Com. v. Friedenberger, M. (dissenting memorandum)
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J-S01028-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MICHAEL FRIEDENBERGER Appellant No. 1054 WDA 2013 Appeal from the Judgment of Sentence March 22, 2013 In the Court of Common Pleas of Blair County Criminal Division at No.: CP-07-CR-0001715-2006 BEFORE: FORD ELLIOTT, P.J.E., BOWES, J., and WECHT, J. DISSENTING MEMORANDUM BY WECHT, J.: FILED MAY 01, 2014 1 From the inception of this case, Senior Deputy Attorney General David C. Gorman, Esq., ( questionable action2 in this case: negotiations, and stood silent Deputy Gorman participated in plea before the trial court, while Michael ____________________________________________ 1 Pennsylvania Rule of Professional Conduct 3.8, Commonwealth v. Eskridge, 604 A.2d 700, 701 (Pa. 1992). 2 See infra, at 4-7. Comment; J-S01028-14 Deputy Gorman knew that three of the material witnesses to those crimes had died. Deputy Gorman did not disclose the deaths of these witnesses to Friedenberger, Friede by concluding, for the first time in Pennsylvania, that the death of a material witness does not constitute exculpatory evidence for purposes of the Brady v. Maryland, 373 U.S. 83 (1963). The Majority reaches this conclusion without analysis of any of the principles espoused in the litany of Pennsylvania decisions that have examined the parameters of Brady. Instead, the Majority relies solely upon one case, and a foreign one at that: People v. Jones, 375 N.E.2d 41 (N.Y. 1978), a New York decision rendered over thirty-five years ago and never cited by a single court in Pennsylvania.3 Although I generally am loathe to criticize the court that, in a bygone era, gave us much of the wisdom of Justice Benjamin Cardozo,4 Jones ____________________________________________ 3 Indeed, in the thirty-five years since its issuance, Jones has been cited outside New York on only two occasions, in both cases for the general and non-controversial propositions that courts are reluctant to void pleas after sentencing, see United States v. Reyes Acosta, 334 F.Supp.2d 1077, 1081 n.1 (N.D.Ill. 2004), and that a criminal defendant is not entitled See In re Hatfield, 390 N.E.2d 453, 462 (Ill. App. 1st Dist. 1979). 4 See, e.g., Ultramares v. Touche, 174 N.E. 441 (N.Y. 1931); Palsgraf v. Long Island Rail Road Co., 162 N.E. 99 (N.Y. 1928); Berkey v. Third Ave. Railway, 155 N.E. 58 (N.Y. 1926); Hynes v. New York (Footnote Continued Next Page) -2- J-S01028-14 warrants no persuasive value, and certainly should not control this case. I ose the death of the three material witnesses violates both the mandate of Brady and at least one of our Rules of Professional Conduct. Furthermore, I cannot reasonably , intelligent, and voluntary, when Friedenberger did not know that Deputy Gorman was without three material witnesses, a circumstance of ignorance arising solely from Deputy otherwise, I respectfully, but emphatically, dissent. This is the second appeal in this case. Like the first, this appeal raises of a full and accurate depiction of this case, it is important to detail the factual and procedural events from the beginning. Friedenberger, his wife Lynette Friedenberger, and Pamela Cross collectively were charged with dealing in proceeds of unlawful activity, conspiracy to commit same, conspiracy to commit receiving stolen property, and multiple counts of corrupt organizations. In addition to these charges, Friedenberger alone was charged with additional counts of receiving stolen property, criminal use of a communication facility, retail theft, solicitation to (Footnote Continued) _______________________ Central Railroad Co., 131 N.E. 898 (N.Y. 1921); and MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916). -3- J-S01028-14 the business was supposed to buy and then resell products on eBay for a profit. However, from 2001 until 2005, Friedenberger performed this function with stolen goods. It was alleged that Friedenberger, with the assistance of his wife and Pamela Cross, would enlist various individuals, many of whom were drug addicts and thieves, to steal the items that he then would put up for resale on eBay. It was further alleged that Friedenberger knew at all times that the items that were brought to him for resale in fact were stolen. Friedenberger would pay the thieves and addicts for their illicit assistance, which, in turn, would fund their addictions. The charges against consolidated for a jury trial. Friedenberger, his wife, and Cross were The individuals who stole goods and turned them over to Friedenberger were recruited by the Commonwealth as that the credibility of the Commonwealth witnesses