author: OLSZEWSKI, Judge:

text:
    523 A.2d 357
    COMMONWEALTH of Pennsylvania, Appellee, v. Ronald MAYS, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Jeffrey L. BLAND, Appellant.
    Superior Court of Pennsylvania.
    Argued and Submitted Nov. 20, 1986.
    Filed March 23, 1987.

      F. Emmett Fitzpatrick, Jr., Philadelphia, for Mays, appellant in No. 1076.
    Edmund E. DePaul, Philadelphia, for Bland, appellant in No. 1162.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee in No. 1162.
    Maxine Stotland, Philadelphia, for Com., appellee in No. 1076.
    Before CAVANAUGH, OLSZEWSKI, and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from judgments of sentence imposed after appellants Mays and Bland were convicted of second degree murder, robbery, and conspiracy. Appellant Mays presents several issues for our review: (1) whether the incriminatory statements of his co-defendant were properly admitted; (2) whether it was proper to introduce evidence of his post-arrest silence; and, (3) whether the court erred in refusing to discharge the jury after they admitted they were deadlocked. Appellant Bland claims his trial was commenced in violation of Pa.R.Crim.P. 1100. Both appellants claim the court erred in declining to charge the jury on the offense of voluntary manslaughter. We find that neither appellant has established an entitlement to relief; accordingly, the judgments of sentence are affirmed.

On February 17, 1984, appellants entered the decedent’s apartment in Philadelphia and demanded that the victim “give up the stuff.” When the victim denied having any “stuff,” Mays kicked him in the chest while Bland, holding a gun, threatened to kill the victim if he moved. After a continued struggle, Bland kicked the victim and Mays directed Bland to “just kill him.” Bland then shot the victim and both men fled. Mays and Bland were arrested on February 20, 1984. Following their convictions, post-verdict motions were denied and appellants were sentenced to mandatory terms of life imprisonment for murder in the second degree. In addition, Mays was given a concurrent term of two and one-half to five years for conspiracy and Bland received a term of two and one-half to five years for possession of an instrument of crime and conspiracy.

Appellant Mays first challenges the admission of co-defendant Bland’s incriminating statements. We decline to address the merits of this issue as appellant Mays has not preserved it in his written post-trial motions. See Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) (only those issues included in written post-verdict motions are preserved for appeal).

Appellant Mays next contends that the court improperly allowed the Commonwealth to introduce evidence of his post-arrest silence. The Commonwealth had called a rebuttal witness, Sgt. Joseph Leonardo of the Reading Police Department, who testified that he had taken both appellant and his co-defendant into custody. The officer also testified that appellant refused to give a statement after being advised of his Miranda rights. (R.R. 346a, N.T. 609). Immediately following the officer’s remarks, the prosecutor requested a sidebar conference to explain that the witness had stated prior to trial and in the presence of two other officers, that appellant had expressed a willingness to give a gost-Miranda statement. (R.R. 346a-353a, N.T. 609-616). The prosecutor expressed surprise at the officer’s remark, noting that it was inconsistent with his prior statements, and stressed that she wished to downplay the incident in front of the jury. (R.R. 347a, 352a, N.T. 610, 615). The court excused the panel, and counsel examined a witness who was present when the prosecutor interviewed Sgt. Leonardo. Contrary to Sgt. Leonardo’s testimony, the witness testified that appellant indicated a desire to make a post-arrest statement. (N.T. 620). Immediately thereafter, the Commonwealth withdrew the first officer as a witness and the court struck his testimony from the record. Id. The court then issued the following instruction to the jury:

Based upon the motion, you are to completely disregard whatever that witness stated on the witness stand as to who the witness believed on the stand because the Commonwealth is withdrawing that witness from your consideration.

(N.T. 620-621).

Appellant argues that his constitutional rights were violated by the officer’s reference to his post-arrest silence. Appellant is correct insofar as he claims that a reference at trial to an accused’s post-arrest silence is a constitutional violation. See Commonwealth v. Gbur, 327 Pa.Super. 18, 24, 474 A.2d 1151, 1154 (1984), citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1986) and Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978). As this Court noted in Gbur, “(n)ot every reference, however, requires a new trial. Prompt and adequate cautionary instructions can cure what might otherwise be reversible error.” Gbur, 327 Pa.Super. at 24, 474 A.2d at 1154. A four-factor test is used to determine whether cautionary instructions have cured such an error: “1) the nature of the reference to the defendant’s silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness and adequacy of the cautionary instruction.” Id. (citations omitted). Using the four-factor test of Gbur, we find that the officer’s statement here referring to appellant’s silence was so cured.

First, we note that the officer made a direct reference to appellant’s unwillingness to give a statement. We recognize that such a reference was prejudicial. See Gbur, 327 Pa.Super. at 23, 474 A.2d at 1154 (testimony by officer that defendant did not want to talk was prejudicial). In assuming the degree of prejudice, we note, however, that the Commonwealth withdrew the officer as a witness and his testimony was stricken from the record. (N.T. 620).

Second, the reference to appellant's silence was totally unexpected and inadvertent. The officer was called to testify that appellant and the co-defendant were taken into custody on February 20, 1984. The prosecutor merely questioned the officer’s actions in arresting appellant when the officer stated that appellant was unwilling to give a statement. (N.T. 609). We do not view such a statement, which seems to have been added as an afterthought to complete a prior response, as intentionally elicited.

Third, the prosecutor’s conduct reinforces our determination that the effect of this statement was minimal. Immediately after the officer made the reference to appellant’s silence, the Commonwealth requested a sidebar conference. The prosecutor explained to the court that the officer had informed her prior to trial and in the presence of two witnesses, that appellant was willing to make a statement. The prosecutor stressed that the officer’s testimony at trial was unexpected and not deliberately elicited by the Commonwealth. (R.R. 346a-347a). The prosecutor's representations as to the officer’s pre-trial statements was corroborated by the in-camera testimony of the witnessing detective who stated that at the pre-trial interview with the prosecutor, appellant Mays indicated he understood his rights and was willing to make a statement. (N.T. 619-620). Given this corroborative testimony, we cannot conclude that the prosecutor intended to elicit the prejudicial remark.

Finally, we note that the prosecutor made no attempt to exploit the situation. Rather, the Commonwealth moved promptly to have the jury recessed and to cure the prejudicial effect of the statement. Indeed, even though the court stated its intention to issue a curative instruction, the Commonwealth withdrew its witness. Promptly thereafter, the court instructed the jury to “completely disregard the testimony of the officer.” (N.T. 620-621). In giving such a blanket instruction shortly after the reference, and in carefully refraining from mentioning appellant’s right to remain silent, the court effectively precluded any further prejudice to appellant.

In short, we believe the inadvertent reference to appellant’s silence, although prejudicial, was promptly and adequately cured by the withdrawal of the witness and an instruction to totally disregard the officer’s entire testimony-

14] Appellants Mays and Bland next contend that the court erred in refusing to charge the jury on voluntary manslaughter. In regard to appellant Mays, we agree with the trial court that on the facts of this case, a charge on “heat of passion” voluntary manslaughter was not warranted. Mays’ theory of the case was that he and a friend visited the decedent on February 17, and then drove out of the city. In short, appellant claimed he had nothing to do with the murder. The Commonwealth presented an eyewitness who stated that Mays and Bland entered the decedent’s apartment and demanded that the latter “give up the stuff.” When the decedent denied having anything, Mays punched him while appellant Bland threatened to kill the eyewitness. When the decedent moved his hand toward his pocket, someone shouted that the decedent had a “piece.” The decedent protested that he had no weapon. After kicking the decedent, Mays told Bland to “just kill him.” Bland then shot the victim and both defendants ran from the building.

We fail to see how appellant Mays’ attack on the victim was brought about by serious provocation or such emotion as to render his mind incapable of reason. See generally Commonwealth v. Galloway, 336 Pa.Super. 225, 238-239, 485 A.2d 776, 783 (1984) (defining a “heat of passion” killing). There is simply no evidence on the record which triggers a question of “heat of passion” voluntary manslaughter.

