author: HESTER, Judge:

text:
    514 A.2d 114
    COMMONWEALTH of Pennsylvania v. Walter STENHACH, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed July 31, 1986.

      Joseph A. Katarincic, Pittsburgh, for appellant.
    William A. Hebe, Wellsboro, for appellee.
    Andrew F. Schneider, Langhorne, amicus curiae.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   HESTER, Judge:

Two criminal defense attorneys have appealed from convictions for hindering prosecution and tampering with evidence arising from their conduct while representing a defendant in a murder trial. Appellants George and Walter Stenhach were young public defenders appointed to represent Richard Buchanan, a man charged with first degree murder. Following Buchanan’s directions, appellants recovered a rifle stock used in the homicide. Allegedly believing that disclosure of the rifle stock would be legally and ethically prohibited, appellants did not deliver it to the prosecutor until ordered to do so by the court during the prosecution’s case. After Buchanan’s conviction of third degree murder, appellants were charged with hindering prosecution, 18 Pa.C.S. § 5105(a)(3), tampering with physical evidence, § 4910(1), criminal conspiracy, § 903, and criminal solicitation, § 902. A jury found both appellants guilty of hindering prosecution, a third degree felony, and tampering, a second degree misdemeanor. In addition, George was convicted of solicitation, and Walter of conspiracy. Each was sentenced to twelve months probation and a fine of $750.

Their appeal raises questions relating to the interplay of the fifth and sixth amendments to the United States Constitution, the statutory attorney-client privilege, and the Pennsylvania Code of Professional Responsibility, in which appellants challenge their duty to deliver evidence to the prosecution. Appellants also raise a due process challenge to the criminal statutes which prohibit hindering prosecution and tampering with evidence when these statutes are applied to criminal defense attorneys, claiming the statutes are unconstitutionally overbroad; the statutory defense of justification; and allegations of numerous trial errors in evidentiary and other rulings. Amicus curiae briefs by the Pennsylvania Trial Lawyers Association, the National Association of Criminal Defense Lawyers and the Public Defender Association of Pennsylvania all support reversal of the judgments of sentence.

We reject appellants’ argument that their retention of physical evidence was proper under existing law. We hold, however, that the statutes under which they were convicted are unconstitutionally overbroad as applied to criminal defense attorneys. Accordingly, we do not address appellants’ claims of trial error, but order appellants discharged.

Background

In March, 1982, Theodore Young was killed in Potter County. The following day Richard Buchanan and an accomplice were arrested and charged with first degree murder. Appellant George Stenhach, part-time Public Defender of Potter County, undertook Buchanan’s defense immediately. He petitioned for appointment of an investigator to assist in Buchanan’s defense, and former police officer Daniel Weidner was appointed as Buchanan’s investigator. During a confidential conference among Stenhach, Weidner and Buchanan, Buchanan described the death of Theodore Young. He said that Young had attacked him with two knives and that during the attack, Young had died after he was shot, hit by Buchanan’s car, then struck by Buchanan’s rifle, causing the stock of the rifle to break off. Buchanan and his accomplice had then disposed of the weapons and other items relating to Young’s death. During the conference, Weidner and Buchanan prepared a map identifying the location of some of these items.

Appellant Walter Stenhach, George’s younger brother, was practicing law in partnership with George, and assisted in Buchanan’s defense. Appellants George and Walter Stenhach had graduated from law school in 1978 and 1980, respectively, and had been admitted to practice in Pennsylvania in 1979 and 1981. They discussed the information received from Buchanan, and decided to pursue the theory of self-defense and to attempt to gather evidence supporting that theory. Accordingly, they ordered Weidner to search for the items Buchanan had described, and to retrieve as many as he could find.

On the same day, Weidner found the broken rifle stock and brought it back to appellants’ office. He did not find the barrel, which was eventually discovered by the prosecutor and introduced into evidence at Buchanan’s trial. Weidner was unable to locate the knives allegedly used by the victim, and no knives were ever found. When Weidner delivered the rifle stock to appellants, they stored it inside a paper bag in a desk drawer in their office.

Weidner had been a police officer for twenty years and was performing his first defense investigation in the Buchanan case. He expressed his concern as many as twenty times during the five months before Buchanan’s trial that appellants were violating the law by withholding the rifle stock. Based on their research of case law, the Constitution, Pennsylvania statutes and the Pennsylvania Code of Professional Responsibility, appellants repeatedly told Weidner that the weapon was protected by the attorney-client privilege and that Weidner and appellants had a legal duty to preserve Buchanan’s confidential communications which led to discovery of the weapon.

On the fourth day of Buchanan’s murder trial, during an in-camera hearing, the prosecutor questioned Weidner about the rifle stock. Appellants objected on the ground that an answer would violate the attorney-client privilege. The trial judge overruled the objection, holding the privilege inapplicable to physical evidence, and ordered Weidner to answer. After Weidner testified how he had located and retrieved the rifle stock, the judge ordered its production, and appellants brought it from their office. The stock was not entered into evidence during Buchanan’s trial by the prosecution or by the defense.

After Buchanan’s conviction, the prosecutor, District Attorney Leber, charged appellants with hindering prosecution and tampering with evidence for withholding the rifle stock. Due to Leber’s role as a prospective witness against appellants, a prosecutor was appointed by the state attorney general’s office.

At appellants’ trial, the primary witnesses for the Commonwealth were Buchanan, Leber and Weidner. Due to Buchanan’s invocation of his fifth amendment privilege while his conviction was on direct appeal, the trial court allowed the transcript of Buchanan's testimony in his murder trial to be read into evidence against appellants to establish the evidentiary nature of the rifle stock in question. Leber testified concerning its concealment, its production, and the effect on the prosecution of Buchanan. Weidner testified about discovery and seizure of the evidence as well as appellants’ acts and statements regarding continuing retention of the weapon after its discovery.

Appellants in turn testified about the various authorities which allegedly justified their belief that they were obligated to retain the rifle stock to protect their client. They attempted to offer the expert testimony of law professor John Burkoff to establish a justification defense based on the ethical standards applicable to attorney conduct. The trial judge did not permit Burkoff to testify, nor did he instruct the jury on the defense of justification.

Following conviction and sentencing, this appeal was filed. Appellants argue four issues. First, they challenge the trial court’s interpretation of the statutes as requiring production of the physical evidence without a court order. Second, they argue they were denied due process of law in that the hindering prosecution and evidence tampering statutes are unconstitutionally vague or overbroad as applied to defense attorneys when literal compliance would require them to violate their statutory, ethical and constitutional duties to their clients. Third, they claim the trial court erred in refusing to permit presentation of a justification defense. Fourth, they argue that the trial court committed reversible error by: (a) preventing defense counsel from fully cross-examining key prosecution witnesses; (b) giving the jury erroneous instructions; (c) exhibiting to the jury a predisposition against appellants; (d) allowing the jury to consider irrelevant inflammatory evidence; (e) allowing the prosecutor to make emotional appeals to the jury based on inflammatory hypotheticals not related to the facts in evidence; and (f) ignoring the weight of the evidence establishing innocence.

The briefs of amicus curiae concentrate on the first two issues. We will address any independent points raised by amicus curiae where they relate to appellants’ arguments.

In reviewing the first two arguments, we have considered various public policies and concerns which underlie the rules of law at conflict in this case. We recognize the wider implications of this appeal, the circumstances which have motivated amicus curiae to address the court. Appellants’ convictions carry penalties much greater than the criminal sentences: attorneys convicted of felonies are routinely prohibited from practicing law. In addition, the criminal defense bar appears to be confused by contradictory standards pertaining to their practice and by the lack of judicial guidance in this area. Accordingly, we shall first identify the policies implicated by the facts of this case.

Policies

Appellants, the Commonwealth and amicus curiae all remind us of public policies and fundamental rights we should consider. Although our decision is made within the context of these policies, we summarize them briefly because they do not directly determine our decision.

Appellants urge us to give deepest consideration to the constitutional fifth and sixth amendment rights of criminal defendants, their clients. Citizens facing criminal charges must be able to obtain legal counsel free of the fear that their confidential communications will be used as evidence against them. The right not to “be compelled in any criminal case to be a witness against himself” would be empty if defense counsel, repeating information provided by a client, acted as a witness against him. The Pennsylvania Constitution, Article I, § 9, states the accused’s right against self-incrimination even more broadly than the federal Bill of Rights, stating that “he cannot be compelled to give evidence against himself.”

The sixth amendment provides the right to assistance of counsel. This means effective assistance of counsel, implicating a host of constitutional rights. An accused is entitled to representation by a learned professional who knows what is meant by “due process of law,” who will protect his client’s rights against unreasonable searches and seizures, self-incrimination and double jeopardy and who will enforce his client’s rights to the equal protection of the laws, to a speedy trial by an impartial jury and to confront witnesses against him. More specifically, effective assistance of counsel includes the requirement that counsel investigate the client’s claims and use the results of investigation in defense of the accused. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976); Commonwealth v. Manhart, 349 Pa.Super. 552, 503 A.2d 986 (1986).