was central in the if these witnesses were believed, it is fair to say that if a jury concluded there was no sale of stolen property to Friedenberger their acquittal would Id. Accordingly, sixteen months before the jury trial commenced, Friedenberger filed a motion for discovery, which included the following requests: -4- J-S01028-14 (a) Any evidence favorable to the accused which is material to guilt or punishment; *** (m) Whether the defendant and any intended Commonwealth witness has any arrest or conviction record whatsoever whether federal, state or local, and the nature of the offense; *** (q) Copies of any and all arrangements, consideration, plea agreements, and the like between the Commonwealth, Pennsylvania State Police or any other law enforcement agency with said agencies in this case; (r) - (s) The prior criminal record of all witnesses Commonwealth intends to call at the time of trial. the Id. at 3-4. After Deputy Gorman apparently made no effort to comply with of 2006 requesting among other things any and all criminal records of the witnesses that the Commonwealth intends to call at trial, any arrangements, Id. at 4 (citing e motion to compel, the trial court entered the following order, in pertinent part: AND NOW, this 16th day of July, 2007, the matter having come before the court on jury selection day and after oral argument -5- J-S01028-14 held this date, it is ORDERED, DIRECTED and DECREED as follows: 1. [Defense counsel] shall turn over to [Deputy Gorman] the list of names of which he is speaking to determine whether a plea agreement exists with the Commonwealth. [Deputy Gorman] shall search the records of the State Attorney General and the Blair individuals to determine whether there is any plea agreement. If there is, [Deputy Gorman] must turn it over to [defense counsel] forthwith. 2. The Commonwealth is not required to submit plea agreements in regards to the individuals that are dated before 2003. *** Id. (quoting Order, 7/16/2007). The trial court observed that its order was agreements regarding those individu Id. at 4-5. Still, Deputy Gorman persisted in flouting his discovery obligations. Rather than comply, Deputy Gorman revealed to the defense only those plea agreements with the witnesses that were related directly to Friedenberg criminal scheme. Deputy Gorman did not disclose all of the agreements that dated back to 2003. The jury trial commenced thereafter. During the course of the trial, it was revealed that Deputy Gorman had failed to disclose a total of forty-three other relevant plea agreements. The trial court order prejudiced Friedenberger, his wife, and Cross. Accordingly, the court was compelled to discharge the jury. -6- J-S01028-14 Friedenberger then filed a motion to have the charges against him dismissed on the basis of double jeopardy. After a hearing, the trial court they were not intentional. As such, the trial court denied Fried motion. Friedenberger appealed to this Court. In an unpublished memorandum, a three-judge panel of this Court nel majority agreed with the trial court that Deputy Gorman did not deliberately engage in egregious misconduct that specifically was designed to deprive Friedenberger of a fair trial. Commonwealth v. Friedenberger, No. 1166 WDA 2010, slip op. at 11 (Pa. Super. June 22, 2011). One member of the questionable behavior was deliberate and designed to deprive Friedenberger of a fair trial. The dissent would have concluded that the constitutional principles of double jeopardy barred a retrial. Id., dissenting slip op. at 8. negligence did not warrant dismissal of the charges against Friedenberger, it left little doubt that his actions were improper, and in direct violation of a court order. Unfortunately, Deputy Gorman did not learn a lesson from the judicial treatment of his first act of impropriety. After the case returned to the trial court for disposition from this Court, Deputy Gorman at some point learned -7- J-S01028-14 that three of Friedenberger the had material died. witnesses that Undoubtedly were based to upon testify this against evidentiary development and his exclusive knowledge thereof, Deputy Gorman offered to drop all of the charges against Friedenberger, his wife, and Cross, except for one count of receiving stolen property and one count of conspiracy to commit same against Friedenberger. Unaware that three Commonwealth witnesses had died, Friedenberger appeared before the trial court, pleaded no point did Deputy Gorman disclose to Friedenberger, his counsel, or the trial court that the aforementioned witnesses had died. Friedenberger was deprived of a fair opportunity to evaluate the strength of the able to ascertain whether