Commonwealth v. Wallace

¶1dissenting.

¶2I dissent because I believe that the Appellant’s argument that the trial court erred in permitting Henry Brown to testify as a witness has merit. This allegation of error, *317which is based upon the prosecutor’s conduct in securing the witness’ testimony, requires a lengthy examination of the events which precipitated Brown’s appearance at trial.

¶3The Appellant was with Henry Brown on the day he was arrested. Brown fled from the police, however, and successfully eluded them until he was arrested in another state. On January 23, 1980, he gave a statement to law enforcement officers identifying the Appellant as the one who shot the victim.

¶4Brown entered a guilty plea to two counts of murder in the second degree and to robbery as a result of this incident on October 24, 1980. At the time he entered his plea, Brown was represented by privately retained counsel, Paul Gettleman, Esquire. The plea was accepted by Judge Bell, who sentenced Brown to two concurrent life sentences.

¶5The guilty plea entered by Brown on October 24, 1980 was not the first plea offered. The first guilty plea offered by Brown was made in January, 1980, at a time when he was represented by counsel other than Paul Gettleman. During cross-examination, Appellant’s counsel questioned Brown extensively about the first plea and read the following excerpted portions from the transcript of the first plea proceeding before Judge Bell:

Q. I am going to read to you from the transcript of your first guilty plea, Mr. Brown, and I want you to tell me whether or not this is correct. The Judge is examining you and that Judge is the same Judge that is sitting next to you here, Judge Bell, and he says to you, he says, with respect to your plea bargain, he says, “And you also, if required of you, will testify against Tippy Wallace [William Wallace], is that correct?” Answer — “yes.” Question — “And that is part of the plea bargain, I assume.” Answer— “Yes.” Question — “Now is there anything you would like to tell me concerning this offense or these offenses?” Answer — “What I don’t understand is this going to be all — is this all going to be verbal or is this between the prosecutor and myself?” Question

*318—“The question was, he wants to understand, is this all verbal or do you want something in writing here. It is verbal here, but as you can see, the Court Stenographer is taking this down word for word, and that will all be transcribed, and believe me, I have it written down here what it is, and it is transcribed there under oath of you. And as I say, if I go along with this plea bargain, that is what it will be; if I don’t go along with the plea bargain, then you are right back where you started from. Do you understand? Likewise, however, if you don’t go along with anything here, we are right back where we started from. Do you understand?” Answer— “Yes.” Question — “Is there any other question you have?” Answer — “No.” Question — “Now if I accept the plea bargain, I will go into further detail about your appellate rights and also you and your counsel will be given the opportunity at the time of sentencing to say anything. Do you understand that?” Answer — “Yeah.” Now, Mr. Brown, were you confused at that time, you didn’t understand what was going on?

A. At that time, no.

Q. At that time you weren’t confused. Now you withdrew that plea bargain, didn’t you?

A. Yes.

Q. And you withdrew that plea bargain in July of 1980, correct?

A. Yes, on advice of my lawyer, yes.

(N.T. pp. 656-658) (Emphasis added).

¶6The first plea was withdrawn on July 16, 1980. Brown’s testimony suggested at first that his reason for withdrawal of that plea was that he felt he should not have to serve a sentence of life imprisonment because of his limited involvement in the murders and was due also to poor advice from his first counsel. But the excerpted portions of the transcript of the withdrawal of the guilty plea read into the record by Appellant’s counsel on cross-examination reveal *319that the Commonwealth would not proceed with the plea bargain because Brown’s first attorney had advised the Commonwealth that Brown would not testify against the Appellant. (N.T. pp. 668-664). Due to Brown’s refusal to testify, the district attorney withdrew the Commonwealth’s agreement to plea bargain. The district attorney then indicated that he would proceed with the criminal informations and seek the death penalty on the charge of first degree murder.

¶7Five years elapsed between the date on which Brown entered his guilty plea to the date on which the third trial of the Appellant commenced. On the eve of Appellant’s trial, however, Brown was permitted to withdraw his guilty plea and entered into yet another plea bargain with the Commonwealth. In exchange for his testimony against the Appellant, Brown was allowed to withdraw his guilty plea to second degree murder and enter a plea to third degree murder.

¶8The Appellant asserts that the prosecutor’s conduct in obtaining Brown’s testimony at trial was improper, necessitating the grant of a new trial. I would agree.

¶9The withdrawal of Brown’s guilty plea was permitted upon presentation of a petition alleging the ineffectiveness of counsel Paul Gettleman during his representation of Brown at the time the plea was entered. The petition was presented by Paul Gettleman himself, alleging his own ineffectiveness. The petition, ostensibly filed under the Post-Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551, was unopposed by the prosecuting attorney, who eagerly conceded that Brown should be permitted to withdraw his guilty plea for the reasons cited in the petition.

¶10Although the transcript of the PCHA proceedings was not incorporated into the record at this trial, discussions held in chambers with counsel revealed that the proceeding was not the ordinary one of an adversarial nature between the Commonwealth and the defendant. Atypically, the proceeding consisted of representations by counsel Paul Gettleman that he had been ineffective in advising Brown during *320the guilty plea proceedings five years earlier, that his ineffectiveness would merit a new trial, and that if Brown would be permitted to withdraw his guilty plea, the new plea arrangement contemplated by the Commonwealth would be recommended to Brown. Because the Commonwealth agreed that Brown’s request for withdrawal of the guilty plea through the vehicle of the PCHA petition would not be opposed if Brown would testify against Wallace, no hearing was held on the merits of the petition itself. Instead, a written stipulation and agreement was entered into on behalf of Brown and the Commonwealth permitting the plea to be withdrawn.

¶11The filing of the PCHA petition was no more than a guise for the striking of a plea bargain which had fallen by the wayside five years earlier, due to Brown’s failure to co-operate with the Commonwealth. Apparently, Brown’s incarceration had given him ample opportunity to reflect on the wisdom of protecting the Appellant. Persuaded by a burgeoning sense of injustice, Brown recognized that his testimony against the Appellant in the third trial would enable him to salvage the bargain offered to him earlier. The prosecutor seized the moment as well.

¶12From the outset of the trial, defense counsel objected to the introduction of Brown’s testimony because of the unusual procedure employed to obtain it. Although defense counsel was aware that Paul Gettleman and the prosecuting attorney had appeared before Washington County Court of Common Pleas President Judge Thomas Gladden to present the so-called PCHA petition, it was not until the middle of the Appellant’s trial that defense counsel was even given access to a copy of the petition.1 On October 25, 1985, the petition had been presented and ruled upon, but it was still not a matter of public record.

¶13*321Prior to Brown’s testimony, defense counsel indicated once again that the PCHA petition had not been docketed, despite President Judge Gladden’s acceptance of the petition and plea bargain. No copy of the plea agreement had yet been provided to defense counsel, despite repeated requests. The prosecuting attorney admitted to having possession of the original petition and four copies at that time, but disingenuously stated that he had felt no obligation to file or not file the documents. The trial judge had to instruct the prosecuting attorney to provide defense counsel with a copy of the documents.

¶14The terms of the plea bargain were set forth in the record by defense counsel on cross-examination of Brown:

Q. Mr. Brown, this is the document that you signed and it is known as Plea Agreement, is that correct?

A. Yes.

Q. This is in the case of Commonwealth of Pennsylvania versus Henry Eugene Brown, is that correct?

A. Yes.

Q. Paragraph one, it says, “In return for his testimony against William Wallace, his co-defendant charged with two counts of criminal homicide, robbery and criminal conspiracy, the Commonwealth agrees to the following: the Commonwealth agrees not to contest the Post-Conviction Hearing Act filed by Henry Eugene Brown, wherein he requests to withdraw his guilty plea.”

Q. You haven’t filed that yet, have you, Mr. Brown?

A. Not that I know of. This is it, yes.

Q. So that when this agreement says it’s been filed, that is not correct, is it? It hasn’t been filed, to the best of your knowledge.

A. To the best of my knowledge, no.

Q. “The Commonwealth concedes that Henry Eugene Brown should be permitted to withdraw his guilty plea to first degree murder [sic] for the reasons cited *322in the PCHA Petition.” C — “The Commonwealth would recommend to the Court that because of Henry Brown’s cooperation with the authorities in the investigation of this case and because his testimony is critical in the prosecution of William Wallace, that a plea should be offered and accepted to murder of the third degree, with a total maximum sentence on all charged not to exceed ten to twenty years.”

Q. Is that correct?

A. Yes, that’s what it reads.

Q. “The Commonwealth agrees that Henry Brown is entitled to credit towards this sentence for any time that he has already served for this crime and in addition, the Commonwealth agrees and promises that Henry Brown will be incarcerated in another state penal system outside of Pennsylvania for the duration of his term. The Commonwealth will recommend to the State of Ohio that any and all detainers lodged against Henry Eugene Brown should be dismissed, based upon his cooperation in this prosecution and based upon the fact that the detainers were lodged over six years ago and have not been acted on as of this date.”