Closely related are the rights underlying portions of the Pennsylvania Code of Professional Responsibility. An accused is entitled to an attorney who will represent him “zealously within the bounds of the law” and who will “preserve the confidences and secrets of a client.” Canons 7 and 4 of the Code. These ethical obligations of the lawyer clearly relate to the constitutional rights mentioned above, yet are not themselves to be considered as substantive law in the context of criminal proceedings, serving instead as a regulatory guide and basis for disciplinary action within the legal profession. Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984). The attorney-client privilege is codified at 42 Pa.C.S. § 5916. It provides that defense counsel “shall not be competent or permitted to testify to confidential communications made to him by his client.”

Most nebulous of the policies is our concern for “the administration of justice.” Commonwealth v. Maguigan, 323 Pa.Super. 317, 470 A.2d 611 (1983). Although the attorney-client privilege and constitutional rights such as the right against self-incrimination are “sometimes characterized as protecting someone who has violated the law, ... this reveals a fundamental misconception. The privilege is to protect, not the guilty, but the administration of justice. ‘[T]he theory ... is that the detriment to justice from a power to shut off inquiry to pertinent facts in court, will be outweighed by the benefits to justice (not to the client) from a franker disclosure in the lawyer’s office.’ ” Id., 323 Pa.Superior Ct. at 329, 470 A.2d at 616, quoting McCormick on Evidence 175 (2d ed.1972). The Pennsylvania Supreme Court has thus stated that “the damage to the administration of justice occurs when the sanctity of the confidence is improvidently violated, not when the evidence is given substantive consideration.” Estate of Kofsky, 487 Pa. 473, 482, 409 A.2d 1358, 1362 (1980).

Opposing the rights and policies identified above are those advanced by appellee, such as the right of the state and its citizens to the orderly administration of justice through enforcement of the criminal laws. If our system of justice requires frank disclosure between criminal defendants and their counsel, it must also require that lawyers act ethically, within the bounds of the law, so they may be perceived as officers of the court who are committed to proper administration of justice, not as subverters of justice. To exempt attorneys from the statutory proscriptions against tampering with evidence will not enhance public perception of lawyers as a positive force in the administration of justice, but will cast them in the public mind more as accessories to crime.

Another policy advanced by appellee is the truth-seeking function of the courts. Despite our societal and constitutional commitment to individual rights, it cannot be denied that protection of those rights may interfere with revelation of truth during a criminal trial. Clearly, seeking and revealing truth is an ideal of our criminal justice system. We recognize, however, the wisdom of Justice Black, dissenting in Williams v. Florida, 399 U.S. 78, 113-14, 90 S.Ct. 1893, 1912, 26 L.Ed.2d 446, 484 (1970):

A criminal trial is in part a search for truth. But it is also a system designed to protect “freedom” by insuring that no one is criminally punished unless the State has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty. That task is made more difficult by the Bill of Rights, and the Fifth Amendment may be one of the most difficult of the barriers to surmount. The Framers decided that the benefits to be derived from the kind of trial required by the Bill of Rights were well worth any loss in “efficiency” that resulted.

It is important to identify the rights and policies underlying this appeal, but they are so general they do not lend themselves readily to resolution of the narrow issues we must decide. Furthermore, it is obvious that there are significant policies supporting each side of this appeal, policies seemingly at war with each other. We do not believe it is helpful to explain our decision in terms of balancing policies, as if Buchanan’s fifth amendment rights were more weighty than the truth-seeking function of the judicial system. Such explications are a form of begging the question. Finally, these broad considerations focus far too much attention on the Buchanan case. We are not reviewing Buchanan’s conviction, nor his right to effective assistance of counsel; we are reviewing appellants’ convictions.

What is relevant to this case is the protection of constitutional rights inuring directly to appellants. We believe the primary question is whether appellants have been denied due process of law by application of a penal statute which is vague or overbroad. In this country we do not tolerate criminal statutes like those of the emperor Caligula, who wrote his laws in very fine print and displayed them high on tall pillars, “the more effectually to ensnare the people.” 1 W. Blackstone, Commentaries 46. We insist that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process____” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926). Within this context, we proceed to address appellants’ arguments.

Duty to Deliver

Appellants’ first argument is that they had no duty to turn over the rifle stock to the prosecutor until ordered to do so by the court. We reject this argument. Although we have no Pennsylvania cases on point, the decisions in other jurisdictions appear to be virtually unanimous in requiring a criminal defense attorney to deliver physical evidence in his possession to the prosecution without court order. It is true that most of the cases arose in the context of appeals from criminal convictions challenging the effectiveness of counsel who had turned over physical evidence, or in the context of litigation of discovery orders or in the context of contempt proceedings against attorneys who failed to produce evidence. The sole case in which an attorney was charged with a criminal offense resulted in the only holding that the concealed evidence was protected by the attorney-client privilege. We join the overwhelming majority of states which hold that physical evidence of crime in the possession of a criminal defense attorney is not subject to a privilege but must be delivered to the prosecution.

In re Gartley, 341 Pa.Super. 350, 491 A.2d 851 (1985), while not directly on point, provides guidance and support for our decision. Although the case was decided after the commission of the offenses charged against appellants herein, this court affirmed the proper execution of a carefully-tailored search warrant to seize a client’s business records from an attorney’s office. We stated that the use of an attorney’s office

as a haven for evidence material to an ongoing criminal investigation does not place it beyond the reach of a proper search pursuant to a warrant issued on probable cause; we will not restrain the Commonwealth’s efforts to obtain otherwise seizable evidence merely because it has been placed in the hands of an attorney. To hold otherwise would mean that a criminal suspect could shield evidence from discovery by the simple expedient of delivery to an attorney, a result we deem patently unreasonable.

Id., 341 Pa.Superior Ct. at 367, 491 A.2d at 860 (emphasis in original). Though the case did not involve the question of whether the attorney had a duty to deliver physical evidence sua sponte, we believe the quoted language provides strong support for our holding in this case.

Turning to the law in other jurisdictions, we note the much-quoted case of State v. Olwell, 64 Wash.2d 828, 394 P.2d 681 (1964). A criminal defense attorney had been held in contempt of court following his refusal to answer questions or produce weapons at a coroner’s inquest, in defiance of a subpoena duces tecum. The appellate court reversed the finding of contempt, holding that the subpoena was defective on its face for invading the confidential relationship between attorney and client so that refusal to testify against the client was not contemptuous. Id. at 833, 394 P.2d 681. The court went on to state that the attorney was required to produce the weapon on his own motion, and that the jury was not to learn the source of the evidence.

We do not, however, by so holding, mean to imply that evidence can be permanently withheld by the attorney under the claim of the attorney-client privilege. Here, we must consider the balancing process between the attorney-client privilege and the public interest in criminal investigation. We are in agreement that the attorney-client privilege is applicable to the knife held by appellant, but do not agree that the privilege warrants the attorney, as an officer of the court, from withholding it after being properly requested to produce the same. The attorney should not be a depository for criminal evidence (such as a knife, other weapons, stolen property, etc.), which in itself has little, if any, material value for the purposes of aiding counsel in the preparation of the defense of his client’s case. Such evidence given the attorney during legal consultation for information purposes and used by the attorney in preparing the defense of his client’s case whether or not the case ever goes to trial, could clearly be withheld for a reasonable period of time. It follows that the attorney, after a reasonable period, should, as an officer of the court, on his own motion turn the same over to the prosecution.
We think the attorney-client privilege should and can be preserved even though the attorney surrenders the evidence he has in his possession. The prosecution, upon receipt of such evidence from an attorney, where charge against the attorney’s client is contemplated (presently or in the future), should be well aware of the existence of the attorney-client privilege. Therefore, the state when attempting to introduce such evidence at the trial, should take extreme precautions to make certain that the source of the evidence is not disclosed in the presence of the jury and prejudicial error is not committed. By thus allowing the prosecution to recover such evidence, the public interest is served, and by refusing the prosecution an opportunity to disclose the source of the evidence, the client’s privilege is preserved and a balance is reached between these conflicting interests.

Id. at 833-34, 394 P.2d 681. We have quoted at length from Olwell because most of the cases which follow cite or quote it and raise the same issues addressed in the above passage.

People v. Meredith, 29 Cal.3d 682, 175 Cal.Rptr. 612, 631 P.2d 46 (1981), reached similar conclusions. A murder defendant told his attorney where he had abandoned physical evidence of the crime. The attorney’s investigator retrieved the evidence, the attorney examined it and then turned it over to the police, and the evidence was admitted at trial along with testimony of the investigator describing the location of the evidence. On appeal from his conviction, the defendant conceded the admissibility of the physical evidence, but challenged the admissibility of the testimony regarding its location. The court held that the testimony did not violate the attorney-client privilege. “When defense counsel alters or removes physical evidence, he necessarily deprives the prosecution of the opportunity to observe that evidence in its original condition or location____ To extend the attorney-client privilege to a case in which the defense removed evidence might encourage defense counsel to race the police to seize critical evidence.” Id. 175 Cal.Rptr. at 612, 631 P.2d at 46.

In People v. Lee, 83 Cal.Rptr. 715, 3 Cal.App.3d 514 (1970), the court also concluded that physical evidence in the possession of an attorney was not privileged. The defendant’s wife had given incriminating evidence to his attorney, and the attorney in turn gave it to a third party to hold pending judicial resolution of the proper disposition of the evidence, giving the prosecutor notice of his action. The prosecutor obtained a search warrant from the trial court, seized the evidence and introduced it at trial, together with testimony identifying the defendant’s wife as the source. On appeal from his conviction for attempted murder, the court stated that

the controlling question is whether the State’s seizure of the evidence violated defendant’s rights. It did not. [Counsel did not have] the right to withhold the evidence from the State by asserting an attorney-client privilege. It has been held “an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the instrumentalities of a crime.” (In re Ryder, 381 F.2d 713, 714 [4th Cir.1967].) A defendant in a criminal case may not permanently sequester physical evidence such as a weapon or other article used in the perpetration of a crime by delivering it to his attorney____
Although, as the Court held in State v. Olwell, supra, the fact that the client delivered such evidence to his attorney may be privileged, the physical object itself does not become privileged merely by reason of its transmission to the attorney.

Id. at 722, 3 Cal.App.3d at 526. The court also approved the testimony regarding the source, for the attorney-client privilege does not protect information coming to the attorney from a third person unless such person is the client’s agent. Id. at 723, 3 Cal.App.3d at 527.

These California decisions were followed by the Court of Appeals for the Ninth Circuit on federal habeas corpus review in Clutchette v. Rushen, 770 F.2d 1469 (9th Cir. 1985). The defendant told his attorney where certain evidence was located and the attorney told his investigator to retrieve it; the investigator did so, but gave it directly to the police. The evidence was introduced at trial along with the investigator’s description of its location. The court held that neither the sixth amendment right to effective assistance of counsel nor the attorney-client privilege had been violated. The trial court had “scrupulously” prevented the prosecution from disclosing the source of information leading to discovery of the evidence; the source was privileged but the evidence itself lost its privileged character when the attorney ordered it removed from its original location. The court stated that “California law requires that a defense attorney must, after a reasonable time, turn evidence taken from its original resting place over to the prosecution,” citing People v. Meredith, supra.

The issue in Anderson v. State, 297 So.2d 871 (Fla.App. 1974), was whether an attorney could be required to testify during his client’s trial as to the source of stolen property he delivered to the police after receiving it from his client who had been charged with receiving stolen property. The court stated that to require the attorney “to testify under these circumstances would be to do violence to the fundamental concept of the attorney-client privilege____ Therefore, we hold that [the attorney cannot] be required to divulge the source of the stolen items, and in order for the privilege to be meaningfully preserved, the state cannot introduce evidence that they received the items from [the attorney’s] office.” Id. at 875.

Morrell v. State, 575 P.2d 1200 (Alaska Supreme Ct. 1978), is another direct appeal from a criminal conviction raising the issue of ineffectiveness of trial counsel following his delivery of incriminating physical evidence to the police. A third party had discovered the evidence and brought it to the attorney. Unsure of his duties, he sought guidance from the ethics committee of the state bar association. The committee advised him to return the evidence to the finder, explaining the laws pertaining to concealment of evidence. Counsel did so, and assisted the third party in delivering the evidence to the police. The court held that counsel was not ineffective, stating:

As [appellant] notes, authority in this area is surprisingly sparse. The existing authority seems to indicate, however, that a criminal defense attorney has an obligation to turn over to the prosecution physical evidence which comes into his possession, especially where the evidence comes into the attorney’s possession through acts of a third party who is neither a client of the attorney nor an agent of a client. After turning over such evidence, an attorney may have either a right or a duty to remain silent as to the circumstances under which he obtained such evidence____

Id. at 1207. After reviewing cases involving duties of attorneys in possession of incriminating physical evidence, the court summarized their holdings.

From the foregoing cases emerges the rule that a criminal defense attorney must turn over to the prosecution real evidence that the attorney obtains from his client. Further, if the evidence is obtained from a non-client third party who is not acting for the client, then the privilege to refuse to testify concerning the manner in which the evidence was obtained is inapplicable.

Id. at 1210.

Another case in which defense counsel, who had received physical evidence incriminating his client from a third party, sought the advice of the state bar association ethics committee is Hitch v. Pima County Superior Court, 146 Ariz. 588, 708 P.2d 72 (Supreme Ct.1985). The committee’s opinion advised him he had a legal obligation to deliver the evidence to the prosecution. He informed the court of the evidence and the ethics committee opinion, whereupon the court ordered him to turn over the evidence and to withdraw from the case. His client, prior to trial, appealed that order.

The Arizona Supreme Court, referring to “Ethical Standard to Guide [A Lawyer] Who Receives Physical Evidence Implicating His Client in Criminal Conduct,” proposed by the Ethics Committee of the Criminal Justice Section of the American Bar Association, 29 Crim.L.Rptr. 2465-66 (August 26, 1981), held that the attorney might return the evidence to its source if he could do so without destroying the evidence, or he must turn it over to the prosecution. Counsel’s reasonable belief that the third-party source, a friend of the client, might cause destruction or concealment of the evidence necessitated its delivery to the prosecution. The court also rejected the procedure utilized in the District of Columbia whereby such evidence is given to the local bar association for subsequent delivery to the prosecutor. The court believed that such anonymous transmittal would frequently destroy the evidentiary significance of the physical item, which often depends upon where and under what circumstances it was found. Citing People v. Nash, 110 Mich.App. 428, 447, 313 N.W.2d 307, 314 (1981), the court stated that “it is simpler and more direct for defendant’s attorney to turn the matter over to the state as long as it is understood that the prosecutor may not mention in front of the jury the fact that the evidence came from the defendant or his attorney.” Hitch, supra, 708 P.2d at 79. Finding no dereliction in the attorney’s representation of his client, the court held that he need not withdraw unless “the client [believes] his attorney no longer has his best interest in mind.” Id.

The only case we have found involving criminal prosecution of an attorney for failure to deliver physical evidence is People v. Belge, 83 Misc.2d 186, 372 N.Y.S.2d 798 (1975). Representing a murder defendant and relying on an insanity defense, counsel investigated his client’s claim that he had committed other murders and discovered one of the bodies hidden in a cemetery. He left the body in situ and did not reveal his discovery until his client’s trial. After the murder trial, counsel was indicted for the offenses of failure to assure that a decent burial be accorded the dead and failure to report to authorities the death of a person without medical attendance. Not surprisingly,

Public indignation reached the fever pitch____ A hue and cry went up from the press and other news media____ However, the [Constitution] attempts to preserve the dignity of the individual and to do that guarantees him the services of an attorney who will bring to the bar and to the bench every conceivable protection from the inroads of the state against such rights as are vested in the [Constitution for one accused of crime. Among those substantial constitutional rights is that a defendant does not have to incriminate himself. His attorneys were bound to uphold that concept and [to] maintain what has been called a sacred trust of confidentiality.

372 N.Y.S.2d at 801-02. The court held that counsel had “conducted himself as an officer of this Court with all the zeal at his command to protect the constitutional rights of his client,” id. at 803, and dismissed the indictment.

The court did state, however, that the attorney’s conduct in balancing his client’s rights against the public interest in the administration of justice was, “in a sense, obstruction of justice.” The court believed the grand jury was “grasping at straws,” and that if instead of charging the attorney with violation of a “pseudo-criminal statute,” it had charged him with obstruction of justice under a proper statute, the court would have been faced with a much more difficult decision. Id.

With the exception of Belge, id., the foregoing cases provide a consistent body of law, which we adopt. To summarize, a criminal defense attorney in possession of physical evidence incriminating his client may, after a reasonable time for examination, return it to its source if he can do so without hindering the apprehension, prosecution, conviction or punishment of another and without altering, destroying or concealing it or impairing its verity or availability in any pending or imminent investigation or proceeding. Otherwise, he must deliver it to the prosecution on his own motion. In the latter event, the prosecution is entitled to use the physical evidence as well as information pertaining to its condition, location and discovery but may not disclose to a fact-finder the source of the evidence. We thus reject appellants’ contention that their conduct was proper and that they had no duty to deliver the rifle stock to the prosecution until they were ordered to do so.

Due Process: Overbreadth

Appellants’ second argument is that the statutes against hindering prosecution and tampering with evidence are unconstitutionally vague or overbroad as applied to attorneys engaged in the representation of criminal defendants, and hence their enforcement against appellants was a denial of due process. We agree. Our discussion of appellants’ first argument, while holding that defense attorneys have an affirmative duty to deliver physical evidence to the prosecution, clearly demonstrates that there are conflicting concerns facing defense attorneys in possession of incriminating physical evidence. Moreover, we are not aware of any case in any state in which an attorney was convicted of a crime for conduct similar to that of appellants. Due to the fact that the statutes in question prohibit conduct of defense attorneys which is constitutionally protected, we hold the statutes unconstitutionally overbroad as applied to appellants and vacate their judgments of sentence.