there was a sufficient factual basis to accept the plea. Deputy Gorman simply stood silent. Apparently, Deputy Gorman was unmoved by his ethical, and in my view legal, obligation to disclose this critical information to Friedenberger or the trial court at or before the time of the plea, but he was inclined to discuss the matter when contacted later by a reporter from a local newspaper. When asked why the case ended in the manner in which it did, which was a significant deviation from the case as it originally was charged, Deputy Gorman informed the reporter that three of his essential witnesses had died. Upon learning of this information, Friedenberger filed a motion to -8- J-S01028-14 withdraw his guilty plea. The trial court declined to hold a hearing, and ilty plea; rather, the decision to grant such a motion lies within the sound discretion of Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa. Super. 2002) (citation omitted). As the Majority correctly notes, a trial court should only grant a motion to withdraw a guilty plea after sentencing upon a Id. (citing Commonwealth v. Carpenter, 725 A.2d 154, 164 (Pa. 1999)). rises to the level of manifest injustice when it was entered into involuntarily, Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999) (citation omitted). To make this assessment, we must evaluate the totality of the circumstances. Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009). The Majority properly recites this standard, and ultimately concludes voluntarily. The Majority ultimately concludes that no rule in Pennsylvania imposed a duty upon a prosecutor to disclose the death of material witnesses to the defense before engaging in plea negotiations. Mem. at 13. See Maj. Absent this duty, the Majority seemingly concludes that Friedenberger cannot establish manifest injustice. I respectfully disagree. -9- J-S01028-14 reference to, or any discussion of, any of the cases in Pennsylvania that address Brady the cases that expound upon that mandate. The Majority notes only that no Pennsylvania case or rule addresses precisely the situation that occurred in this case, and, consequently, relies solely upon Jones, a New York case that does not bind, and has never resonated, in Pennsylvania.5 In my view, the present matter readily can be resolved by straightforward application of the basic Brady beyond our borders or our precedents to find a resolution. Before discussing Brady that such a discussion is jurisprudentially improper. The Majority discusses Jones in great detail. See Maj. Mem. at 7-8. Moreover, the Majority, at least in part, relies upon Jones in reaching its conclusion that Appellant should not be permitted to withdraw his guilty plea. Id. unlike Jones However, the Majority also recognizes that Jones was decided after Brady, and avowedly was required (at least) to distinguish it. See id. at 7-8. ____________________________________________ 5 See , - 10 - J-S01028-14 consider Jones, and yet not the bedrock Brady case or the principles upon which that case was decided. I do not believe that our jurisprudential rules require such a limited consideration of precedent. Moreover, it is entirely incongruent to utilize Jones in support of affirmance, even though Jones is not binding in Pennsylvania, and nonetheless simultaneously to refuse to consider the backdrop of the controlling and seminal Brady rule and its progeny, against which backdrop Jones ostensibly was developed. Jones and Brady are inextricably linked, and consideration of one necessitates consideration of the other. If, as the Majority claims, Brady is not part of this case, then any discussion of Jones is equally improper. The Majority does not merely discuss Jones as part of the procedural backdrop cussion of Jones occurs after the recitation of the standard of review, and following summarization of the Majority also relies upon Jones in reaching its ultimate conclusion. The Majority has placed Jones directly at issue here; as a result, consideration of Brady is necessarily at the heart of this case. The Majority assails my use of Brady because Appellant himself does not raise Brady or any of the other cases that I cite below. H reliance upon the Brady-defying Jones that necessarily requires my discussion of Brady and its progeny; my analysis is not controlled by any Brady argument, or lack thereof, proffered by Appellant. - 11 - J-S01028-14 Recently, in Commonwealth v. Feese, 79 A.3d 1101 (Pa. Super. 