A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Click to download Opinion C. v. Chmiel

The Supreme Court of Pennsylvania has issued an Opinion in the matter of COMMONWEALTH of Pennsylvania v. David CHMIEL, Appellant, 2011 WL 5383019, No. 582 CAP (Nov. 9, 2011). This was an appeal from an order of Judge Nealon of the Court of Common Pleas of Lackawanna County, No. 83–CR–748, denying relief pursuant to the Post Conviction Relief Act. The attorney for the Appellant was James H. Moreno of the Capital Habeas Unit of the Defender Association of Philadelphia. The Justices were CASTILLE, SAYLOR, EAKIN, BAER, TODD, McCAFFERY, and ORIE MELVIN. Justice McCaffery wrote a 52 page Opinion affirming the lower court ruling. At the end of that Opinion, the Court states the following:

Having reviewed all of Appellant’s issues, and having concluded that all lack merit, we affirm the order of the PCRA court denying Appellant’s petition. Indeed, Appellant’s arguments, which have attempted to place a spotlight on alleged ineffectiveness of trial and appellate counsel, have only showed that Appellant had the significant benefit of highly competent, careful, forceful, and aggressive advocacy at both the guilt and penalty phases of his third trial.

With regard to this last point, we note, with regret and disfavor, that Appellant’s present counsel have chosen to raise several issues that are plainly frivolous and/or are based on excerpted portions of the relevant record, where the full record immediately reveals a far different perspective. A frivolous issue is one lacking in any basis in law or fact, but is distinguishable from an issue that simply lacks merit. Amaker v. Pennsylvania Bd. of Probation and Parole, 576 A.2d 50, 51 (Pa.1990); Smith v. Pennsylvania Bd. of Probation and Parole, 574 A.2d 558, 562 (Pa.1990).

For brevity, we single out Appellant’s counsel’s arguments in Issues 8 and 9. In Issue 8, regarding trial and appellate counsel’s alleged ineffectiveness with regard to the striking of 27 venire persons, current counsel presented argument without disclosing a full and candid factual background, which, once considered, made plain that the ineffectiveness claim against trial counsel was unmistakably frivolous for at the very least fifteen of these venire persons. In Issue 9, regarding alleged inflammatory testimony and improper “vouching” brought forth by the prosecution to prove an aggravating factor that the jury did not find, current counsel asserted a re-dressed, previously litigated and rejected claim. However, counsel’s present argument plainly lacks a basis in law, largely ignores “the elephant in the room” that the jury rejected the prosecutor’s attempt to prove the aggravator, and baldly asserts, without any form of substantiation, that Appellant has been prejudiced.

We strongly admonish counsel that “[a] lawyer … has no duty, indeed no right, to pester a court with frivolous arguments, which is to say arguments that cannot conceivably persuade the court….” Smith, supra at 563 (quoting McCoy v. Court of Appeals, 486 U.S. 429, 436 (1988)). Additionally, we remind counsel of an admonishment made by this Court in a previous PCRA capital appeal:

In view of the multitude of specious arguments, previously litigated issues, and assertions contradicted by the facts of record in this appeal, we deem it necessary to remind Appellant’s PCRA counsel that there exists a duty not to pursue baseless claims or frivolous issues. See Rule 3.1 the Rules of Professional Conduct; cf. Rule 2744 of the Rules of Appellate Procedure (appellate court may award reasonable counsel fees and delay damages if it determines that an appeal is frivolous); Smith [, supra ] (appellate court had the power to assess attorney’s fees against court-appointed counsel who had filed a frivolous appeal). It is apparent that prior counsel was mindful of this duty in choosing not to appeal every adverse ruling or decision.

Commonwealth v. DeHart, 650 A.2d 38, 47 n. 10 (Pa.1994).

PCRA capital counsel do their clients no service by inventing specious reasons to attack stratagems of trial and appellate counsel that were reasonably made and pursued, and the waste of public resources caused by counsel’s pursuit of specious arguments will not be tolerated. The gravity of a capital case does not relieve counsel of their obligation under Rule 3.1 of the Rules of Professional Conduct not to raise frivolous claims. See Commonwealth v. Morales, 701 A.2d 516, 527 n. 28 (Pa.1997).FN45 We warn counsel that appropriate measures will be recommended when counsel has violated or ignored its obligations under our Rules of Professional Conduct.

FN45. We note that Rule 3.1, as further explained in its Explanatory Comments, relaxes in criminal cases the requirement of raising only meritorious contentions so that the defense may require the prosecution to prove every element of the crime even where there is no non-frivolous basis for a defense. Such is not the case in the examples mentioned above, nor does this Rule relax the requirement that an attorney in a criminal appeal present the full factual background and legal bases of an issue with candor.

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch


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