Appellants have challenged the statutes on grounds of both vagueness and overbreadth, closely related to infirmities which often merge conceptually and in case law. Constitutionally vague statutes proscribe activity in terms so ambiguous that reasonable persons may differ as to what is actually prohibited. Examples are found in Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964), which struck down a statute prohibiting “subversive” organizations; Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974), which invalidated a statute outlawing treatment of a United States flag “contemptuously”; and Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971), which voided an ordinance against groups conducting themselves on sidewalks “in a manner annoying to persons passing by.”

Overbroad statutes authorize the punishment of constitutionally protected conduct; where the language of the statute is not vague, but literally encompasses a variety of protected activity, it cannot be read literally. In an over-broad statute, the clarity of the language is delusive, for the language must be recast to separate proper from improper applications. One example of overbreadth is found in Coates v. Cincinnati, supra, which, in addition to using the vague term “annoying,” criminalized the exercise of the right of assembly guaranteed by the first amendment. The ordinance could be used against the association of people whose ideas, lifestyle or physical appearance is resented by their fellow citizens, and was thus “aimed directly at activity protected by the Constitution.” Id. at 616, 91 S.Ct. at 1689, 29 L.Ed.2d at 218. Another example is Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), holding overbroad a statute prohibiting “opprobrious language,” for the statute could be applied against constitutionally protected speech — words that do not inflict injury or tend to incite an immediate breach of the peace.

Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), rejecting an overbreadth challenge, sets forth a useful definition of the term.

A clear and precise enactment may nevertheless be “overbroad” if in its reach it prohibits constitutionally protected conduct. Although appellant does not claim that, as applied to him, the anti noise ordinance has punished protected expressive activity, he claims that the ordinance is overbroad on its face. Because overbroad laws, like vague ones, deter privileged activity, our cases firmly establish appellant’s standing to raise an over-breadth challenge. The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished____

Id. at 114-15, 92 S.Ct. at 2302, 33 L.Ed.2d at 231.

Both overbroad and vague statutes deny due process in two ways: they do not give fair notice to people of ordinary intelligence that their contemplated activity may be unlawful, and they do not set reasonably clear guidelines for law enforcement officials and courts, thus inviting arbitrary and discriminatory enforcement. Smith v. Goguen, supra; Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Coates v. Cincinnati, supra.

We hold that the statutes at issue in this case are overbroad when applied to attorneys representing criminal defendants. The literal language of each section is relatively clear. Section 5105(a)(3) states that a person is guilty of hindering prosecution “if, with intent to hinder the ... conviction ... of another for crime, he ... conceals ... evidence of the crime ... regardless of its admissibility in evidence____” Section 4910 provides that a person is guilty of tampering with physical evidence “if, believing that an official proceeding ... is pending ..., he ... conceals or removes any record, document or thing with intent to impair its verity or availability in such proceeding____” The clarity of the language is delusive, for it prohibits conduct which cannot constitutionally be prohibited along with conduct which clearly can. In certain circumstances, an attorney might conceal evidence with the intent of impairing its availability in his client’s criminal trial and with the intent of hindering his client’s conviction.

An example of such circumstances might involve an attorney whose client gives him a handwritten account of involvement in the crime he is charged with committing. If the attorney were to destroy the statement or retain it in his file, he would be guilty of violating the literal terms of the statutes against hindering prosecution and tampering with evidence. Yet no one would suggest the attorney should give the document to the prosecutor; indeed, to do so would be an egregious violation of the attorney’s duties to his client.

The functions of the attorney counseling a criminal defendant have a constitutional dimension. In opposing unreasonable searches and seizures, in preventing self-incrimination and in rendering effective assistance of counsel, the defense attorney is charged with the protection of fourth, fifth and sixth amendment rights. In performing these functions, the defense attorney might run afoul of the statutes against hindering prosecution and tampering with evidence; thus he may not have adequate notice of what conduct might be a crime, and he is subject to the threat of arbitrary and discriminatory prosecution.

Beyond the obvious example stated above, there is little or no guidance for an attorney to know when he has crossed the invisible line into an area of criminal behavior. There are no prior cases in this jurisdiction in which a criminal defense attorney has been convicted of violating these statutes. We have discussed many of the similar cases from other jurisdictions, none of which addresses the precise issues facing us in this case. Although we focused on the uniformity we found in those cases as to disposition of physical evidence, they express a great deal of doubt and reflect great diversity as to the grayer areas of ethical usage of evidence of all sorts. Attorneys face a distressing paucity of dispositive precedent to guide them in balancing their duty of zealous representation against their duty as officers of the court. Volumes are filled with other potential sources of guidance, such as ethical codes and comments thereto, both proposed and adopted, advisory opinions by ethics committees and myriad articles in legal periodicals. The plethora of writings exemplifies the profession’s concern with the problem, and although they may help to clarify some of the issues, they fail to answer many of the difficult questions in this area of legal practice.

In the cases discussed in the preceding section, we find many statements which belie the seeming consistency in their approach to the problem. People v. Belge, supra, of course, dismissing the indictment against an attorney who had withheld evidence, focus,ed on the rights of a criminal defendant rather than the society’s interest in criminal law enforcement:

A trial is in part a search for truth, but it is only partly a search for truth. The mantle of innocence is flung over the defendant to such an extent that he is safeguarded by rules of evidence which frequently keep out absolute truth, much to the chagrin of juries. Nevertheless, this has been a part of our system since our laws were taken from the laws of England and over these many years has been found to best protect a balance between the rights of the individual and the rights of society.

Belge, supra, 372 N.Y.S.2d at 801. Another example is In re Gartley, supra, wherein this court stated:

Not only is effective assistance of counsel a constitutional mandate, it is also necessary to an adversary system of justice. Assuredly, counsel’s assistance can be made safely and readily available only when the client is free from the apprehension of disclosure.

Gartley, supra, 341 Pa.Superior Ct. at 365-367, 491 A.2d at 859-60. Similarly, in Commonwealth v. Maguigan, supra, we wrote:

It therefore appears that, whatever its exact dimensions, the interests of justice exception is very narrow, extending to such situations as those in which “the client’s rights or interests cannot be adversely affected [by disclosure].” Indeed, it is evident that this must be so. Otherwise the exception would devour the rule. For the interests of justice are always “frustrated” by the exercise of the privilege in the sense that the prosecutor is unable to learn from the attorney what he would like to learn. As already discussed, however, a true understanding of the interests of justice carries with it an appreciation of the fact that free communication between the client and attorney must be fostered; and as we have said, in Cohen [v. Jenkintown Cab Co., 238 Pa.Super. 456, 357 A.2d 689 (1976)] and again in Brennan, that means that any exception to the privilege must be narrowly confined, all doubts being resolved in favor of non-disclosure.

Maguigan, supra, 323 Pa.Superior Ct. at 339, 470 A.2d at 622. The Maguigan opinion referred to the decision in Brennan v. Brennan, 281 Pa.Super. 362, 371-72, 422 A.2d 510, 514-15 (1980), in which we stated that the attorney-client privilege

is not concerned with prejudice, the ascertainment of the truth, or the reliability of attorney-client communications, but only to foster a confidence between an advocate and his client that will lead to a trusting and open dialogue.
Moreover, in making the determination of whether the interests of justice may be frustrated by the exercise of the privilege, the court should resolve all doubts in favor of non-disclosure, so that a client should not be chagrined to learn that the confidences that he conveyed to his attorney have been revealed to his detriment and without his consent.

(Emphasis in original.) Finally, Hitch v. Pima County Superior Court, supra, although holding that an attorney has a duty to deliver incriminating evidence to the prosecutor, added:

We note also that the lawyer’s role as a zealous advocate is an important one, not only for the client but for the administration of justice. We have chosen an adversary system of justice in which, in theory, the state and the defendant meet as equals — “strength against strength, resource against resource, argument against argument.” United States v. Bagley, 473 U.S. 667, — n. 2,105 S.Ct. 3375, 3390 n. 2, 87 L.Ed.2d 481, 486 n. 2 (1985) (Marshall, J., dissenting). In order to close the gap between theory and practice and thereby ensure that the system is working properly, a defendant must have an attorney who will fight against the powerful resources of the state. It is only when this occurs that we can be assured that the system is functioning properly and only the guilty are convicted.

Hitch, supra, 708 P.2d at 76.

Two cases cited in the previous section involved attorneys who had sought advisory opinions from ethics committees when confronted with problems related to disposition of physical evidence. Their action was salutory, but underscores the dilemma facing criminal defense attorneys in similar situations. Not only is the resort to guidance from an ethics committee a time-consuming process, it is a process totally inconsistent with the precision which must attend a valid criminal statute to inform its subjects of what specific behavior is proscribed.

Another symbol of the dilemma is its extensive treatment in legal periodicals. Of the many articles which have been cited by the parties in this case, we have found several to be helpful and noteworthy. Nonetheless, the writings exemplify a variety of approaches and suggestions, and indicate that an evidentiary problem related to incriminating evidence might arise in divers contexts in the representation of criminal defendants. It is not incumbent upon attorneys to digest the legal periodicals in order to conform their conduct to a criminal statute. The statutes involved in this case embrace conduct which is constitutionally protected as well as conduct which may validly be prohibited, and there is no line between the two which can be ascertained with any assurance whatsoever.