2013), we explained the general parameters of Brady as follows: In the landmark case of Brady v. Maryland, 373 U.S. 83 suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good Id. at 87. The Brady rule is not limited exclusively to directly exculpatory evidence. Because the reliability of a witness may ultimately affect a finding of guilt or innocence, the Brady mandate also encompasses impeachment evidence. See U.S. v. Bagley, 473 U.S. 667, 677 (1985). Thus, the Supreme Court of the United Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Id. at 1106 (citations modified). In Commonwealth v. Ly, 980 A.2d 61 (Pa. 2009), our Supreme Court provided a more expansive discussion of the essential elements of Brady: Under Brady Brady violation, a defendant is required to demonstrate that exculpatory or impeaching evidence, favorable to the defense, was suppressed Commonwealth v. Gibson, 951 A.2d 1110, 1126 (Pa. 2008). The burden of proof is on the defendant to demonstrate that the Commonwealth withheld or suppressed evidence. See Commonwealth v. Porter, 728 A.2d 890, 898 (Pa. 1999). The required to deliver his entire file to defense counsel, but only to - 12 - J-S01028-14 disclose evidence favorable to the accused that, if suppressed, United States v. Bagley, 473 U.S. 667, 675 (1985) (footnote omitted). such that it does not provide a general right of discovery to defendants. See Commonwealth v. Counterman, 719 A.2d 284, 297 (Pa. 1998). Moreover, we have held that the prosecution is not obligated to reveal evidence relating to fruitless leads followed by investigators. See Commonwealth v. Crews, 640 A.2d 395, 406 (Pa. 1994). Gibson, 951 A.2d at 1126-27. [M]ateriality extends to evidence affecting the credibility of witnesses, rather than merely to purely exculpatory evidence. See Giglio v. United States, 405 U.S. 150, 154 aff we have held that the protection of Brady extends to the to formulate trial strategy. See Commonwealth v. Green, 640 A.2d 12 have had not only the presentation of the defense at trial, but is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (internal quotation marks omitted). Ly, 980 A.2d at 75-76 (citations modified). The Majority effectively addresses none of these principles. Even a cursory consideration of the above passages compels the conclusion that the failur crimes is a patent violation of Brady. - 13 - There is no question that this J-S01028-14 made to the contrary. A simple hypothetical will establish this point beyond peradventure. Consider a defendant who is charged with simple assault for punching another person in the stomach in the restroom of a bar. The only witness to the assault is the victim. If that witness dies before trial, the Commonwealth will have no other means to prove its case beyond a reasonable doubt. There can be no doubt that the death of that witness is favorable to the accused. Indeed, it is fair to state that this is the most favorable information that the lights, the prosecutor in this hypothetical could proceed willy-nilly to encourage the assailant in that case to plead guilty to the assault without ever divulging (and while actively concealing) that the sole witness is dead, conclusion betrays any reasonable, or common-sense, understanding of the 6 ____________________________________________ 6 The Majority criticizes the fact that none of the cases that I cite in support of my Brady analysis stand for the proposition that the death of a Brady purposes. In my view, such an analysis is unnecessary. It is axiomatic that the death of a witness is the type of material included within the scope of Brady of a witness results in the absence of evidence. There is no meaningful distinction between the death of a witness and, for example, a lab report that reveals that alleged narcotics in fact were not narcotics at all. No reasonable argument can be made that a prosecutor would not have to disclose to the defense that the narcotics for which a defendant is charged as having possessed turned out to be a non-contraband substance. In other words, the prosecutor would be obliged to disclose that absence of evidence. The absence of evidence created by the death of a material witness requires the same result. - 14 - J-S01028-14 There also is no doubt in my mind that the death of these three witnesses was material for Brady purposes. As the United States Supreme Court noted in Whitley error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, Whitley, 514 U.S. at 433- ne Bagley, 473 U.S. at 682. Undoubtedly favorable to Friedenberger, the deaths of these three material witnesses also created the very reasonable probability that Friedenberger would not have entered a guilty plea to the two offenses. Indeed, it is hard to believe that case was substantially, if not fatally, weakened by the loss of three material deaths of this case. Thus, in my view, there is no question that the death of a material witness