Appeal from the Judgment of Sentence March 7, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006441-2010
BEFORE: GANTMAN, J., SHOGAN, J., and MUSMANNO, J.
Appellant, Ernest Trice, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for second degree murder, arson, and causing or risking catastrophe. We affirm the convictions, vacate the separate sentence for arson, and affirm the judgment of sentence in all other respects.
The relevant facts and procedural history of this appeal are as follows. On February 22, 2010, Appellant used an accelerant to set fire to a residence at 101 East Collum Street in Philadelphia. The victim was inside the residence at the time of the fire, and he died from smoke inhalation. On March 11, 2010, police interviewed Appellant, who admitted he had started the fire in an attempt to destroy the "stash" of a rival drug dealer. Appellant denied knowing that the victim was inside the residence when Appellant started the fire. On May 20, 2010, the Commonwealth filed a criminal information charging Appellant with multiple offenses related to the arson. Prior to trial, Appellant filed a motion to suppress his statement to police, claiming it was involuntary. Following a hearing, the court denied Appellant's suppression motion.
The parties appeared for trial on January 23, 2012, where Appellant's privately-retained counsel informed the court that Appellant was dissatisfied with counsel's representation and wanted the court to appoint new counsel. After hearing from the parties, the court denied Appellant's request for new, appointed counsel. The court, however, did issue bench warrants for certain defense witnesses, and it continued the matter to provide trial counsel additional time for investigation.
On March 7, 2012, a jury convicted Appellant of second degree murder, arson, and causing a catastrophe. Appellant immediately proceeded to sentencing. For the second degree felony murder conviction, the court sentenced Appellant to life imprisonment without parole. The court also sentenced Appellant to concurrent terms of ten (10) to twenty (20) years' imprisonment for the predicate felony of arson and three and one-half (3½) to seven (7) years' imprisonment for causing a catastrophe. Appellant filed a motion for extraordinary relief on March 12, 2012, challenging the sufficiency and weight of the evidence. The court denied Appellant's post-sentence motion on July 20, 2012.
Appellant timely filed a notice of appeal on August 2, 2012. On January 28, 2013, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant subsequently complied with the court's order.
Appellant now raises five issues for our review:
WHETHER THE COURT COMMITTED LEGAL ERROR, WHEN IT DENIED…APPELLANT'S REQUEST FOR NEW COUNSEL TO BE APPOINTED BY THE COURT, AFTER APPELLANT NOTIFIED THE COURT OF HIS LACK OF FUNDS FOR NECESSARY INVESTIGATIONS AND A SIGNIFICANT CONFLICT OF INTEREST REGARDING HIS COUNSEL'S LAW FIRM.
WHETHER THE PROSECUTOR MADE IMPROPER AND PREJUDICIAL REMARKS TO HORRIFY THE JURY, PREVENTING…APPELLANT FROM HAVING A FAIR TRIAL, WHEN THE PROSECUTOR REPEATEDLY CHARACTERIZED THE VICTIM'S BODY AS "BURNED UP" WHEN THE VICTIM ACTUALLY HAD NO BURNS, BUT DIED FROM SMOKE AND SOOT INHALATION.
WHETHER THE COURT ABUSED ITS DISCRETION AND CAUSED SUBSTANTIAL HARM TO…APPELLANT, BY DENYING APPELLANT'S MOTION FOR A MISTRIAL DUE TO TESTIMONY OF WITNESS IRA YOUNG THAT HE WAS "SCARED" (TO TESTIFY).
WHETHER THE COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS HIS WRITTEN STATEMENT TO PHILADELPHIA HOMICIDE DETECTIVES, WHICH APPELLANT ASSERTS WAS GIVEN UNDER PHYSICAL DURESS.
WHETHER THE VERDICT WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
(Appellant's Brief at 4).
In his first issue, Appellant maintains his innocence, claiming another individual, Christian Freedman, had committed the crimes. Appellant contends trial counsel had a conflict of interest, because counsel also represented Mr. Freedman's cousin. Moreover, Appellant insists trial counsel did not adequately investigate all potential defense witnesses. Under these circumstances, Appellant concludes the court should have granted his request for new, court-appointed counsel. We disagree.