Despite the absence of evidence that the killing occurred as a result of “heat of passion,” case law compels us to examine the merits of appellant May’s claim. In Commonwealth v. Jones, 457 Pa. 563, 573-574, 319 A.2d 142, 148, cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974), our Supreme Court held that “a defendant under indictment of murder will be entitled, upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter.” (emphasis in original). Although Jones was based upon a killing under the Penal Code of 1939, the rule of that case was extended to cover a murder brought under the Crimes Code of 1972, thus giving a defendant charged with murder the unconditional right to request an instruction on voluntary manslaughter under Section 2503(b). Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978). Upon reflection, the Supreme Court overruled Manning in Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), finding that the rule of Jones had no application under Section 2503(b), the “unreasonable killing” voluntary manslaughter. However, because the trial court in Carter instructed the jury as to a Section 2503(a), “heat of passion killing,” the Court did not determine whether a charge on Section 2503(a) need be given pursuant to that provision. Id., 502 Pa. at 441, 466 A.2d at 1331 n. 8. Hence, because Carter overruled Manning and, in turn, Jones, only as to the issuance of an instruction on Section 2503(b), we are obligated to apply the rule of Jones where a request for a “heat of passion” instruction has been made.

The remnants of Jones lead us to the conclusion that, upon request, and despite the absence of evidence to the contrary, the jury must be charged on “heat of passion” voluntary manslaughter. This the trial court failed to do. Such an error does not, however, mandate the grant of a new trial. In Jones, three Justices of our Supreme Court stated:

It is clear in this case that appellant did not suffer prejudice from the refusal of such an instruction in view of the jury’s decision to ignore their right to return a verdict of second degree. There is not the slightest reason to believe that the jury would have returned a verdict of voluntary manslaughter out of sympathy or in recognition of factors that they may have deemed mitigating where these factors were not sufficiently compelling to cause them to elect the lesser alternative that was offered.

Id., 457 Pa. at 574, 319 A.2d at 148 (footnote omitted). In the present case, the trial court instructed on first, second and third degree murder. The jury could have exercised a mercy-dispensing power and brought back a verdict of third-degree murder against Mays. Instead, the jury found Mays guilty of second-degree murder. We are therefore persuaded that Mays suffered no prejudice from the trial court’s denial of a request for charge on Section 2503(a), “heat of passion” voluntary manslaughter.

Nor are we persuaded that the court erred in refusing to charge on Section 2503(b), “unreasonable belief” voluntary manslaughter. The Supreme Court has held that such a charge shall be given only where: (1) the offense has been made an issue in the case; (2) the evidence would reasonably support such a verdict; and (3) where such a charge is specifically requested. Commonwealth v. Carter, 502 Pa. 433, 444, 466 A.2d 1328, 1333 (1983).

After reviewing the record, we find no evidence to support an “unreasonable belief” manslaughter charge as to appellant Mays. As we noted before, according to appellant’s theory of the case, he and a friend left the city and, thus, he had nothing to do with the murder. Moreover, the evidence presented at trial supports the Commonwealth’s theory that the killing took place during the course of a robbery. According to the record, the decedent was confronted and kicked by the appellants who demanded that the decedent “give up the stuff.” A struggle ensued during which time one of the defendants shouted that the victim had a weapon as the decedent went to reach into his right pocket. Appellant Bland then kicked the victim again and, when ordered by Mays to kill the victim, Bland did so. We fail to see how evidence that Mays and Bland were robbing the decedent could reasonably support appellant’s claim of an imperfect self-defense. Thus, we find no error in the trial court’s refusal to charge the jury on Section 2503(b) voluntary manslaughter.

Nor do we find error in the court’s refusal to instruct the jury on “unreasonable belief” voluntary manslaughter as to appellant Bland. In a written statement made by Bland while in custody, he claimed:

(Decedent) owed me $200 because I was selling drugs for him. Me and Blank (sic) went around to his apartment that night and asked when could I get my money. He had owed it to me for two weeks. He told me to hold up for a couple more days. Then we got into an argument. Then we got to throwing a couple of blows and that’s when he started reaching for his gun.
He kept the gun in his back behind him. When he reached back for it, I grabbed his wrist and we started tussling and it went off.
First, I shot him in the stomach and he fell down. Then I just kept shooting as I was reaching for the door because he wouldn’t let me out. Then I ran out the door, that’s when we left for Reading. It was a matter of self-defense.

(N.T. 441-442, R.R. 200a-201a) (footnote added).

We fail to see how the evidence could reasonably support a verdict of voluntary manslaughter. First, both the statement of Bland and the testimony of the Commonwealth’s eyewitness indicate that appellant went to the decedent’s apartment in order to get money and that an argument ensued over the money. The testimony of the medical examiner regarding the decedent’s injuries was consistent with that of the eyewitness’s account of the events. (N.T. 364). As noted above, this evidence supports the jury’s verdict of robbery and second-degree murder, not a self-defense claim.

Second, appellant’s statement while in custody does not necessarily put “unreasonable belief” manslaughter in issue. According to that statement the gun “went off” during the struggle. A claim that a weapon accidentally discharged during a struggle is, however, insufficient to support a theory of imperfect self-defense. Carter, 502 Pa. at 442, 466 A.2d at 1332. Thus, because the evidence supports a finding of robbery and because appellant’s statement does not put self-defense in issue, appellant was not entitled to a charge on Section 2503(b).

Appellant Mays’ final contention challenges the court’s refusal to grant a mistrial after the jury admitted it was deadlocked. We have carefully reviewed the record, the case law and appellant’s argument and, for the reasons given by the trial court, are satisfied the court did not err in refusing to grant a mistrial.

Finally, appellant Bland asserts that his trial was commenced beyond the 180 day mandate of Pa.R.Crim.P. 1100. We decline to address the merits of this claim as appellant has failed to preserve the issue in a post-verdict motion. See Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) (only those issues included in written post-verdict motions preserved for appeal).

Judgments of sentence affirmed.

      . Although appellant Mays purports to challenge the admissibility of the statement regarding his post-arrest silence, the claim of error is more properly before this Court as a challenge to the denial of appellant’s motion for a mistrial.

      . Sec. 2503. Voluntary manslaughter
      (a) General rule. — A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
      (1) the individual killed; or
      (2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
      (b) Unreasonable belief killing justifiable. — A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.
      (c) Grading. — Voluntary manslaughter is a felony of the second degree.
      18 Pa.Cons.Stat.Ann. Sec. 2503 (Purdon’s 1983). In short, the crime of voluntary manslaughter is defined in two ways. Section 2503(a) defines the traditional voluntary manslaughter, a “heat of passion” killing, while Section 2503(b) provides for an "unreasonable belief” voluntary manslaughter.

      . Appellant’s proposed jury instructions were not made part of the record. We are, thus, unable to discern whether the requested charge was based upon Section 2503(a) or (b). We note, however, that in excepting to the charges, appellant argued as follows:
      (Counsel for appellant): And I ask for a voluntary manslaughter charge as well as we indicated to the Court that there was some evidence in the testimony of the statement that he was scared and that there was a fight and that this inference was perhaps of voluntary manslaughter should be. There is a self-defense here and I think the Court has to have, should have given a charge on voluntary manslaughter, that he may have been unreasonable to think it was self-defense, but he may argue and His Honor, you don’t have the manslaughter and there is a requirement to murder one, two and three.

      (N.T. 740) (emphasis added). Appellant’s argument in post-verdict motions was to the same effect. (N.T. 4/8/85 14-17). Although appellant’s arguments are less than exemplary, we believe his argument was, nevertheless, adequate to preserve a claim of error based upon Sections 2503(a) and (b).

      . Despite the erosion of Jones, see generally, Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) and Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327, rehearing denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). We are constrained to follow its mandate until such time as the Supreme Court considers whether a Section 2503(a) instruction need be given in the absence of evidence to support such an offense. See also, Commonwealth v. Terry, 513 Pa. 381, 401, 521 A.2d 398, 408 (1987) (while noting that evidence was insufficient to warrant jury charge on 18 Pa.Cons.Stat.Ann.Sec. 2503(b), Court summarily concluded circumstances were insufficient to put defendant into a "killing rage”).

      . We also reject appellant's argument that his due process rights were violated by the failure to instruct the jury on voluntary manslaughter. Any notion that the rule of Jones had constitutional underpinnings has been laid to rest. See Commonwealth v. Zettlemoyer, supra, note 4.

      . We do not imply that appellant had the burden of presenting a defense to the charges. We set forth appellant’s argument only to note that there was no evidence on record to support an "unreasonable belief’ instruction.

      . Appellant Bland makes clear that he is only challenging the court’s refusal to issue a Section 2503(b) “unreasonable belief" charge.

      . Bland’s statement was introduced into evidence by the Commonwealth. (N.T. 440-445). The jury was instructed that this statement was to be received only as against Bland, (N.T. 439), and, thus, cannot be considered as against appellant Mays.

      . The statement was redacted.


source: Caselaw Access Project

author: CERCONE, Judge: WIEAND, Judge, OLSZEWSKI, Judge,

license: Public Domain

text:
    523 A.2d 363
    COMMONWEALTH of Pennsylvania v. Benedict SCHEPS. Appeal of Alan M. LIEBERMAN.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1986.
    Filed March 24, 1987.

      James D. Crawford, Philadelphia, for appellant.
    Charles P. Mackin, Jr., Deputy Attorney Gen., Harrisburg, for Com., appellee.
    Before WIEAND, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

Attorney Alan M. Lieberman appeals from the lower court’s denial of his uncontested petition for leave to withdraw as counsel for his client, Benedict Scheps. The lower court, after a hearing, denied Mr. Lieberman’s request to withdraw.

The facts which prompted the filing of the petition for leave to withdraw, as developed at the hearing, are as follows: Mr. Scheps was apparently at one time a successful cheese manufacturer in the Wyoming County area of Pennsylvania, where he had transferred his business from New Jersey. He was President of two family-owned businesses, the Scheps Cheese Company and the Bradford County Farms, Inc., both of which became major employers in the Wyoming County area.

It appeared, without contradiction at the hearing, that Mr. Scheps began as a well-intentioned business man who made substantial financial commitments in moving his plant from New Jersey to the Wyoming County area. At the hearing attorney Lieberman informed the court that if Mr. Scheps had followed legal advice to go into bankruptcy when his businesses ran into insurmountable economic problems, he would have avoided business irregularities which culminated in a multitude of criminal charges brought against him in both state and federal courts involving 1,100 counts on various deceptive business practices surrounding the failure of the two companies in 1983.

During and following the time Mr. Scheps’ problems began, he was represented by his personal attorney, Eugene H. Farber, Esquire, now deceased. Although Mr. Farber was engaged primarily in civil practice he represented Mr. Scheps’ corporate codefendants in the state prosecutions. In federal court Mr. Scheps was represented by Theodore V. Wells, Esquire, a New Jersey lawyer. Mr. Wells was of the opinion he would be in conflict of interest if he were also to represent Mr. Scheps in the federal cases, and so, he recommended Mr. Alan M. Lieberman, a member of a Philadelphia law firm and the appellant here, as one who would be capable of representing Mr. Scheps in the charges brought against him. Mr. Farber, Mr. Scheps’ personal attorney, asked Mr. Lieberman to represent Mr. Scheps. Fee arrangements approved by Mr. Scheps called for a $20,000 retainer against the final bill and prompt payment of fees and expenses upon submission. Mr. Lieberman agreed to be Mr. Scheps counsel based on the firm promise that he, as a member of a law firm, would be paid promptly and regularly all fees and expenses as they came due. Mr. Farber, Mr. Scheps’ personal attorney, bolstered this understanding with a promise that he would personally see that Mr. Lieberman was paid for his fees and expenses promptly. Before entering his appearance for Mr. Scheps, Mr. Lieberman evaluated the work to be done in the state cases. Part of that work was engaging in conversations and a conference with Deputy Attorney General Charles P. Maekin and his staff regarding a plea bargain arrangement. After such conference, Mr. Lieberman determined that a plea bargain arrangement could be agreed upon which would provide for a sentence to be imposed upon Mr. Scheps which would run concurrent to a federal sentence if the federal sentence was for five years or more imprisonment. With this prospect, Mr. Lieberman concluded that a long trial could be prevented and he then entered his appearance as counsel for Mr. Scheps.

Because of the widespread publicity in the media in the Wyoming County and adjoining areas regarding the charges made against Mr. Scheps, Mr. Lieberman was compelled to file motions for change of venue or venire and individually sequestered voir dire all of which motions were denied by the lower court despite the fact that the Commonwealth urged the judge to grant at least a change of venire. A motion for the recusal of the lower court was also denied. All of these motions and one seeking review of the trial court’s refusal to consider a plea agreement came before this court in petitions for review and we affirmed the lower court on jurisdictional grounds. A petition for allowance of appeal on these issues is currently pending before the Supreme Court of Pennsylvania.

THE PETITION FOR WITHDRAWAL

Mr. Lieberman worked very diligently and continuously in his representation of Mr. Scheps. He encountered substantial and unexpected expenditure of time in working out a plea bargain agreement which turned out to be more difficult than either he or the Attorney General’s office had contemplated, the result of which compelled Mr. Lieberman to seek assistance from other lawyers in his firm. Despite the difficulty in working out the plea bargain agreement, Mr. Lieberman did not cease his other efforts on behalf of Mr. Scheps, namely the filing of various motions, briefs and memoranda. When the plea agreement was reached between Mr. Lieberman and the Attorney General’s office, it was presented to the lower court for a hearing. However, the lower court refused to entertain the plea under Pa.R. Crim.P. 319, giving as its reason, Mr. Scheps’ right under 319 to withdraw his plea in the event the judge did not accept the arrangement between Mr. Scheps and the Commonwealth.

In order to determine the nature of the criminal charges filed against Mr. Scheps, Mr. Lieberman filed motions for discovery and for a bill of particulars which, at the time of the withdrawal hearing, had not yet been answered by the Commonwealth since these motions were stayed pending efforts to resolve the plea bargain agreement. In the summer of 1985, it became apparent that Mr. Scheps would be unable to pay Mr. Lieberman his present unpaid fees which amounted to $6,000 above the original retainer and would be unable to pay fees for future services which were estimated to be in the area of $150,000, in trying a case that would take 2-3 months, at least, to complete, according to Mr. Lieberman’s testimony. On February 18, 1986, Mr. Lieberman informed Mr. Scheps of his intention to file a petition for leave to withdraw and on March 17, 1986, he did so file. Mr. Lieberman simultaneously forwarded to Mr. Scheps copies of all motions, briefs and memoranda which he had filed or prepared in the case so that Mr. Scheps would be current with what had happened up to the time the petition to withdraw was filed. At the hearing on the petition for leave to withdraw, it was learned that Mr. Scheps had $13 million worth of judgments against him and that he owed the United States government $1 million in taxes and penalties at the rate of $120,000 per year in interest. All of his assets have been liquidated and even his home has been pledged as collateral for the debts. Prior to the lower court’s hearing on Mr. Lieberman’s petition for leave to withdraw, the court fixed May 5, 1986, as a date for trial on 6 counts of the 1,100 counts charged against Mr. Scheps. Of great significance is Mr. Scheps’ testimony regarding his discharge of Mr. Lieberman as his attorney which we will discuss later in this opinion.

To this point, the question to be decided is whether or not the learned court abused its discretion in denying counsel’s petition for leave to withdraw from Mr. Scheps’ case. Phoenix Mutual Life Insurance Co. v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 266 A.2d 698 (1970); C.E Williams Co. v. Pancoast, 412 Pa. 166, 194 A.2d 189 (1963).

There are circumstances which arise in a given case that make it mandatory for a court to permit counsel to withdraw from representation of his or her client. In accordance with the provisions of the Pennsylvania Code of Professional Responsibility (The “Code”) adopted by our Supreme Court pursuant to its authority to promulgate rules regulating the practice of law (Pa. Const. Art. V, Section 10(c)), these “Disciplinary Rules”, unlike the Ethical Considerations, are mandatory in character. See Preamble to the Code. See Commonwealth v. Wolfe, 301 Pa.Superior Ct. 187, 195-96 n. 7, 447 A.2d 305, 309, n. 7 (1982).

