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Harrigan v. Rolle

United States District Court, D. Maryland

December 12, 2014

SCOTT L. ROLLE, et al. Defendants.


ELLEN L. HOLLANDER, District Judge.

In this case of alleged criminal legal malpractice, the plaintiff here, Michael Peter Harrigan, was a criminal defendant in a homicide case, where he was represented by defendants Scott Rolle, Esquire; James Reed, Esquire; the Law Office of Scott Rolle, LLC; and James K. Reed (ECF 1). In addition to alleging criminal legal malpractice, plaintiff has sued defendants for misrepresentation and breach of contract.[1] The civil suit is rooted in a case that was tried in the Court of Common Pleas, Thirty-Ninth Judicial District of Pennsylvania, Franklin County Branch, captioned Commonwealth v. Michael Peter Harrigan, CP-28-CR-0001170-2010, which culminated in Mr. Harrigan's conviction for voluntary manslaughter. As a result, he was sentenced to five to ten years' incarceration.

Defendants have filed a Motion to Dismiss ("Motion, " ECF 17), supported by exhibits. Plaintiff opposes the Motion ("Opposition, " ECF 20), and defendants have replied ("Reply, " ECF 21). No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons stated below, the Motion will be granted in part and denied in part.

Factual Background[2]

Plaintiff alleges that, on the evening of May 26, 2010, at approximately 10:30 p.m., he contacted his neighbor, Steven Wetzel, in Blue Ridge Summit, Washington Township, Pennsylvania, to complain about the noise and "drunken ruckus" emanating from Mr. Wetzel's adjacent home, which was "disturbing the peace." ECF 1, ¶ 8. According to plaintiff, an argument ensued between plaintiff, Mr. Wetzel, and Mr. Wetzel's guests. Thereafter, Mr. Wetzel entered onto plaintiff's property, where plaintiff resided with his wife and infant daughter. Id. ¶ 9. At the time, Mr. Wetzel was "highly intoxicated" and threatened to "kill Plaintiff and harm his wife and baby daughter." Id. Harrigan further alleges that, based on Mr. Wetzel's "violent past and reputation in the community for violence, " along with Mr. Wetzel's known possession of firearms, Harrigan was "in fear for his life and the lives of his wife and daughter...." Id. ¶ 10. As a result, Mr. Harrigan "legally armed himself, remained on his own property and guarded the approach to his house." Id. ¶ 11.

At about 1:00 a.m. on May 27, 2010, Mr. Wetzel again entered plaintiff's property and threatened plaintiff. As Harrigan's wife was contacting the police, plaintiff attempted to "convince the belligerent and highly intoxicated Mr. Wetzel to... calm down and leave...." Id. ¶ 12. However, Mr. Wetzel "came at Mr. Harrigan, " id. ¶ 13, and, "with the apprehension that Mr. Wetzel was armed and intended to do [plaintiff] grievous bodily harm, Mr. