that an acquittal will anger the district attorney's office, which might then retaliate); see also United States v. Fulton, 5 F.3d 605, 610 (2d Cir. 1993) (finding a conflict of interest where a government witness alleged that counsel engaged in criminal conduct related to the charges for which the defendant was on trial); United States v. Ellison, 798 F.2d 1102, 1106-08 (7th Cir. 1986) (finding a conflict where pursuit of the client's interests would lead to evidence of counsel's malpractice). Thus, we credit Appellant's argument to the degree it proposes that it is possible for an underpaid attorney's financial interest in undertaking other, more remunerative work, to impinge on his or her full devotion to the interests of the client at issue -- at least in the sense that the attorney may be incentivized to spend less time and fewer resources representing that client as a result of such extrinsic financial pressures. See generally Fulton, 5 F.3d at 609 ("A situation in which the attorney's own interests diverge from those of the client presents the same core problem presented in the multiple representation cases: the attorney's fealty to the client is compromised.").*fn13

In spite of the above, we remain doubtful that the asserted conflict here can reasonably fit within the contours of the conflict-of-interest framework for Sixth-Amendment presumptive prejudice, at least as the Supreme Court has developed that doctrine, as it is of a different nature qualitatively from the other conflicts that the Court has recognized. In this regard, we are guided by the Supreme Court's own analysis of its Holloway/Sullivan line, in which it has criticized a tendency among the lower federal courts to apply Sullivan "unblinkingly to all kinds of alleged attorney ethical conflicts." Mickens, 535 U.S. at 174, 122 S. Ct. at 1245 (internal quotation marks and citation omitted). Even more pointedly, the Mickens Court explained that such tribunals

have invoked the Sullivan standard not only when (as here) there is a conflict rooted in counsel's obligations to former clients, but even when representation of the defendant somehow implicates counsel's personal or financial interests, including a book deal, a job with the prosecutor's office, the teaching of classes to Internal Revenue Service agents, a romantic "entanglement" with the prosecutor, or fear of antagonizing the trial judge.

It must be said, however, that the language of Sullivan itself does not clearly establish, or indeed even support, such expansive application. "[U]ntil," it said, "a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance."

Id. at 174-75, 122 S. Ct. at 1245 (quoting Sullivan, 446 U.S. at 350, 100 S. Ct. at 1719) (emphasis altered; citations omitted). Thus, because Mickens expressly disapproved extending the Holloway/Sullivan conflict analysis to a broad category that it couched in terms of "counsel's personal or financial interests," we are not at liberty, absent further material guidance from that Court, to apply Sullivan so as to find structural error grounded on the fee ceiling imposed by the county court in the present case. Accordingly, Appellant cannot prevail on her claim that she was constructively denied counsel due to the asserted conflict grounded on Weiss's financial interest in working on cases for more remunerative clients during the relevant time period.

Appellant next claims that she is entitled to a new trial because counsel was ineffective in failing to present expert psychiatric or other mental health testimony to support the defenses of duress and diminished capacity. Addressing the duress issue first, Appellant contends that Weiss initially intended to present the affirmative defense of duress, see infra note 14, which would have absolved Appellant of all criminal liability for killing Goodman, see Commonwealth v. Markman, 591 Pa. 249, 284, 916 A.2d 586, 607 (2007) ("Duress is a defense to criminal culpability."), but that she ultimately opted not to pursue that defense, as is evident from the fact that Weiss never asked the jury to acquit King of criminal homicide. Appellant suggests that this was a critical mistake, since Weiss was aware of Appellant's history of physical and sexual abuse, and that the introduction of expert mental health testimony could have persuaded the jury to find that Appellant acted under duress. In this latter regard, Appellant highlights a passage from the PCRA testimony of Dr. Harry Krop, a licensed psychologist, which Appellant states "could have assisted the lay jury in understanding how the perpetration of sexual and physical abuse upon [Appellant] by the males in her life . . . could have left her susceptible to coercion by Martin[.]" Brief for Appellant at 25.

The difficulty with Appellant's argument is that, although Dr. Krop discussed Appellant's history of sexual abuse and the possibility that she was suffering from post-traumatic stress disorder, depression, and/or low self-esteem at the time of the killing, he clarified that this resulted in an emotional dependency upon Martin and a concomitant fear of abandonment. There is no indication in the portion of Dr. Krop's testimony on which Appellant relies that he concluded that Appellant was coerced by the use or threat of force.*fn14 To the contrary, Appellant quotes Dr. Krop as stating:

So I don't think [Appellant] was afraid that [Martin] would hurt her in a physical kind of way. I think she was just so devastated by the possibility of being rejected and abandoned and not pleasing this man that that to me was probably the most important aspect of this pathological relationship that she had with this individual.

N.T., Feb. 23, 2009, at 86, quoted in Brief for Appellant at 26; see also id. at 102 (reflecting Dr. Krop's testimony that Appellant "feared rejection" but was not "physically afraid" of Martin); id. at 84 ("I don't think she was physically afraid of Mr. Martin.").*fn15

Even if we grant, arguendo, that fear of rejection or of not pleasing one's intimate companion constitutes an incentive to engage in criminal conduct, it cannot reasonably be equated with the use or threat of unlawful force against Appellant's person for purposes of Section 309(a) of the Crimes Code. Thus, the evidence brought forward at the PCRA hearing simply does not implicate a defense under Section 309(a). Because Appellant's underlying legal issue lacks arguable merit, her ineffectiveness claim based on Weiss's failure to pursue the defense of duress is unavailing. See Commonwealth v. Walker, ___ ...


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