DR 2-110 provides, in relevant part:

(A) In general.
(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before the tribunal without its permission.
(B) Mandatory withdrawal.
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment if:
(1) He knows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injurying any person.
(2) He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.
(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.
(4) He is discharged by his client.

Thus, under DR 2-110(B)(4) where a client dismisses his lawyer, it is mandatory that the lower court grant permission for leave to withdraw. Otherwise, to leave the mandatory withdrawal section of DR 2-110, covering the four instances where withdrawal upon petition is mandatory to the discretion of the lower court would mean that such court could compel a lawyer to continue to represent his client even though he faced disciplinary measures under (B)(2), supra. This, we are of the opinion, was not intended by the rules. In the instant case, since Mr. Scheps discharged his lawyer, this action came within the ambit of the mandatory withdrawal rule and Mr. Lieberman should have been given permission to withdraw. Furthermore, there is a plethora of cases that hold that a client may discharge an attorney with or without cause. In United States v. Thomas, 450 F.2d 1355 (D.C.Cir.1971) the Court stated: “Many years ago this court held, ‘It is settled law that a client, with an order of court, has a right to discharge an attorney with or without cause’ ”. (citation omitted.)”. In McDonnell v. Tabah, 297 F.2d 731, 733 (2nd Cir.1961) the court said, “While it is quite true that, under certain circumstances, counsel cannot be relieved without permission of the court (citations omitted) there is no requirement of law or common sense that a court can compel counsel to continue to represent a former client where there has been a termination of the attorney-client relationship before trial by mutual consent.”

In Fluhr v. Roberts, 463 F.Supp. 745 (W.D.Ky.1979), a prison inmate filed suit against the local county government seeking return of confiscated goods and for better medical, library, laundry and recreational treatment. The inmate’s counsel filed a motion for withdrawal citing irreconcilable differences between himself and the inmate client. The inmate substantiated these differences by requesting counsel’s removal. There the court said: “It is clear that the attorney-client relationship may always be terminated by the client with or without cause ... In the instant case, good cause has been shown by a mutual desire that Mr. Clay be relieved of his court-appointed duty. Therefore, the motion to withdraw as counsel will be granted.” Id. at 747. See Sundheim v. Beaver County Building and Loan Association, 140 Pa.Superior Ct. 529, 14 A.2d 349 (1940); Nowell v. Dick, 413 F.2d 1204 (5th Cir.1969). And so it appears to be generally agreed that a client may, at any time, terminate the relation of attorney-client with or without cause. See Potts v. Mitchell, 410 F.Supp. 1278 (W.D.N. C.1976). This right of a client to terminate the attorney-client relationship is an implied term of every contract of employment of counsel, at least where the attorney has no vested interest, in some way, in the case or its subject matter. This right of the client is necessary in view of the confidential attorney-client relationship and the evil that would result from friction, personal strife, and lack of diligent effort on the part of counsel to the serious detriment of a client or upon mutual termination of the relationship.

Insofar as the mandatory nature of DR 2-110(B) is concerned, we would find that the lower court erred in denying Mr. Lieberman’s motion for leave to withdraw.

In light of the trial court’s reasons for its ruling in this case, we must decide if DR 2-110(C) of the Disciplinary Rules in any way so modifies the mandatory direction of DR 2-110(B), supra, so as to give the lower court discretion to deny the petition for leave to withdraw in this case. We are of the opinion that it does not.

DR 2-110(C) provides:

(O Permissive withdrawal.
If DR 2-ll-(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:
(1) His client:
(a) Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.
(b) Personally seeks to pursue an illegal course of conduct.
(c) Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules.
(d) By other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively.
(e) Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules.
(f) Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.
(2) His continued employment is likely to result in a violation of a Disciplinary Rule.
(3) His inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal.
(4) His mental or physical condition renders it difficult for him to carry out the employment effectively.
(5) His client knowingly and freely assents to termination of his employment.
(6) He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.

Thus, with the exception of these circumstances contemplated in DR 2-110(B) supra (Mandatory withdrawal) the matter of withdrawal is traditionally within the discretion of the trial court judge. There are no prophylactic rules which exist when determining whether a denial or withdrawal amounts to an abuse of discretion. Each case must be decided by balancing the competing interest giving due regard to the facts presented. Commonwealth v. Simpson, 222 Pa.Superior Ct. 296, 294 A.2d 805 (1972). As in the case of the denial for a petition for a continuance to obtain new counsel, there are no mechanical tests for deciding when a denial of a petition to withdraw as counsel is so arbitrary so as to be an abuse of discretion. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). It is traditionally the balancing test that determines the weight to be given to the interest of the defendant to have a fair trial and the interest of the Commonwealth to an efficient administration of justice. Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973). Not every denial of a request to withdraw as counsel offends the exercise of the discretion standard. However, “as in the case of a defendant’s request for additional time in order to procure counsel, ... a myopic insistence upon expeditiousness in the face of a justifiable request for delay” can render the right of a defendant a mere formality. Commonwealth v. Atkins, 233 Pa.Superior Ct. 202, 207-208, 336 A.2d 368, 371 (1975). The same, of course, is true when considering a petition for leave to withdraw.

In Brown v. Pennsylvania Railroad, 435 Pa. 84, 87, 255 A.2d 554, 555 (1969) the court said: “We believe that sometimes too little consideration is given to the rights and privileges of an attorney at law to represent clients of his choice and to terminate a lawyer-client representation when he desires, provided it will not unjustly prejudice the rights of his clients,” citing Swedloff v. Philadelphia Transportation Company, 409 Pa. 382, 187 A.2d 152 (1963). Permitting counsel’s withdrawal when he has good grounds to do so together with his client’s permission to do so and in the absence of any real prejudice to the client or to the Commonwealth is entirely justifiable. In Brown, supra, the lower court denied withdrawal and the Pennsylvania Supreme Court reversed.

The right to counsel is a personal right and is waivable if the waiver is valid and effective if competently and intelligently made taking into consideration the specific circumstances of a case, since each case must be considered on its specific factual background. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964); Commonwealth ex rel. O’Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964). A client has a right to dismiss counsel so long as it does not delay the judicial process unreasonably or is not made in bad faith. Commonwealth v. Atkins, supra; Commonwealth v. Ross, 465 Pa. 421, 350 A.2d 836 (1976). An attorney must take reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivery to client of all papers and property to which the client is entitled and complying with applicable laws and rules. When asked if his withdrawal from the case would in . any way jeopardize his client’s interest, Mr. Lieberman testified that a substituted attorney would not be in a less advantageous position to try the case then was Mr. Lieberman. He stated: “... I — I don’t — not appreciably worse at at all. I think that an attorney substituted for us would, would have close to the same learning curve and discovery and motion time that we would require to try the case.” Deputy Attorney General Mackin, when asked by the lower court to comment on Mr. Lieberman’s request for leave to withdraw, stated:

Yes, your Honor, if I may, sir. Your Honor, this is a sticky position for the Commonwealth to be in, in as far as the Commonwealth really has no desire one way or the other as to who represents Mr. Scheps. Mr. Scheps is entitled to counsel of his own choosing. So, therefore, we don’t really, we would have no position as to who represents Mr. Scheps, be it public defender, or be it Mr. Lieberman. However, we feel that in the memorandum in support of the motion to withdraw that has been filed, we feel it isn’t improper to characterize Mr. Scheps’ failure to pay as deliberate. We think that testimony has been brought out today that it is not deliberate, it is just that he does not have the wherewithal! to pay, and under the disciplinary rules, a permissive withdrawal is allowed, if there is a deliberate disregard of a fee arrangement. And we don’t feel that Mr. Scheps had deliberately disregarded it. But as I said, now confronted with Mr. Scheps’ desire not to go forward with Mr. Lieberman, I don’t know if that is tantamount to a discharge. If a client discharges an attorney, I believe the disciplinary rules are clear that that is a mandatory withdrawal situation. But I’m not too certain as to whether or not the testimony from Mr. Scheps actually would amount to a discharge. On the other hand, the Commonwealth also recognizes its duty to the citizens of the Commonwealth to move forward with this case. And I, I think I can be granted this leeway, I do disagree with Mr. Lieberman in that he feels that a new lawyer would be starting off even where Mr. Lieberman is. I feel that Mr. Lieberman, although perhaps he’s not ready for trial of this case, has certainly through the process of, at the minimum, osmosis, learned some of the facts, who the witnesses are, and I think perhaps Mr. Lieberman is selling himself short. I think he knows quite a bit about this case. That would be my opinion, your Honor. Thank you, sir.