Q. Correct?

A. Yes.

Q. Paragraph two, “In order to fulfill his part of the agreement, Henry Eugene Brown agrees to testify truthfully and completely to all facts surrounding the case at issue. Said testimony, however, to be substantially consistent with the statement of said Henry Eugene Brown as given to law-enforcement officers on January 23, 1980, wherein he identifies William Wallace as the shooter of Tina Spalla and Carl Luisi, Sr.” Paragraph three, “If William Wallace is convicted at a later date and would receive a new trial in this matter, Henry Eugene Brown agrees to return to Washington County, Pa. if subpoenaed and offer the same testimony on behalf of the Common*323wealth.” Paragraph four, “This plea is in no way conditioned upon a finding of guilty of William Wallace. The only condition that Henry Eugene Brown must fulfill for the terms of this plea bargain to take effect is to give complete and truthful testimony regarding William Wallace and the facts surrounding a double homicide at Carl’s Cleaners in the Borough of Canonsburg on August 17, 1979 in Washington County, Pa. In order to fulfill his part of the agreement, Henry Eugene Brown agrees to testify truthfully and completely to all facts surrounding the cases at issue. Said testimony, however, to be substantially consistent with the statement of the said Henry Eugene Brown as given to law-enforcement officers on January 23, 1980, wherein he identifies William Wallace as the shooter of Tina Spalla and Carl Luisi, Sr.” “Five, once Henry Eugene Brown testified on behalf of the prosecution, he will be taken immediately back to the presiding Judge for an imposition of sentence consistent with the terms of this agreement, but under no circumstances will the total terms of confinement exceed ten to twenty years, to be served in a penal institution outside of Pennsylvania. Upon receipt of a copy of an application for parole on behalf of Henry Eugene Brown, an investigation shall be conducted into prison behavior of the said Henry Eugene Brown. In the event said investigation reveals Brown to having been a satisfactory prisoner, the District Attorney of Washington County will recommend the granting of the Application for Parole.”

Q. That is the sum and substance of the whole agreement, isn’t it?

A. Yes.

(N.T. pp. 684-688).

¶15Although the Appellant lacks standing to challenge the validity of the guilty plea entered by Brown, that does not foreclose him from challenging the admissibility of Brown’s testimony because of prosecutorial misconduct. In that *324respect, the Appellant’s position is critically different from the factual circumstances in the case of Commonwealth v. Howard, 358 Pa.Super. 259, 517 A.2d 192 (1986), which was relied upon by the trial court in denying the Appellant’s post-trial motions.

¶16In Commonwealth v. Howard, the appellant had argued that the trial court erred in denying a motion to vacate the plea entered by a contract killer hired by the appellant to kill his wife and to exclude the killer’s testimony at trial. In exchange for his truthful testimony against the appellant, the Commonwealth had agreed not to seek the death penalty against the hired killer. The Superior Court held that the appellant had no standing to challenge the guilty plea or plea bargain, and that the witness’ testimony could not be excluded without a showing that the appellant’s constitutional rights had been violated.

¶17This is not a situation, however, in which the prosecutor has simply used his discretion to entertain a plea bargain in exchange for a witness’ co-operation in testifying against another. The prosecutor in this case engaged in the deliberate manipulation of the judicial process to secure testimony from a witness in exchange for a plea bargain long past the time when plea negotiations were properly within his discretion. The PCHA proceeding was a subterfuge intended to regain an advantage lost when Brown would not comply with the conditions contemplated in the original offer of a plea bargain. Shared regrets by the prosecutor and witness do not justify such action. It was admitted that the district attorney’s office had even approached the State Pardons Board to find a way to negotiate a plea bargain with Brown. The patent misuse of the PCHA procedure by the prosecutor to ensure Brown’s testimony was misconduct which renders the testimony inadmissible and would require a new trial.

¶18The majority cavalierly dismisses the Appellant’s argument by concluding that the plea bargain was presented to the jury. This reasoning misses the point. Yes, the jury was told of the plea bargain — but it is the Commonwealth’s patent abuse of the legal process in obtaining the testimony *325that bars its use. The right to be protected is the defendant’s right to a fair trial. It is not enough then to say simply that the jury knew what was promised to Brown in exchange for his testimony.

¶19When the Commonwealth undertakes prosecution of a defendant and secures a successful prosecution by manipulating the judicial system, the right to a fair trial is destroyed. It cannot be salvaged by showing what motive the witness has to testify because it is the Commonwealth’s conduct that has deprived the defendant of that right. That conduct is not, and should not be, before the jury — it is for this Court to redress that wrong.

¶20I would reverse the judgments of sentence and grant a new trial.