Even if it were possible, it is not the function of this court to provide an advisory opinion as to various examples of attorney conduct not involved in this case which might or might not violate the statutes we are reviewing. We note that other jurisdictions have enacted criminal statutes which address the unique role of defense attorneys in the administration of criminal justice and do not subject them to rules identical with those applicable to the public. See Clark v. State, 159 Tex.Cr.R. 187, 261 S.W.2d 339, cert. denied, 346 U.S. 855, 74 S.Ct. 69, 98 L.Ed. 369 (1953) (statute specifically excluded from liability one who aids an offender in preparing his defense). We note, also, as the Pennsylvania Supreme Court iterated in Estate of Pedrick, supra, that the courts have the power, outside the context of criminal sanctions, to regulate the conduct of attorneys practicing before them, and that the Pennsylvania Supreme Court has established a Disciplinary Board together with comprehensive rules for dealing with apparent attorney misconduct. Id., 505 Pa. at 542, 482 A.2d at 221.

For these reasons, we hold that the statutes which prohibit hindering prosecution and tampering with physical evidence are unconstitutionally overbroad when applied to attorneys representing criminal defendants.

Accordingly, the judgments of sentence are vacated and appellants discharged.

      . We address the constitutionality of the statutes against tampering with physical evidence, 18 Pa.C.S. § 4910, and hindering prosecution, 18 Pa.C.S. § 5101, only. Appellants’ convictions of solicitation, 18 Pa.C.S. § 902, and conspiracy, 18 Pa.C.S. § 903, are vacated due to their pendant relationship to the substantive statutes.

      . The court in Hitch, supra, explained the result of seeking advice in that case:
      We note that the prosecution in this matter has been delayed for over a year while this issue is being resolved. We believe that the recourse to the State Bar Ethics Committee, while proper and commendable, resulted in an excessive delay. We hope that in the future the State Bar Ethics Committee will be more prompt in responding to requests for opinions when, as here, a criminal prosecution is held in abeyance awaiting the opinion of the Committee.

        Id. 708 P.2d at 79 n. 3.

      . See Comment, Ethics, Law and Loyalty: The Attorney’s Duty to Turn Over Incriminating Physical Evidence, 32 Stan.L.Rev. 977 (1980); Comment, The Right of a Criminal Defense Attorney to Withhold Physical Evidence Received from His Client, 38 U.Chi.L.Rev. 211 (1970); Comment, Disclosure of Incriminating Physical Evidence; The Defense Attorney’s Dilemma, 52 U.Colo.L.Rev. 419 (1981).


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    514 A.2d 128
    Linda C. SIMMONS v. Edward J. SIMMONS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1986.
    Filed Aug. 12, 1986.

      Daniel L. Carn, York, for appellant.
    Daniel W. Shoemaker, York, for appellee.
    Before WIEAND, MONTEMURO and BECK, JJ.:
   BECK, Judge:

In this appeal we are asked to determine whether either a levy or a sale of a judgment debtor’s personalty pursuant to a writ of execution satisfies the judgment for which the writ was issued when the amount realized through the execution process by the judgment/execution creditor is less than the full sum of the judgment sought to be enforced by the writ of execution. We hold that under such factual circumstances, the judgment is not satisfied but is discharged only to the extent of the proceeds actually obtained by the judgment/execution creditor.

Appellee-wife Linda Simmons acquired against appellant-husband Edward Simmons a judgment for $3024.60 representing child support arrearages. To enforce the judgment, wife obtained the issuance of a writ of execution which directed the sheriff of York County to seize certain items of husband’s personal property. The sheriff accordingly seized husband’s specified personalty which was subsequently sold at a sheriff’s sale. At the sale, wife purchased husband’s pop-up camper and Bronco II vehicle for $89.34, the sheriff’s costs in the execution procedure.

As a result of the sheriff’s sale, wife obtained the camper and Bronco II subject to the claims of the credit company which had lent husband the purchase money for those items and, apparently, had a security interest in them. After the sheriff’s sale, the camper and Bronco II were taken by the credit company in payment of the balance of the purchase money loans made to husband. Due to the sheriff’s sale of the camper and Bronco II to wife, husband requested that wife have the judgment against him marked satisfied. Wife refused to do so.

The parties’ dispute concerning the entry of satisfaction of the judgment was submitted to the Court of Common Pleas of York County which after a hearing on the matter, decided that since wife did not realize any gain from her purchase of the camper and Bronco II, husband was not entitled to have the judgment against him marked satisfied. From the court order denying his request for entry of satisfaction, husband now appeals.

Under the Pennsylvania Rules of Civil Procedure, a judgment for support arrearages is enforceable by execution upon the judgment. Pa.R.C.P. Nos. 1910.20, 1910.23. To initiate the execution process, the judgment creditor files a praecipe for a writ of execution with the prothonotary of the county where the judgment for support arrearages has been entered. Pa.R.C.P. No. 3103. The prothonotary then issues a writ of execution which contains a notice to the judgment debtor and instructions to the county sheriff concerning the execution. Pa.R.C.P. No. 3252. The notice advises the judgment debtor that his property may be taken through the execution process in an attempt to have the judgment against him satisfied. In addition, the notice explains that some of the judgment debtor’s property may be exempt from seizure. Pa.R.C.P. Nos. 3123, 3123.1, 3252; but see 42 Pa.C.S.A. § 8123(b) relating particularly to property exemptions in the context of judgments for support. Finally, the notice informs the judgment debtor that he has a right to present a legal defense to prevent the seizure of his property. Pa.R.C.P. Nos. 3119, 3121, 3123, 3123.1, 3252.

The instructions to the sheriff direct the sheriff to levy upon the judgment debtor’s property specified in the writ and to sell the judgment debtor’s interest therein. Pa.R. C.P. Nos. 3107, 3108, 3109, 3124, 3252. In the context of an execution upon a judgment, a levy consists of a sheriff’s actual or constructive seizure of the judgment debtor’s property. Duncan’s Appeal, 37 Pa. 500 (1860); Welsh v. Bell, 32 Pa. 12 (1858); see also Carey v. Bright, 58 Pa. 70 (1868); Mills v. Jacobs, 131 Pa.Super. 469, 200 A. 233 (1938). “The levy is an assertion of title by the sheriff, amounting at least to a legal divestiture of the possession of the [judgment debtor], and such as would subject the officer making it to an action of trespass, but for the protection of the execution.” Duncan’s Appeal, 37 Pa. at 502; Welsh.

Therefore, to make a valid levy on a judgment debtor’s tangible personal property, the sheriff must prevent the judgment debtor’s immediate enjoyment of the property by either assuming exclusive, physical possession of the personalty or openly exercising power or control over the personalty. Duncan’s Appeal; Welsh; see e.g., Pa.R.C.P. Nos. 3109, 3127. A sheriff’s levy on the judgment debtor’s property listed in the writ of execution constitutes service of the writ upon the judgment debtor where, as in the case sub judice, the writ directs the sheriff to levy upon only tangible personalty. Pa.R.C.P. No. 3108(a)(1).

After at least six days’ prior public notice, levied upon personalty adequate in amount to satisfy the judgment, interest and likely execution costs may be sold by the sheriff at a public sale. Pa.R.C.P. Nos. 3124, 3128. The judgment/execution creditor must “pay to the sheriff all costs, charges and expenses incident to the execution, the maintenance of the lien of the execution and the preservation of the [levied upon] property. These items shall be deemed taxable costs for refund to the [judgment/execution creditor] from the proceeds of the [sheriff’s sale]____” Pa.R.C.P. No. 3138.

If the judgment/execution creditor or any other creditor entitled to share the proceeds of the sheriff’s sale purchases the property offered at the sale, the sheriff must “accept on account of the purchase price the receipt of the purchaser up to the amount of the proceeds to which [the creditor] is entitled.” Pa.R.C.P. No. 3133. Nevertheless, the “sheriff may require payment in cash of all legal costs distributable from the proceeds of the sale.” Id. The proceeds of the sale, if any, are distributed in accordance with Pa.R.C.P. Nos. 3136 and 3137. Thereafter, the sheriff must make a return to the prothonotary who issued the writ of execution and must include in the return any schedule of distribution that was utilized. Pa.R.C.P. No. 3139.

Following the sheriff’s sale, a judgment debtor may, in writing, request that a judgment creditor who has received satisfaction of a judgment enter satisfaction in the prothonotary’s office where the judgment is outstanding. 42 Pa.C. S.A. § 8104(a).

Against the backdrop of the procedural steps involved in executing on a judgment, we now consider the arguments raised by husband in the present appeal. Husband contends first that, in and of itself, the levy upon (sheriffs seizure of) his personal property sufficed to discharge fully the judgment underlying wife’s writ of execution and that he is thus entitled to have the judgment marked satisfied regardless of the outcome of the sheriff’s sale of the personalty. To bolster his contention, husband cites two nineteenth century cases, Lyon v. Hampton, 20 Pa. 46 (1852), and its precursor, Hunt v. Breading, 12 Serg. & Rawle 37 (1824).