The Attorney General’s comments certainly do not amount to any substantial objection to Mr. Lieberman’s request for leave to withdraw.

When asked why he was discharging his lawyer, Mr. Scheps testified at the hearing as follows: “... I — cannot in good conscience continue to ask Mr. Lieberman or his firm to continue as my counsel now that there’ll be additional debts of over $100,000 and absolutely no way that I will be able to pay them.” Mr. Scheps testified that he was not dissatisfied with Mr. Lieberman because he had done a ‘decent job.’ ”

In answer to the Attorney General’s question as to why he was discharging his lawyer, Mr. Scheps answered:

“Yes, if I could explain. Originally I didn’t know it was going to take this much money and this much time, and I cannot continue to allow a man, who I am sure it is going to affect his career in his company, to continue to go deeper in debt. I, you know, there is no way. In the beginning I thought I would be able to pay him. Gene Farber, [Mr. Scheps’ personal counsel] who was a friend of mine, assured me that he would help me, as his firm made more money, and so in the beginning I thought I would be able to. There would be no problem. We didn’t think we were going to go into this again, this size of a situation. So now I know it is impossible, I mean it is just an impossible task for me to pay him. If I made a quarter of a million dollars a year, I could never pay him, because the government would take their share and then there would be all the liens against me. So there is absolutely no way I could ever make enough money to pay him, or anybody.”

The lower court refused Mr. Lieberman’s request to withdraw on the grounds that Mr. Scheps’ discharge of Mr. Lieberman was not deliberate as required by DR 2-110(C)(1)(f) which holds that a lawyer may request permission to withdraw when his client “Deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.” This term “deliberate” has not been interpreted or construed in any decision and, to say the least, it is an obtuse term in considering the totality of the circumstances having to do with the attorney-client relationship. The term “deliberate”, in our opinion, in the context of an attorney-client relationship does not necessarily mean that it has to be done with vindictiveness or in an inimical sense so long as it is intelligent, voluntary, and with a full understanding as to what the discharge means. In construing the word “deliberate”, the lower court ignores the provisions of DR 2-110(C)(5) and (6), which by the clarity of the language clearly override the nebulous, imprecise and unclear meaning of the word “deliberate”. In this case Mr. Scheps discharge was clearly intelligently and voluntarily made.

Most of the cases cited by the Commonwealth are not helpful since they either decide the affect which a general appearance by counsel has on a court’s jurisdiction over a person of a client or relate to untimely requests for continuances in order for a defendant to retain an attorney of his choice.

At the time of the withdrawal hearing, this case was not ready for trial; motions on discovery and for a bill of particulars had not yet been answered by the Commonwealth; the Commonwealth had not presented substantial information regarding any delay that would jeopardize the efficient administration of justice, and, in fact, agreed with the defendant’s motion for a change of venire because of the widespread publicity given to the case. The lower court erred in misconstruing the effect of Mr. Scheps’ discharge of his attorney. It erred in holding that the petition for leave to withdraw was untimely filed because the court scheduled six of the 1,100 counts against Mr. Scheps for trial. Even as to those six counts, motions on discovery and for a bill of particulars had not yet been answered by the Commonwealth. Furthermore, the scheduling of 6 counts out of 1,100 counts does not equate with the scheduling of a full trial involving the remaining 1,964 counts which it is estimated will take at least 2-3 months to complete. The lower court did not take into account the inordinate burden which it placed called upon Mr. Lieberman to carry out when his representation was predicated upon a firm promise that all his fees would be paid promptly. Up to the time of the hearing Mr. Lieberman had not delayed the judicial process nor filed the petition for leave to withdraw in bad faith. Commonwealth v. Ross, supra, Commonwealth v. Atkins, supra, Phoenix Mutual Life Insurance Company v. Radcliff on the Delaware, supra.

Where a lawyer has conscientiously represented his client and has not left him without time to prepare his case for trial or to procure other counsel for such trial, his petition for withdrawal is not made in bad faith. And where said client made in bad faith owes past legal fees of a substantial amount and is not in a position to pay for future legal fees for a protracted trial, there is no reason to deny an attorney’s petition for leave to withdraw. Finally, when the client himself discharges his attorney, as Mr. Scheps did in this case, the relationship of attorney-client is terminated. The court’s denial of Mr. Lieberman’s petition imposes a punishment resulting in the risk of detriment to his career, let alone substantial financial losses. It should not be permitted. After all, it is the client’s responsibility and not the attorney’s to pay for the heavy costs of trial. Commonwealth v. Novak, 395 Pa. 199, 213, 150 A.2d 102, 109 (1959). In light of the foregoing circumstances, the lower court erred in not allowing counsel to withdraw from this case and we remand for purposes consistent with this opinion. Jurisdiction relinquished.

WIEAND, J. filed a concurring and dissenting opinion.

OLSZEWSKI, J., filed a dissenting opinion.

WIEAND, Judge,

concurring and dissenting opinion:

I concur in the result achieved by Judge Cercone and join that portion of his opinion which determines that the trial court abused its discretion when, under the peculiar circumstances of this case, it denied counsel’s request for leave to withdraw his appearance as counsel for the defendant.

However, I disagree with the conclusion expressed by Judge Cercone, as well as by Judge Olszewski, that Disciplinary Rule 2-110(B) makes it mandatory that a trial court grant permission for counsel to withdraw under the circumstances there enumerated. In my opinion, Rule 2-110(B) has application only to counsel; it was not intended to deprive trial courts of discretion in determining whether to grant or withhold permission to counsel to withdraw under the circumstances of each particular case. Trial courts are governed by rules adopted by the Supreme Court; and Pa.R.Crim.P. 302(b) provides that “[cjounsel for a defendant may not withdraw his appearance except by leave of court.” This rule vests discretion in trial courts, to be exercised as the “interests of justice” require.

In the instant case, I would hold that the “interests of justice” can better be served by permitting appellant-counsel to withdraw so that the defendant-client can be represented by other counsel whose loyalty will not be impaired by the defendant-client’s inability to pay a substantial fee.

OLSZEWSKI, Judge,

dissenting opinion:

Although neither party raises the issue, I note that this is a final, appealable order, and thus, jurisdiction is properly before this Court. See Brown v. Pennsylvania Railroad, 435 Pa. 84, 255 A.2d 554 (1969). As for the merits of this appeal, I respectfully dissent. The majority finds that withdrawal is authorized pursuant to both the mandatory provision of DR 2-110(B)(4) and the permissive provision of DR 2-110(C)(l)(f). In my view, neither provision is supportive of a grant of withdrawal under the peculiar facts of this case. A chronological review of those facts is particularly instructive.

In October of 1984, Mr. Lieberman was asked to represent Mr. Scheps. The fee arrangement agreed upon called for the payment of a $20,000 retainer against the final bill and the payment of monthly bills upon submission. Mr. Lieberman acknowledges that before entering his appearance for Mr. Scheps, he evaluated the work to be done and spoke with representatives of the attorney general’s office. In his own words, Mr. Lieberman “concluded that there was little danger that there would be substantial lawyer time required in dealing with the state charges.” (Notes of Hearing 4/25/86 12-13, R.R. 28a-29a). Mr. Lieberman also acknowledges that he became involved with Mr. Schep’s case “only because of the assurances of the members of the attorney general’s office that a plea agreement could be reached” and because Mr. Schep’s personal attorney, Mr. Farber, gave him a personal assurance the legal bill would be paid. (Id. at 3, R.R. 7a).