"The decision whether to appoint new counsel lies within the trial court's sound discretion." Commonwealth v. Wright, 599 Pa. 270, 297, 961 A.2d 119, 134 (2008).
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his or her defense. Similarly, Article I, Section 9 of the Constitution of this Commonwealth affords to a person accused of a criminal offense the right to counsel. However, the constitutional right to counsel of one's own choice is not absolute. Rather, the right of an accused individual to choose his or her own counsel, as well as a lawyer's right to choose his or her clients, must be weighed against and may be reasonably restricted by the state's interest in the swift and efficient administration of criminal justice. Thus, while defendants are entitled to choose their own counsel, they should not be permitted to unreasonably clog the machinery of justice or hamper and delay the state's efforts to effectively administer justice.
Commonwealth v. Lucarelli, 601 Pa. 185, 193-94, 971 A.2d 1173, 1178-79 (2009) (internal citations omitted).
"To show an actual conflict of interest, the appellant must demonstrate that: (1) counsel 'actively represented conflicting interests'; and (2) those conflicting interests 'adversely affected his lawyer's performance.'" Commonwealth v. Sepulveda, __ Pa. __, __, 55 A.3d 1108, 1147 (2012) (quoting Commonwealth v. Collins, 598 Pa. 397, 420, 957 A.2d 237, 251 (2008)). "Clients' interests actually conflict when during the course of representation they diverge with respect to a material factual or legal issue or to a course of action." Sepulveda, supra at __, 55 A.3d at 1147 (internal quotation marks omitted).
Instantly, the court scheduled trial for January 23, 2012. At that time, Appellant's privately-retained trial counsel requested a continuance, informing the court that certain defense witnesses had failed to appear. The court asked trial counsel whether he had sent an investigator to locate the witnesses, but counsel indicated he did not have the funds for an investigator. Reluctant to delay the proceedings, the court offered to send a detective out to retrieve the witnesses. Following the court's announcement that it was ready to select jurors, trial counsel asked the Commonwealth if it was willing to make a plea deal. The parties briefly went off the record. Thereafter, the court sent trial counsel to discuss matters with Appellant.
After meeting with Appellant, trial counsel informed the court that Appellant had demanded new, court-appointed counsel. Appellant was adamant about not taking a plea deal and claimed that trial counsel had "done nothing for him…." (See N.T. Hearing, 1/23/12, at 22.) The court responded, "It is too late for that for him. He is just going to play fast and loose with the system. That's just not going to happen." (Id. at 25). Nevertheless, the court conducted an on-the-record hearing regarding Appellant's request.
During the hearing, Appellant complained that trial counsel had failed to find an eyewitness, James Ellis, who would testify that Christian Freedman had committed the crimes at issue. Appellant also alleged that trial counsel had represented Mr. Freedman's cousin. When asked for the name of Mr. Freedman's cousin, Appellant could only provide a nickname, "Cat." Trial counsel informed the court, "Your Honor, if Cat is Kyre Smith, then the answer would be yes. He was a client of my father's and I represented Mr. Smith, as well." (Id. at 34). In light of this information, the court addressed Appellant as follows:
THE COURT: [Trial counsel's] office doesn't represent Mr. Freedman but represents a cousin of Mr. Freedman's…so [Appellant] doesn't want [trial counsel] to represent him because of the connection to a cousin.
How would that affect anything?
[APPELLANT]: My witness [doesn't] feel comfortable with talking with [trial counsel] because he fears that [trial counsel] will tell the person's cousin and something could happen to him.
THE COURT: Your witness is going to testify in open court. First of all, [trial counsel] is an officer of the court, number one. He is duty-bound not to do anything like that.
Two, your witness is going to testify in open court, so whoever happens to be in the courtroom will hear it. So his fear about [trial counsel] hearing it is unfounded.
Your witness is present. He is here and he is ready to testify. That is the witness you wanted and that witness was hard to come by or ...