Although Lyon and Hunt contain general language supportive of husband’s position, an examination of the factual postures of the two cases and consideration of the expository analyses in other appellate court decisions on judgment executions reveal that the broad wording which husband has noted in Lyon and Hunt does not have broad application.

The Pennsylvania Supreme court stated in Lyon and Hunt that “[sjeizing goods in execution to the value of the debt, is a discharge of all responsibility on the part of the debtor, and consequently, a discharge of the judgment____” Hunt, 12 Serg. & Rawle at 41; Lyon, 20 Pa. at 49. However, this statement was merely an expression of the rule of junior encumbrances which dictates that if a senior creditor can obtain satisfaction of a judgment without detriment to a junior creditor, the senior creditor must do so. In other words, if a senior creditor’s judgment can be satisfied from the proceeds of a first levy, the senior creditor is not permitted to forego the proceeds of that levy and direct a second levy against other property of the judgment debtor to the prejudice of a junior creditor who has a judgment only against the property which is the subject of the second levy. Burk, Thomas & Co. ’s Appeal, 89 Pa. 398 (1879); Campbell, Bredin and Co. ’s Appeal, 32 Pa. 88 (1858); J.R. Clausen & Son v. Bellevue Building & Loan Assn., 7 Pa.Super. 217 (1898).

A brief discussion of Hunt will illustrate. In Hunt, an execution creditor attempted to forego the advantage of a levy upon personalty of the judgment debtor in order to acquire a right to the benefits of a levy on the judgment debtor’s realty. But since the execution creditor’s pursuance of relief on the realty instead of the personalty would have detrimentally affected a junior creditor’s lien on the judgment debtor’s realty, the Supreme Court refused to permit the execution creditor to abandon the levy on the judgment debtor’s personalty. Thus, the Supreme Court held in Hunt and its successor Lyon that a levy on a judgment debtor’s personalty in an amount adequate to cover the execution creditor’s judgment suspends the execution creditor’s right to make a second levy on property of the judgment debtor where the creditor’s relinquishment of the benefits of the first levy would prejudice the position of a junior creditor of the judgment debtor. Burk, Thomas & Co. ’s Appeal; Campbell, Bredin and Co. ’s Appeal; J.R. Clausen & Son; 14 Standard Pennsylvania Practice 2d § 78:26, at 30. “‘No.more was determined in Hunt v. Breading than that an execution-creditor, whose levy has kept others at bay, shall not abandon it and assign his judgment for the consideration of payment, as an existing lien on the debtor’s land.’ ” Campbell, Bredin and Co. ’s Appeal, 32 Pa. at 92 (citation omitted).

The rule recognized in Hunt and Lyon has been modified by more recent appellate court decisions. In Burk, Thomas & Co.’s Appeal, 89 Pa. at 401, the Pennsylvania Supreme Court observed that

[i]f an older judgment-creditor ... levies ... upon personal property, these acts alone neither pay his debt, nor postpone his lien upon the debtor’s land to that of a junior judgment____ The dicta found in a number of cases resting on Hunt v. Breading, would not stand on the present rule. Yet it is as true now as then that, as between distributees [creditors], what does not amount to a satisfaction of the debt, as between debtor and creditor, may postpone a prior lien-creditor to a junior one. But postponement must be on other grounds than satisfaction of the debt by a mere levy of goods.

See also Campbell, Bredin and Co.’s Appeal; J.R. Clausen & Son.

In any event, the facts of the instant appeal are clearly distinguishable from those in Hunt and its progeny. The cases premised upon Hunt concern the effect between creditors of a levy on a judgment debtor’s goods whereas the present appeal concerns the effect between the execution creditor and the judgment debtor of the levy on the debtor’s personalty. Unlike the execution creditors in Hunt and Lyon, for example, wife has not tried to avoid the outcome of a first levy in order to be entitled to the proceeds of a second levy on other property of the judgment debtor. Wife has not attempted to abandon any benefits of a prior levy and to endanger thereby the position of a junior creditor. To the contrary, wife has sought to realize a gain from her first levy against husband’s property which culminated in the sheriff’s sale of husband’s Bronco II and camper. Thus, the holding in Hunt and its successors is inapposite to a resolution of the current appeal.

The significance of a levy on a judgment debtor’s property as it affects the relationship between the execution creditor and the judgment debtor, was explained by the Pennsylvania Supreme Court in Lytle v. Mehaffy, 8 Watts 267, 275 (1839):

It was said that the reason why a bare seizure [levy] amounted to a satisfaction of the debt, was, because the defendant [judgment debtor] in the execution thereby lost his goods and became divested of his property in them. But this ... is not so to the full extent claimed; for it has never been said, much less adjudged, that the officer [sheriff], the creditor or any body else becomes vested, by means of the seizure alone, with absolute property in the goods. If the seizure, then, does not change or vest the absolute property in some other person than the defendant [judgment debtor] in the execution, it must, of course, still, remain in him; and no doubt it does until a sale is made, by the officer [sheriff], of the goods, which transfers and vests the whole right of property in the purchaser at the sale. The officer [sheriff], by the seizure under the execution, acquires merely a special property in the goods, which would enable him to maintain trespass or trover for them if improperly taken from him; and under the authority of the law, he is invested with full power to sell and transfer the absolute property in them____ It is only a power coupled with an interest at most, that the officer [sheriff] has over the goods, because a payment or tender [on behalf of the judgment debtor] of the [judgment] money to him at any time before he has effected a sale of them, will divest him [the sheriff of all right in and authority over them. Therefore, when it is said that the seizure of a defendant’s [judgment debtor’s] personal property, by virtue of an execution against him either divests him of his right of property therein, or amounts to a satisfaction of the debt, it must be understood to be so only sub modo, in a qualified and limited sense.

See also J.R. Clausen & Son.

In other words, as between the execution creditor and the judgment debtor, a levy upon the judgment debtor’s property to the value of the underlying judgment does not constitute a satisfaction of the judgment because the levy does not completely divest the judgment debtor of his interest in the levied upon property and thus does not ensure that the execution creditor’s judgment will be paid from any fruit of the levy. Lytle; J.R. Clausen & Son. At any time before the sheriff’s salé of the levied upon property, the levy may be defeated by acts of the judgment debtor or others. Lytle; J.R. Clausen & Son; see Hoard v. Wilcox, 47 Pa. 51 (1864).

Having determined that the mere levy on husband’s personalty did not satisfy wife’s judgment for support arrearages, we now consider whether, as husband alternatively asserts, the sheriffs sale of husband’s personal property fully discharged the judgment against husband.

A sheriff’s sale of levied upon property passes to the purchaser any interest which the judgment debtor may have had in that property. Taylor v. Bailey, 323 Pa. 278, 185 A. 699 (1936); Wells v. Van Dyke, 106 Pa. 111 (1884); Lytle; J.R. Clausen & Son; Pa.R.C.P. No. 3252; 13 Standard Pennsylvania Practice 2d § 75:45. Consequently, when a judgment debtor “has been deprived of his property by the [sheriff’s] sale, the proceeds of that sale are a satisfaction pro tanto of the execution producing that fund____” J.R. Clausen & Son, 7 Pa.Super. at 222; Campbell, Bredin & Co.’s Appeal; Beachy v. Miller, 103 Pa.Super. 1, 157 A. 336 (1931); In re Estate of Wetzler, 3 Pa.Super. 435 (1897). That is, the judgment which occasioned the execution procedures is discharged to the extent that the proceeds of the sheriff’s sale are applied to pay the judgment. Campbell, Bredin & Co.’s Appeal; Beachy; J.R. Clausen & Son; In re Estate of Wetzler; 14 Standard Pennsylvania Practice 2d § 78:27.

At the sheriff’s sale in the case sub judice, wife purchased the levied upon Bronco II and camper for $89.34 representing the execution costs. Pa.R.C.P. No. 3133. But in buying at the sheriff’s sale, wife obtained only that interest in the Bronco II and camper which husband had. Taylor; Wells; Pa.R.C.P. No. 3252. Accordingly, wife acquired the Bronco II and camper subject to the secured interests of the credit company which had lent husband the purchase money for those items. Bloom v. Hilty, 427 Pa. 463, 234 A.2d 860 (1967); Lantzy v. Velest Coal Co., 45 D. & C.2d 502 (1968). Because the secured interests of the credit company had priority over wife’s execution lien based on the judgment for support arrearages, Bloom; Lantzy, the credit company took possession of the Bronco II and camper in payment of the outstanding balance of its purchase money loans to husband. Hence, the sheriff’s sale did not produce any proceeds which could be applied to payment of wife’s judgment against husband, and the trial court properly refused to hold that the sheriff’s sale had either partially or fully discharged wife’s judgment for support arrearages. See Campbell, Bredin & Co.’s Appeal.

Order affirmed.