to a crime is both exculpatory and material for Brady purposes. Indeed, to hold otherwise would create an anomaly, and, frankly, an absurdity. Consider the well-settled principle that, under Brady, a prosecutor is duty-bound to disclose impeachment evidence. If we relied solely upon the holding in Jones, as the Majority seemingly does, a prosecutor would have to disclose to a defendant (1) that a witness has a - 15 - J-S01028-14 has made prior inconsistent statements, and (3) other impeaching material, but would not have to inform the same defendant that the same witness is in fact dead and no longer able to testify at trial. For the Majority, the defendant constitutionally is entitled to prepare to cross-examine a material witness, but not to know that the witness no longer exists. I cannot accept this anomaly as a viable principle of law. Jones does not alter my analysis. Jones is not binding on this Court, nor upon any Pennsylvania court. See Penna., supra. Given the absence of such binding effect, we must decide as a court what persuasive effect, if any, Jones should have in this case. In my view, it should have none. In Jones, the Court of Appeals of New York held that the death of a material witness to a robbery was not exculpatory evidence for Brady purposes. With no Brady analysis to speak of, the court instead characterized the death information as being relevant only to tactical decision-making, and not to the legal issue of guilt. N.E.2d at 43. Jones, 375 For the Jones Id. at 44. These antiquated legal conclusions of a foreign forum should have no bearing upon our decision in Pennsylvania today. Notably, the Jones Court, in declaring that the case was not controlled by Brady, failed to cite a single passage from Brady, and did not have the - 16 - J-S01028-14 benefit of the decades of development of the Brady doctrine that we have at our disposal today. The premises relied upon by the Jones Court are squarely at odds with the core principles that underlie Brady, and those that have derived directly from Brady. It is those principles that drive my conclusion that a prosecutor has a duty to disclose the death of a material witness before engaging in plea negotiations with a criminal defendant. Jones is not merely inconsistent with our notions of due process and a fair trial; its importation into our Commonwealth and engraftment onto our law affirmatively undercuts those principles. In Jones concern of the criminal justice system, of course, is that an innocent defendant shall not be convicted; not that a possibly guilty actor shall Id. at 44. From this statement, it appears that the Jones Court would have reached a different result had the defendant maintained his innocence through the same rationale. See Jones, whereby the New York Court of Appeals sought to create two categories of law, one for the guilty and one for the innocent, offends our system of justice. We afford the same rights, benefits, and opportunities to all who find themselves charged with a crime, the guilty and innocent alike. The guilty enjoy the full panoply of constitutional rights, and fair treatment, and not only because - 17 - J-S01028-14 our Constitution demands it; our law protects the rights of the guilty steadfastly in order to ensure that the system operates fairly when an innocent person finds himself wrongly charged with a crime. The Constitution and laws of Pennsylvania demand integrity of process; they do not countenance a crass jurisprudence of results. If we extract anything of value from Jones, it should be its invocation of Justice George Suth Appeals quoted and then proceeded to ignore: representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to Id. at 43 (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). I cannot reconcile the Jones Cou reached by that court. Berger with the decision To encourage a guilty plea, knowing that the testify, as was the case here, without disclosing that information to the defendant, is the epitome of a foul blow. Such an act of willful omission is an act of trickery and deceit, and unquestionably an improper method - 18 - J-S01028-14 calculated to produce a conviction at all costs. For these reasons, I would assign no persuasive value to Jones. involved in this case, and that the death of the three witnesses potentially 7 The Majority offers no factual support for this conclusion. The Majority does not identify these witnesses, nor does the Majority discuss how, or if, these witnesses could establish proof of all of the elements of the crimes to which Friedenberger pleaded guilty beyond a reasonable doubt. Indeed, based upon the record before us, it is not clear which witnesses