Mr. Lieberman’s expectation that a plea agreement would dispose of this case proved to be erroneous; on October 2, 1985, the trial court refused to accept the proposed plea much to the surprise of both the defense and the Commonwealth. Mr. Lieberman continued, however, to diligently and expertly represent Mr. Scheps before the trial court as well as before this Court and the Supreme Court of Pennsylvania.

In the meantime, Mr. Lieberman learned that his client had become insolvent. Mr. Scheps and his personal attorney, Mr. Farber, continued, nevertheless, to give their assurances that the legal bills would be paid.

Mr. Farber met an untimely death on February 28, 1986. Coincidentally, Mr. Lieberman informed Mr. Scheps that same day that he would seek to withdraw from the case.

On March 18, 1986, Mr. Lieberman filed a motion to withdraw citing two grounds: (1) difficulty in dealing with Mr. Scheps, both as a result of his failure to pay the fees owed, and in view of the death of Mr. Farber who acted as an intermediary; and (2) Mr. Scheps’ inability to pay the legal fees. At the hearing held on this matter a new and different ground for withdrawal appeared to arise. When questioned as to his feelings on this motion, Mr. Scheps testified as follows:

Q. Just one last question. Do you wish to continue to proceed with Mr. Lieberman?
A. No, I do not. I — I cannot in good conscience continue to ask Mr. Lieberman or his firm to continue as my counsel, knowing that there’ll be additional debts of over a hundred thousand dollars, and absolutely no way that I’ll ever be able to pay them.
Q. Now, Mr. Scheps, you’re not dissatisfied with the representation that Mr. Lieberman has provided you are you?
A. No. I think he’s done a decent job. I’m not dissatisfied.
Q. No complaints with his legal workmanship?
A. No.
Q. Your main concern is that you will be unable to pay him, well, first of all, for past services rendered, and for anything in the future, is that correct?
A. That’s my main concern, yes.
Q. And that is why you do not wish to go forward with him?
A. Yes, if I could explain. Originally I didn’t know it was going to take this much money and this much time, and I cannot continue to allow a man, who I am sure it is going to affect his career in his company, to continue to go deeper in debt. I, you know, there is no way. In the beginning I thought I would be able to pay him. Gene Farber, who was a friend of mine, assured me that he would help me, as his firm made more money, and so in the beginning I thought I would be able to. There would be no problem. We didn’t think we were going to go into this again, this size of a situation. So now I know it is impossible, I mean it is just an impossible task for me to pay him. If I made a quarter of a million dollars a year, I could never pay him, because the government would take their share and then there would be all the liens against me. So there is absolutely no way I could ever make enough money to pay him, or anybody.

(Notes of hearing 42-44, R.R. 58a-60a). Following this testimony, counsel for the Commonwealth noted that it was not entirely clear on the record that Mr. Lieberman had been, in fact, discharged by Mr. Scheps. As a result, Mr. Scheps was recalled to the witness stand and asked one question:

Q. Mr. Scheps, do you discharge Mr. Lieberman?
A. Yes, I do.

(Notes of hearing 51, R.R. 67a). Hence, the discharge of counsel claim did not arise as a basis for withdrawal until the hearing on counsel’s motion.

I agree with the majority that when counsel is discharged, the court must grant permission for leave to withdraw. DR 2-110(B)(4). Because of the nature of the confidential relationship between client and counsel, the client may discharge counsel with or even without cause. 7 Am.Jur.2d Attorneys at Law Sec. 168 (1980). Common sense and experience teach us, however, that even where the discharge is without cause, the client has acted because of discontent, distrust, or other motives which reveal a breakdown in the attorney-client relationship. Such is not the case here. In view of the testimony and the sequence of events giving rise to this case, in particular, the fact that Mr. Lieberman was not “discharged” until after the withdrawal motion was filed, it becomes obvious that this is not a case where the client severed the attorney-client relationship. There was no breakdown of the attorney-client relationship; Mr. Scheps testified that he was satisfied with Mr. Lieberman’s performance. It takes no stretch of the imagination to see that Mr. Scheps was placed in the untenable position of “discharging” his counsel only when questioned at a hearing on the motion and did so only because of financial constraints. I would not permit such economic arm-twisting to be used as the basis for turning a motion for permission to withdraw into one based upon the mandatory withdrawal provisions. I would, therefore, find that the mandatory withdrawal provision, DR 2-110(B)(4), is simply inapplicable.

Nor do I believe that a basis exists for the grant of permissive withdrawal. The reason advanced by appellant — the inability to pay the legal fees — is, beyond doubt, the motivating factor in Mr. Lieberman’s desire to withdraw. The Code of Professional Responsibility permits withdrawal of counsel where the client “deliberately disregards” an agreement or obligation as to counsel’s fees or expenses. DR 2-110(C)(1)(f). To date, Mr. Scheps has made payments totaling $30,000; an initial payment of $20,000 and a second payment of $10,000. In comparison, Mr. Lieberman claims he has billed over $80,000 in fees and $6,000 in disbursements. Mr. Scheps testified that he is unable to pay the sums owed; all of his property is mortgaged and approximately $13 million in liens have been filed against him.

Given Mr. Scheps financial plight subsequent to entering the fee agreement with Mr. Lieberman, I cannot say that he deliberately disregarded his obligations; it was simply impossible for him to make any payment. Thus, I would find no abuse of discretion in the court’s refusal to permit Mr. Lieberman to withdraw from the case pursuant to DR 2-110(C)(l)(f).

A review of the Ethical Considerations and Disciplinary Rules accompanying Canon 2 — Withdrawal of Counsel, indicates that all the rules and principles regarding the right of an attorney to withdraw are geared toward protecting three interests: the legal rights of the client, the attorney’s interests in receiving fair treatment by the client, and the integrity of the judicial system. I believe that by permitting counsel to withdraw, the majority elevates the attorney’s interest in being compensated over the interests of the client and the judicial system.

Because a defendant holds a qualified right to representation by counsel of choice, this case has constitutional underpinnings. As noted above, Mr. Scheps has no quarrel with the performance of his retained counsel. Mr. Lieberman has already received a substantial retainer. His client, on the other hand, faces in excess of 1,000 counts against him; the trial promises to be both lengthy and complicated. Permitting the withdrawal of counsel who, at this time, is both extremely intimate with the intricacies of this case and well-equipped to handle such a complex trial, would elevate counsel’s right to be treated fairly over the client’s right to counsel of choice. In addition, withdrawal would unnecessarily impede the efficient administration of justice.

This is not to say, however, that counsel is not entitled to compensation. As a general rule, an attorney is not obligated to render legal services for those unable to make payment in the absence of a court appointment. See EC 2-26. I am not so naive as to be blinded from the real-life fact that attorneys must earn a livelihood; I also suspect few clients enlist the aid of private counsel with the expectation that representation will be given free of charge. See EC 2-16, EC 2-17. However, once an attorney agrees to represent a client, counsel implicitly agrees to proceed on the client’s behalf to the conclusion of the matter. 7 Am.Jur.2d Attorneys at Law Sec. 173 (1980). See EC 2-31, EC 2-32. In this case, however, Mr. Lieberman — a partner in a prominent firm — conducted a thorough investigation before agreeing to represent Mr. Scheps. Although he entered his appearance in this case and accepted a retainer expecting the court’s acceptance a plea agreement, he should have been cognizant of the possibility that the plea would be rejected and the case scheduled for trial. Mr. Lieberman has already undertaken his obligations to his client; those obligations should not cease merely because the case became more complicated or no longer is as profitable as originally contemplated. I would, therefore, affirm the trial court’s denial of the motion to withdraw.