      . For example, under Pa.R.C.P. No. 3120, a sheriff may abandon a levy if the execution creditor fails to pay "promptly upon demand ... the sheriffs proper fees and costs, or ... sale of the property levied upon is not held within six (6) months after levy, unless the proceedings are stayed or the time for sale is extended by the court."


author: CERCONE, Judge:

text:
    514 A.2d 133
    COMMONWEALTH of Pennsylvania v. Randy Scott CARBAUGH, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Submitted May 12, 1986.
    Filed Aug. 11, 1986.

      Douglas W. Herman, Assistant Public Defender, Chambersburg, for appellant.
    John R. Walker, District Attorney, Chambersburg, for Com., appellee.
    Before BECK, CERCONE and ROBERTS, JJ.
   CERCONE, Judge:

Appellant, Randy Scott Carbaugh, was convicted by a jury of third degree murder, robbery, theft and two counts of forgery arising out of the beating death of- a woman he had met in a Chambersburg bar. He met her on the evening of April 16, 1984, and early in the morning of April 17, 1984, he confessed to his two sisters that he had just killed a female. Both sisters observed blood on him. He kept the victim’s car and took some of her checks which he cashed at Letterkenny Federal Credit Union on April 17 and 19, 1984. On April 20, 1984, appellant, while driving the victim’s car, struck another car. He fled the scene of the accident, but the other driver knew him and reported his identity to police.

Appellant was arrested on April 20, 1984, at 5:45 p.m. and was administered Miranda warnings on the way to police headquarters. It was the manner of the interrogation that ensued which appellant successfully challenges in this appeal on the issue which we now address:

Whether the failure of police to cease questioning appellant upon his numerous requests to remain silent rendered his subsequent confessions inadmissible as obtained in violation of Fifth Amendment rights?

The Supreme Court of Pennsylvania has explained our role as reviewing court in the context of suppression issues.

When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence obtained was in violation of the defendant’s constitutional rights. Pa.R.Crim.P.
323(i), and must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P.
323(h). On review, this court must “determine whether the record supports the factual findings of the court below and the legitimacy of the inferences drawn from those findings.” In doing so, we will consider ‘only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ (citations omitted.) Commonwealth v. Davis, 491 Pa. 363, 368, 421 A.2d 179, 181 (1980).

At the hearing on the pre-trial motion to suppress, Detective Haldeman testified as to the chain of events which occurred during his interrogation of appellant. He testified that he read a Miranda warning and consent form to appellant at 6:15 p.m. on April 20,1984, upon their arrival at police headquarters. Appellant signed it, indicating that he understood his rights. The first one-half hour interrogation session was taped and transcribed and it was admitted into evidence as Commonwealth’s Exhibit 5.

At the suppression hearing, the assistant district attorney asked the detective whether appellant at any time during the questioning had requested the services of an attorney, to which he answered, no. However, on cross-examination by appellant’s attorney, reference was made by the detective to the numerous instances in which appellant requested the detective to cease his questioning. Commonwealth’s Exhibit 5, the transcript of the interrogation reveals that after the third time that appellant stated his desire to stop being questioned, Detective Haldeman said:

You’ve got the right to answering [sic]. I’ve got the right to talk as long as I want to.

He continued the interrogation. After appellant’s fourth request, another officer stated:

Trooper Wible: ... [W]e’re going to arrest Esther, we [sic] going to arrest Nancy, and we’re going to arrest Karen. We [sic] charge them all with murder the same as Randy.
Detective Haldeman: Do you want that to happen Randy?
Randy: No, I’m not even going to answer any more questions.
Detective Haldeman: You mean to tell me that you are going to sit there, after those people helped you, and you’re going to let us put them in jail for conspiracy to commit murder? Is that what you’re saying, Randy? Now, think about it young man, you’re talking your mother, and your sisters, the three people you went to for help, who helped you, didn’t question you, and now you’re going to f_ and hang them, is that what you are saying, Randy?
Randy: I just don’t want to answer any more questions right now.

Two more requests to stop the interrogation were made by appellant before the officers stopped in order that appellant could be searched. Under these circumstances, appellant made no admission as to the murder at this first thirty minute session, but he did admit to having the victim’s car and to cashing her checks. He was then strip searched and the questioning resumed with Detective Haldeman’s emphasis on the fact that the police had enough evidence to charge him with the homicide. Near the end of this second thirty minute period, appellant admitted to the murder, but expressed a desire to see his mother. After speaking with his mother, appellant, again admitted to the police that he beat the victim to death. He gave another statement to this effect in the early morning hours of the next- day.

The trial court, in its opinion, correctly concluded that police in this case subjected appellant to improper questioning in violation of Miranda v. Arizona, 384 U.S. 436, 473-474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966):

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.

Then, in Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975), the question of whether, and under what circumstances, a resumption of questioning would be permissible, was addressed:

Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissiblity of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether the “right to cut off questioning” was “scrupulously honored.” (footnote omitted.)

Thus, in this case it cannot be said that appellant’s “right to cut off questioning” was “scrupulously honored,” and the statement obtained should not have been admitted at trial. Commonwealth v. Reiland, 241 Pa.Superior Ct. 109, 359 A.2d 811 (1976).

The trial court justified its admission, despite the violation of appellant’s “right to become silent,” on two grounds. The court found that the admitted statement was harmless error, citing Commonwealth v. Story, 476 Pa. 391, 411, 383 A.2d 155, 165 (1978): “an error, which, viewed by itself, is not minimal, may nonetheless be harmless if properly admitted evidence is substantially similar to the erroneously admitted evidence.” The court noted that appellant’s sisters testified at trial that appellant said he had just killed a female and that they observed blood on him and also noted his distraught demeanor on April 17, 1984. Moreover, the court bolstered its harmless error rationale by referring to appellant’s written statement which was made on April 21, 1984, and the voluntary oral statement which he made to the police after consulting with his mother on April 20, 1984. The court found that this evidence was substantially similar to appellant’s initial incriminating statements, but that it was made in much greater detail. According to the trial court, the statement obtained in violation of appellant’s rights was “merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury.” Commonwealth v. Knight, 469 Pa. 57, 63, 364 A.2d 902, 905 (1976).

However, before a conclusion of harmless error can be made in this case, we must examine whether the subsequent statements were properly admitted. In such a situation, the burden is on the Commonwealth to demonstrate that subsequent statements were not products of the exploitation of the original illegality and were obtained under circumstances sufficiently distinguishable to purge them of their original taint. Commonwealth v. Chacko, 500 Pa. 571, 580, 459 A.2d 311, 316 (1983).

In two cases in which it was concluded that subsequent statements were shown to be sufficiently purged of an initial taint, Chacko, supra, and Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the initial illegality was the failure of interrogating police officers to administer Miranda warnings to a suspect in custody. See also Commonwealth v. Craig, 345 Pa.Superior Ct. 542, 498 A.2d 957 (1985). In both cases, the courts referred to this violation as one “technical” in nature, in that, although unwarned, there was no evidence in either case that the subsequent inculpatory statement which resulted was involuntary. Then, in both cases, once warnings were administered, the suspects chose to speak out again voluntarily in conformity with their original inadmissible statements.

However, this is not the same case, in that the Miranda violations here were much more serious and evidence a greater degree of coercion than do the Chacho and Elstad cases. The complete and unrelenting disregard by police authorities of appellant’s invocation of his right to remain silent resulted in an exchange between them that was sought to be prevented by the Miranda decision.

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Miranda v. Arizona, supra, 384 U.S. at 473-474, 86 S.Ct. at 1627.

Thus, appellant, who knew Detective Haldeman and who was known by him, was subjected to a barrage of questions by the detective and the trooper which can only be characterized as a callous disregard of appellant’s rights and as an effort “to wear down his resistance and make him change his mind.” Michigan v. Mosley, supra. This is evident from the detective’s misrepresentation to appellant during this questioning that appellant had the right to stop answering, but that the detective had the right to continue questioning. Moreover, the officers’ talk of arresting appellant’s mother and sisters for conspiracy to commit murder if appellant did not confess to the murder was an empty and unenforceable threat designed only to overbear appellant’s will. The result of this harassment was the sought after confession accompanied by appellant’s request to see his mother. Minutes after his initial admission, appellant and his mother summoned police whereupon appellant made a more complete statement inculpating himself as having killed the victim by beating her. Appellant then took Detective Haldeman to the burial site, where the body was recovered.

The trial court regarded appellant’s meeting with his mother as a circumstance which evidenced a voluntary waiver of his rights, citing Commonwealth v. Brown, 328 Pa.Superior Ct. 207, 211, 476 A.2d 965, 967 (1984):

An accused who has invoked his rights may change his mind and choose to waive his rights so long as it is he who initiates further communications, and so long as his waiver is voluntary and intelligent.

While that is the test for a determination of whether an accused who has invoked his rights has changed his mind and chosen to waive them, we do not agree that the facts herein support a conclusion that appellant was exhibiting a voluntary and intelligent waiver once he was coerced to admit his guilt initially.

In Orgeon v. Elstad, supra, the United States Supreme Court stated the relevant inquiry where a first unwarned, yet voluntary, statement has been made as to whether in fact the second statement was also voluntarily made.