have died, whether those witnesses testified in the original jury trial, and, if they did testify, whether that testimony could be used in a subsequent trial. It may be that, ____________________________________________ 7 In its brief, the Commonwealth vehemently rejects the contention that the death of the three witnesses rendered it incapable of proving its case beyond a reasonable doubt. Like the Majority, the Commonwealth claims case. However, also like the Majority, the Commonwealth does not support this assertion with any facts. The Commonwealth does not inform this Court which witnesses died, what information those witnesses would have provided, which witnesses remain, and how the remaining witnesses could prove its case against Friedenberger. Without such information, I simply cannot conclude that the death of the witnesses did not significantly hinder More importantly, as discussed infra, the more troubling aspect of the arguendo that the death of the witnesses did not prevent the Commonwealth from proving its case, but rather the application of the new rule to future cases where the death of a witness unequivocally prevents the Commonwealth from proceeding. - 19 - J-S01028-14 in this case, the witnesses who have died were the only three that could establish proof beyond a reasonable doubt, and that they did not testify in the original trial. Or, it could be the case, as the Majority suggests, that these witnesses were material witnesses, but that their deaths were not the record before us, we simply do not know how the deaths of these such, there is no factual basis upon which the Majority could conclude that If the Majority is weakened, there may be some who find tod are a common law court. One would not find such a result as tolerable in the case where the only witness to the crime dies, and the Commonwealth is legally incapable of proving its case. If prosecutors are permitted to withhold the fact that a material witness to a crime has died from the defense, such a ruling would not only permit, but, in fact, would encourage prosecutors intentionally to conceal the truth about their ability to prove a case. I cannot subscribe to a holding that so blatantly endorses and thereby fosters willful deceit, and that contravenes all notions of fair play and due process. Based upon a straightforward application of the Brady principles that are well-established in Pennsylvania case law, I would hold that a prosecutor is duty-bound to disclose the death of a material witness to the defense. - 20 - J-S01028-14 The evidence is both exculpatory and mandatory, and disclosure of the information is the only result that comports with due process. However, let us pause now to assume, arguendo result is correct, and that we need not, and should not, consider Brady as part of our analysis in this case. I would nonetheless persist in the view that a manifest injustice would result if Friedenberger was not permitted to withdraw his plea. As noted earlier, manifest injustice in this context typically results when a defendant demonstrates that his plea was not knowing, intelligent, or voluntary. Indeed, a Brady violation is not the only avenue to sati knowing, intelligent, or voluntary. And this is for one simple reason: the plea was predicated upon a willful misrepresentation. A plea offer from the Commonwealth, particularly one that involves either the withdrawal or reduction of the charges or a significant downward departure in the expected sentence, inherently constitutes an inducement to the defendant to plead guilty. When such an offer is extended, an acceptance can only be valid, i.e., knowing, intelligent, and voluntary, if the against him. The defendant can make this assessment only from the information available to him at the time, which includes, inter alia, the police and his own investigation. In fair and just negotiations, a defendant can, and must, rely upon this information as being the entirety of the information - 21 - J-S01028-14 necessary to reach the important decision to plead guilty. However, when only the Commonwealth knows that this body of information substantially has changed, particularly when it changes to the benefit of the defendant, but the Commonwealth fails to inform that defendant of the events causing the change, any plea based upon the incomplete body of information necessarily is the result of misrepresentation. That is precisely what occurred here. See Bousley v. United States, 523 U.S. 614, 619 (1998) threats . . ., misrepresentation . . ., or perhaps by promises that are by (quoting Brady v. United States, 397 U.S. 742, 757 (1970) (emphasis added)). Again, assuming, arguendo, that the Majority is