      . Although we do not address the issue, it is unfortunate that the lower court did not at least entertain the plea bargain arrangement. In the case of Commonwealth v. Fazenbaker, 248 Pa.Superior Ct. 433, 375 A.2d 175 (1977) Judge Spaeth went into detailed procedure that a lower court should follow when a plea bargain arrangement is presented. We feel that in the context of that opinion there was an obligation of the lower court to at least entertain the plea and if he decided not to accept the plea bargain arrangement he could notify the defendant at which time the defendant could withdraw the plea. Id.; Rule 319. But this matter is currently the subject of a petition for allowance of appeal now pending before the Pennsylvania Supreme Court and is not our concern here.

      . The fee agreement was not made part of the record. Neither party disputes the terms of the agreement as recalled by Mr. Lieberman in his testimony at a hearing on this matter.

        . Mr. Lieberman has abandoned this first ground on appeal.

      . An act is "deliberate” where it results from careful and thorough consideration or is characterized by an awareness of the consequences. Websters New Collegiate Dictionary at 297 (1980). I cannot conclude that Mr. Scheps carefully pondered before deciding not to pay the legal fees. He simply could not do so.

      . We note that the motion to withdraw was filed in March of 1986 and trial was set to begin on May 5, 1986. Although Mr. Scheps has waived his right to a speedy trial, both the court and society have an interest in the efficient and expeditious administration of justice.

      . Throughout the course of argument in this matter, Mr. Lieberman makes repeated reference to the assurances of payment made by Mr. Farber. The payment of legal fees from one other than the client is prohibited except with the consent of the client after full disclosure. DR 5-107(A), (B). See EC 5-21, EC 5-22, EC 5-23. Since Mr. Farber is deceased, I need not determine the propriety of such assurances. I note, however, that the absence of an assurance of payment is undoubtedly significant in the present action.


author: McEWEN, Judge:

text:
    523 A.2d 374
    Anastos MAKRIPODIS, a minor, by His Guardian, Mike MAKRIPODIS and Mike Makripodis and Dolly Makripodis, Appellants, v. MERRELL-DOW PHARMACEUTICALS, INC. and Rite Aid Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed March 16, 1987.

      Paul Hilko, Pittsburgh, for appellants.
    Raymond G. Hasley, Pittsburgh, for appellees.

      Before ROWLEY, McEWEN and TAMILIA, JJ.
   McEWEN, Judge:

Appellants undertook this products liability action alleging that their child, Anastos Makripodis, was born with certain congenital abnormalities as a result of the ingestion of the drug Bendectin by his mother, appellant Dolly Makri-podis, during her pregnancy. The drug Bendectin was manufactured by Merrell-Dow Pharmaceuticals, Inc. and purchased by the appellants at a pharmacy owned by Rite Aid Corporation, upon presentation of a physician’s prescription for the drug. Appellants filed suit against Mer-rell-Dow Pharmaceuticals, Inc. and Rite Aid Corporation, and alleged, inter alia, that appellee Rite Aid Corporation (1) had breached the implied warranty of merchantibility because Bendectin was unfit and unsafe for its ordinary use, the treatment of nausea in pregnant women, and (2) that Rite Aid was strictly liable in tort as Bendectin was a defective product, unreasonably dangerous due to the absence of proper warnings concerning its teratogenic potential. The distinguished Judge Emil E. Narick granted the preliminary objections filed by Rite Aid Corporation, and dismissed the complaint as to Rite Aid, after concluding that the complaint failed to state a cause of action against Rite Aid. The trial court so concluded by reason of its holdings (1) that a pharmacist cannot be held liable for breach of an implied warranty of merchantibility where a prescription drug is properly filled with an unadulterated drug, and (2) that a pharmacist cannot be held strictly liable on the basis of inadequacies in the warnings provided by the manufacturer since the warnings required to be provided by the manufacturer concerning any risks or dangers attendant to the use of the drug need be supplied only to physicians and thus do not impact upon the safe use of the drug as sold by the pharmacy. We affirm.

The standard of review which we must apply when examining a challenge to the sustaining of preliminary objections in the nature of a demurrer is well-settled:

All material facts set forth in the complaint as well as all inferences reasonably dedueible therefrom are admitted as true for [the purposes of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where doubt exists as to whether a demurrer should be sustained this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-462 (1983), quoting Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-1233 (1983). Accord: Kyle v. McNamara & Criste, 506 Pa. 631, 633-34, 487 A.2d 814, 815 (1985); Judge v. Allentown and Sacred Heart Hospital Center, 506 Pa. 636, 638-39, 487 A.2d 817, 818 (1985). See also: Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 191-93, 500 A.2d 470, 472 (1985).

The issues posed are not novel, but the Pennsylvania appellate courts have not, until now, addressed the question of (1) whether a retail druggist, who properly fills a prescription of a medical doctor with the proper and unadulterated drug prescribed, is liable to the patient-purchaser' for breach of an implied warranty of merchantibility if the drug produces harmful effects upon the purchaser, or (2) whether a retail druggist is strictly liable as the retailer of a defective product where the warnings provided by the drug manufacturer are inadequate.

Appellants first argue that the court erred in concluding that they had not stated a cause of action against Rite Aid for breach of the implied warranty of merchantibility since, they assert, such a warranty arises whenever goods are sold by a person who is a merchant with respect to goods of that kind. See: 13 Pa.C.S. § 2314.

The essence of the warranty of merchantibility is that the item sold is fit for the ordinary purposes for which such goods are used. See: Wisniewski v. Great Atlantic and Pacific Tea Company, 226 Pa.Super. 574, 577-81, 323 A.2d 744, 746-747 (1974); 13 Pa.C.S. § 2314(b)(3). The Florida Supreme Court in addressing this issue in McLeod v. W.S. Merrell Company, 174 So.2d 736 (Fla.1965), noted that prescription drugs are not available to the general public but rather “only to a very limited segment of the public who had been seen by their physician and who had presented their doctor’s prescription directing that the drug be supplied.” Id. at 738. The McLeod court declined to find that a druggist warrants that any prescription drug, sold upon a doctor’s prescription, will be fit for its “ordinary uses”. Rather, the court held that “the rights of the consumer can be preserved, and the responsibility of the retail prescription druggist can be imposed, under the concept that a druggist who sells a prescription warrants that:

(1) he will compound the drug prescribed;
(2) he has used due and proper care in filling the prescription;
(3) the proper methods were used in the compounding process; and
(4) the drug has not been infected with some adulterating foreign substance.”

Id. at 739. See also: Bichler v. Willing, 58 A.D.2d 331, 332-35, 397 N.Y.S.2d 57, 58-59 (1977); Fellows v. USV Pharmaceutical Corp., 502 F.Supp. 297 (D.C.Md.1980); Ullman v. Grant, 114 Misc.2d 220, 450 N.Y.S.2d 955 (1982); LeMire v. Garrard Drugs, 95 Mich.App. 520, 524-26, 291 N.W.2d 103, 105 (1980).

Appellee invites this Court to adopt the reasoning of the California Supreme Court in Murphy v. E.R. Squibb & Sons, Inc., 221 Cal.Rptr. 447, 40 Cal.3d 672, 710 P.2d 247 (1985), and hold that the dominant role of the pharmacist in filling a prescription is the performance of a service rather than the sale of a product and thus conclude that no warranties arise as an incident of the sale of a prescription drug. See: Jones v. Irvin, 602 F.Supp. 399, 400 (S.D.Ill. 1985). However, we find it unnecessary, for resolution of this appeal, to determine whether a retail prescription druggist is the provider of a professional service or a retail merchant, as that term is used in 13 Pa.C.S. § 2314, when dispensing a drug upon a physician’s prescription since there are other, more compelling reasons to refuse to impose an implied warranty of merchantibility upon the sale of a prescription drug.