As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. Id. 470 U.S. at 318, 105 S.Ct. at 1298.

Our examination of ,the entire course of police conduct which resulted in the statements at issue here, persuades us that appellant was, in effect, disabled from waiving his rights and confessing voluntarily. We do not find circumstances rendering the subsequent statements purged of the initial taint. Because the initial statement was coercively obtained as a result of illegal police conduct, and because a confession is the most damning of all evidence, we are constrained to reverse the judgment in this case and to remand for a new trial.

Judgment of sentence reversed; case remanded for a new trial. Jurisdiction is relinquished.

      . The Commonwealth has not submitted a timely brief to this court, a practice which we not only regret, but which we strongly disapprove.

      . Commonwealth v. Bullard, 465 Pa. 341, 349-350, 350 A.2d 797, 801 (1976) (New trial granted where police disregarded appellant’s initial exercise of rights).


author: TAMILIA, Judge:

text:
    514 A.2d 137
    Edwin MOORE, D/B/A Marabella’s, Steve’s and John’s, Inc. D/B/A Continental Burgers and Picadeli Circus, Inc., Individually and On Behalf Of a Class of Plaintiffs Similarly Situated, Appellants, v. PAVEX, INC., Herre Bros., Inc. and Consolidated Rail Corporation. COUNTY OF DAUPHIN; William Nichols and George Nichols T/A the Colonnade Restaurant; Samuel Graci T/A Construction Collaborative; Robert Saligman T/A Cynwyd Investment; Ammoun C. Schneider and Daniel J. Richards a Partnership, T/A The Bread Basket, Appellants, v. PAVEX, INC., Herre Bros., Inc. and Consolidated Rail Corporation.
    Superior Court of Pennsylvania.
    Argued May 20, 1986.
    Filed Aug. 11, 1986.

      Laurence S. Berman, Philadelphia, for appellants.

      Kenneth I. Levin, Philadelphia, for Consolidated Rail, appellee.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from an Order entered by the Dauphin County Court of Common Pleas sustaining defendant/appellees’ preliminary objections to plaintiff/appellants’ consolidated amended class action complaint, thereby dismissing appellants’ action.

Appellants’ complaint is based on the September 11, 1984 rupture of a 42-inch water line, serving the City of Harrisburg and the Borough of Penbrook, by construction workers using a jackhammer. Appellants seek damages because of losses they sustained as a result of the interruption of water service. Appellants are Dauphin County and individuals and corporations doing business in the City of Harrisburg. Appellees, Pavex, Inc. and Herre Bros., Inc. are contractors that were engaged in excavation, drilling etc., and appellee Conrail is the owner of the land where the complained of activities occurred. Appellants alleged they suffered a variety of harms from appellees’ negligence ranging from “individual and familial suffering” and “loss of wages” to “sums expended for bottled water or other replacement water” and “operating losses”. (Appellants’ Consolidated Amended Class Action Complaint, pp. 12, 13)

The lower court sustained appellees’ preliminary objections on the basis that appellants failed to state a cause of action upon which relief could be granted.

Appellants allege on appeal that under the circumstances of this case, they are entitled to recover their respective economic losses in tort because allegations of tortious activities which produce economic loss and a serious risk of a health and safety hazard state a cause of action for recovery of economic harm in tort. Appellants further contend that the “bright line rule” stated in Robins Dry Dock and Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927) is inapplicable where tortious conduct of defendants causes economic harm and a serious risk of a health and safety hazard, and also where the economic harms were foreseeable, not insured and not protected against by contractual provision.

Appellant relied heavily on Industrial Uniform Rental Co., Inc. v. International Harvester Co., 317 Pa.Super. 65, 463 A.2d 1085 (1983) on the theory that a party should be able to recover in tort, if unable to do so in assumpsit, when he alleges conditions “potentially dangerous to persons or property,” (appellants’ brief at 13) even when physical injury has not yet occurred. Lastly, appellants aver the law of private nuisance supports their recovery for economic harm.

There does not appear to be any Pennsylvania authority which clearly addresses these contentions. Nevertheless, the lower court held there could be no recovery for economic loss by the plaintiffs in this case who did not suffer physical harm to property in which they had a proprietary interest.

Appellants and appellees have also filed supplemental briefs in order to discuss the applicability of these recent decisions; Aikens v. Baltimore and Ohio Railroad Co., 348 Pa.Super. 17, 501 A.2d 277 (1985); Johnson v. General Motors Corp., 349 Pa.Super. 147, 502 A.2d 1317 (1986), No. 111 Eastern Dist. Allocatur Docket to the instant appeal.

In their supplemental brief, appellants maintain there is a significant difference between Aikens and the present case. In Aikens, a freight train derailed, damaging a manufacturer’s plant. The manufacturer curtailed production, and accordingly, its hourly workers lost wages they otherwise would have earned. The employees then sued the railroad to recover their lost wages. The court denied recovery stating that no cause of action exists for negligence which results in economic loss. Aikens, 348 Pa. at 20, 501 A.2d at 279. Appellants, herein, argue that in Aikens the parties alleging harm were employees of the firm seeking recovery for economic loss and, therefore, not directly affected, but in the instant action, appellants argue the loss is suffered directly by the parties in the class. In further support of their position, appellants cite Commonwealth, v. General Public Utilities, 710 F.2d 117, (3d Cir.1983), wherein plaintiffs’ alleged actual physical intrusion of a noxious substance upon their properties, namely radioactive material emitted during a nuclear accident. The court stated that:

Although plaintiffs apparently do not assert that any “bodily injury, sickness, disease or death” was caused, they clearly claim temporary loss of use of property and “damage to property” as a result of the intrusion of radioactive materials upon plaintiffs’ properties through the ambient air, irrespective of any causally-related permanent physical harm to property. The Complaints are adequate to defeat a motion for summary judgment or a motion to dismiss and to permit such a claim for damages to proceed, [emphasis added, footnote omitted]

710 F.2d at 123.

Clearly, the reasoning and rationale of Aikens applies to the case sub judice and General Public Utilities, supra, is substantially distinguishable from the case before us.

The facts in this case are squarely on all fours with Aikens, supra, and Robins, supra, in that the economic harm was not direct and foreseeable. If any of the class had suffered direct damage to property as a consequence of the rupture of the watermain (such as flooding, destruction of property or personal injury), those unquestionably would be actionable. Such was not the case; “individual and familial suffering”, “loss of wages”, “replacement or bottled water” and operating losses are no more direct foreseeable damages, economic losses or serious risks of health and safety than are lost wages in Aikens and in Robins.

Appellant seeks to extend the common law tort liability by including within the law of product liability to construction work involving the actions of a single employee in operating a jackhammer. The underlying theory of product liability has no application to this relationship. The liability of a manufacturer, for a product over which it has exclusive control in design and manufacture and which is inherently dangerous if not properly designed and constructed, requires special considerations that are inapplicable to routine construction and manufacturing endeavors. The former is similar to placing a time bomb into circulation where effects can be felt at any time by totally unsuspecting persons, which can only be controlled by assessing strict liability on the agency best able to prevent the danger, the manufacturers.

In general construction, manufacturing, railroading or any of the myriad of other production endeavors in our society, beyond the reasonable care that the employer might exert, there are so many variables as to individuals, work conditions, or collateral involvements, as to make foreseeability impossible. Neither do they permit the exercise of the degree of control or prevention necessary to reduce the possibility that any given action will result in injury to persons or property. To extend liability beyond the first person in privity in the product liability category is reasonable and justifiable in a highly technical society; as to the second category, expectancies of liability cannot flow beyond the persons or property injured, for economic losses only, without creating interminable chains of remote consequences and imponderable issues of liability and damages. Appellants’ reliance on Industrial Uniforms, supra, is misplaced. The gradual deterioration of a motor vehicle, with debatable issues as to the cause being gradual deterioration through use, to be governed by warranties under the UCC, or design defects under tort and product liability law, can not be rationalized or equated with the destruction of a watermain through an accidental severance from an external agent, a manually operated jackhammer. The theories proposed by the majority (Johnson, J.) and the dissent (Hester, J.) are inapplicable here. Neither is appellant saved by reference to General Public Utilities, supra. Chernobyl has for ever put to rest any question that radiation or fallout from a meltdown of a nuclear plant does not directly cause injury to persons and property with which it comes into contact.

The injury, while not always immediately ascertainable, is direct and predictable, and for persons not to move immediately from a fallout zone to avoid possible incredible consequenses, is folly and unsupportable. Any economic loss resulting from such a scenario is directly attributable to the meltdown. The meltdown is predictable and hopefully preventable and entirely within the control of superspecialists to whom we have entrusted our environment and our lives. This is no mere rupture of a waterpipe. It is clearly distinguishable.

We, therefore, conclude the lower court was correct in sustaining defendant/appellee’s preliminary objection to the consolidated class action complaint, and we do not believe there is merit to appellants’ request that we extend the liability to a remote second tier of causation by engrafting either strict liability standards or the law of private nuisance to common law tort liability.

Order affirmed.