correct that Deputy Gorman was not duty-bound to disclose the information under Brady, the plead guity. In his motion to withdraw his guilty plea, Friedenberger Motion to Withdraw Guilty Plea, 4/3/2013, at 2 ΒΆ8. Although we do not know which witnesses died, and whether Deputy Gorman could prove the charges to which Friedenberger pleaded guilty without those witnesses, at a minimum gave the misleading impression that his case had not changed from the first time the matter was - 22 - J-S01028-14 tried. There is no substantive distinction between a material omission and an affirmative misrepresentation. Friedenberger averred that he relied upon to plead guilty. Id. The decision to plead guilty is perhaps the most critical decision that a criminal defendant can make, primarily because pleading guilty requires a defendant to relinquish most of the constitutional rights that are associated with a criminal trial, including the presumption of innocence, the right to a trial by jury, and the right to confront the witnesses against him. Because these rights are essential to due process and a fair trial, we require that the defendant waive them knowingly, voluntarily, and intelligently. The defendant cannot do so without a true and honest depiction of the plead guilty based upon his incorrect belief that the strength of the Comm inconceivable to believe that Friedenberger could have knowingly waived his constitutional rights, and entered a valid guilty plea, when he did not know that three of the material witnesses against him had died, and that the The Majority focuses upon the fact that Friedenberger completed both a written colloquy and an oral colloquy with the trial judge. This much is true. But it is beside the point. While both of the colloquies explained to Friedenberger the rights that he was giving up by pleading guilty, neither could or did inform him that there was a distinct possibility that Deputy - 23 - J-S01028-14 Gorman could not prove the charges against Friedenberger beyond a reasonable doubt. Only Deputy Gorman had that information, and he made the choice to keep it to himself. This choice must have a consequence. The colloquies could not render the plea knowing, intelligent, or voluntary, because they were tainted by voluntary, or intelligent because Friedenberger intentionally was deprived of all of the information that absolutely was necessary to decide whether pleading guilty and waiving his constitutional rights was in his best interests. The Majority finds no manifest injustice, because it concludes that the death misses the point. This was instance, this was information to which Appellant was entitled so that his See Commonwealth v. Diehl, 61 A.3d 265, 268 (Pa. Super. 2013), appeal denied Appellant was denied that opportunity. Worse, Appellant now is being validated by means of judicial compulsion binding him to his uninformed guilty plea. In my view, a guilty plea that is induced by misrepresentation through material omission constitutes a manifest injustice. It beggars belief that Pennsylvania law could hold otherwise. - 24 - J-S01028-14 Finally, I note violating, at least one provision in our Rules of Professional Conduct. 8 Rule timely disclosure to the defense of all evidence or information known to the prosecutor that tends to It is obvious to me that the death of three material witnesses falls within the parameters of this rule. Id. It does not matter whether the information actually negates or mitigates the offense. The rule requires disclosure even if the information tends to do so. Deputy Gorman was not faithful to this rule, and, as a result, Friedenberger entered a plea that was not knowing, intelligent or voluntary. In sum, I believe that the death of a material witness constitutes exculpatory evidence for Brady Brady violation prejudiced Friedenberger at the level of manifest injustice in this case. Additionally, even if Deputy Gorman was not duty-bound by Brady to reveal the information, the failure to do so nonetheless resulted in an unknowing, ____________________________________________ 8 Rule 3.8(a) of our Rules of Professional Responsibility mandates that a knows is not supported by not clear whether the remaining witnesses could have provided sufficient testimony to prove the charges to which Friedenberger pleaded guilty beyond a reasonable doubt. To the extent that they could not, Deputy Gorman would have violated this rule as well. - 25 - J-S01028-14 involuntary, and unintelligent plea. I would conclude that the trial court sentence, and remand for further proceedings. Because the Majority concludes otherwise, I dissent. - 26 -
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