As heretofore observed, such drugs are not available to the general public but may be obtained only upon the prescription of a licensed physician. This restriction upon the availability of such drugs has been imposed because of the inherently dangerous properties of such drugs. Prescription drugs may pose a threat to the safety of certain identifiable segments of the public, or may be dangerous when used in conjunction with other drugs or substances, or may be harmful if taken by persons suffering from certain diseases or conditions. “There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs ____ many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician.” Restatement (Second) of Torts § 402A, Comment (K). The ordinary and intended use of penicillin is to combat infections. Penicillin, however, has the ability to cause death when ingested by individuals who are allergic to it, or, when taken with certain other drugs or substances, may cause harm to the patient-consumer. Thus, we find that the very nature of prescription drugs themselves precludes the imposition of a warranty of fitness for “ordinary purposes”, as each individual for whom they are prescribed is a unique organism who must be examined by a physician who is aware of the nature of the patient’s condition as well as the medical history of the patient. Thus, we hold that a druggist who dispenses a prescription drug pursuant to the prescription of a licensed physician only warrants:

(1) that he has compounded the drug prescribed with due care,
(2) in the strength and quantity prescribed,
(3) that he has used the proper methods in the compounding process,
(4) that the drug is pure and unadulterated, and
(5) that he has labeled the drug in accordance with the directives of the physician’s prescription.

The trial court thus properly dismissed that portion of appellant’s complaint which alleged a cause of action against Rite Aid for breach of a warranty of merchantibility.

Appellants also argue that the trial court erred in dismissing that portion of their complaint which alleged that appel-lee, Rite Aid Corporation, was strictly liable in tort as the retailer of a product which was unreasonably dangerous due to the absence of any warnings as to the teratogenic properties of the drug.

“Section 402A of the Restatement (Second) of Torts imposes strict liability on the seller of any product ‘in a defective condition unreasonably dangerous to the user or consumer’____ Comment (h) to the section makes clear that a product, as to which adequate warning of danger involved in its use is required, sold without such warning is in a ‘defective condition’.” Incollingo v. Ewing, 444 Pa. 263, 287, 282 A.2d 206, 219 (1971). Accord: Fravel v. Suzuki Motor Company, Ltd., 337 Pa.Super. 97, 102-03, 486 A.2d 498, 501 (1984). Where a prescription drug is accompanied by proper warnings, the manufacturer “is not strictly liable for unfortunate consequences attending the use of otherwise useful and desirable products which are attended with a known but apparently reasonable risk. Rather, such a manufacturer is liable only if he fails to exercise reasonable care to inform those for whose use the article is supplied of the facts which make it likely to be dangerous.” Baldino v. Castagna, 505 Pa. 239, 244, 478 A.2d 807, 810 (1984). In the case of prescription drugs, the warning required is not to the general public or to the consumer but rather to the prescribing doctor. Baldino v. Castagna, supra 505 Pa. at 244-45, 478 A.2d at 810; Incollingo v. Ewing, supra, 444 Pa. at 286-87, 282 A.2d at 220; Leibowitz v. Ortho Pharmaceutical Corporation, 224 Pa.Super. 418, 430-32, 307 A.2d 449, 457 (1973).

Appellants contend that the failure of appellee Rite Aid to warn Mrs. Makripodis of the teratogenic potential of the drug Bendectin caused the drug to be unreasonably dangerous and as the retailer of an unreasonably dangerous product, Rite Aid is strictly liable for the resultant harm.

It is clear that the manufacturer of a prescription drug known to be dangerous for its intended use, has “a duty to exercise reasonable care to inform those for whose use the article [was] supplied of the facts which make [the product] likely to be dangerous.” Incollingo v. Ewing, supra, 444 Pa. at 285 n. 8, 282 A.2d at 220 n. 8. However, the warnings which are required to be given by the manufacturer must be directed to the physician, not the patient-consumer. This is so because it is the duty of the prescribing physician to be fully aware of (1) the characteristics of the drug he is prescribing, (2) the amount of the drug which can be safely administered, and (3) the different medications the patient is taking. It is also the duty of the prescribing physician to advise the patient of any dangers or side effects associated with the use of the drug as well as how and when to take the drug. The warnings which must accompany such drugs are directed to the physician rather than to the patient-consumer as “[i]t is for the prescribing physician to use his independent medical judgment, taking into account the data supplied to him from the manufacturer, other medical literature, and any other source available to him, and weighing that knowledge against the personal medical history of his patient, whether to prescribe a given drug.” Leibowitz v. Ortho Pharmaceutical Corporation, supra, 224 Pa.Super. at 431, 307 A.2d at 457. Thus, in an action against a drug manufacturer based upon inadequate warnings, the issue to be determined is whether the warning, if any, that was given to the prescribing physicians was proper and adequate. See: Baldino v. Castagna, supra, 505 Pa. at 244-45, 478 A.2d at 810.

Appellants, however, argue that a retail pharmacist should be held strictly liable where no warnings or inadequate warnings are provided by the pharmacist to the patient-consumer. Appellants thus seek to impose upon the retail pharmacist an independent duty to warn the patient-consumer of all possible adverse consequences associated with a drug. Such a duty would be greater than that imposed upon the drug manufacturer, who is required to provide such warnings only to prescribing physicians. We believe that to impose such a duty upon retail pharmacists would be unwise and would ill serve the interests of the consuming public.

The purpose of the requirement that all warnings as to potential dangers associated with prescription drugs be provided to prescribing physicians is that the prescribing physicians are, in the case of prescription drugs, the actual consumers. In most instances, the patient-consumer would be unable to properly assess and weigh the benefits and risks attendant to the use of such drugs. Moreover, the retail pharmacist is in most instances unfamiliar with the medical history and condition of the patient-consumer and, in any event, is not a physician, trained in the diagnosis and treatment of diseases. A requirement that a pharmacist provide to the consumer the same warnings that the drug manufacturer must supply to prescribing physicians would intrude upon the doctor-patient relationship. Such warnings, moreover, would be inadequate to enable the average consumer to evaluate the benefits and risks attendant to the use of such drugs. We, therefore, hold that a retail pharmacist is not required to provide to the patient-consumer such warnings as are required to be provided to physicians by the manufacturers of prescription drugs.

Appellants argue in the alternative that even if Rite Aid had no independent duty to warn them of the risks associated with the use of the drug Bendectin, appellee Rite Aid is nevertheless strictly liable as a retailer of a defective product. We disagree.

It is well settled that a manufacturer of a prescription drug is liable “if he fails to exercise reasonable care to inform [prescribing physicians] of the facts which make it likely to be dangerous.” Baldino v. Castagna, supra 505 Pa. at 244, 478 A.2d at 810. Accord: Incollingo v. Ewing, supra, 444 Pa. at 285 n. 8, 282 A.2d at 220 n. 8. Such information must be directed to physicians because of their unique role in the distribution of prescription drugs. A pharmacist cannot dispense such drugs himself but can do so only upon the direction of a physician. The benefits and risks have been weighed and the selection of the drug has been accomplished by the time that the patient-consumer presents the pharmacist with a prescription for a certain drug. Thus, as the trial court concluded, the absence of adequate warnings from the manufacturer at the time the drug is dispensed by the pharmacist does not impact upon the safe use of the drug as sold by the pharmacy. It is the physician, rather than the consumer, who must be made aware of the risks associated with the use of the drug and we can perceive no benefit to be derived from the imposition of strict liability upon the pharmacist who properly dispenses a prescription drug upon the prescription of a duly licensed physician.

We, therefore, affirm the entry of summary judgment in favor of appellee Rite Aid Corporation.

      . The term "merchant" is defined as "a person who deals in goods of the kind; or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction....” 13 Pa.C.S. § 2104.

      . Such a warranty is, of course, not applicable to the situation where the prescription drug has been adulterated as a result of the secret and undiscovered, deliberate criminal act of a third person.

      . Other courts which have addressed this issue have similarly declined to hold a retail pharmacist strictly liable as the retailer of a defective product, unreasonably dangerous to the consumer due to the absence of adequate warnings. See: Ramirez v. Richardson-Merrell, Inc. 628 F.Supp. 85 (E.D.Pa.1986); Jones v. Irvin, supra; Murphy v. E.R. Squibb & Sons, Inc., supra; Kinney v. Hutchinson, 449 So.2d 696 (La.Ct.App. 1984); Ullman v. Grant, supra; LeMire v. Garrard Drugs, supra; Batiste v. American Home Products Corp., 32 N.C.App. 1, 231 S.E.2d 269 (1977); Bichler v. Witting, supra.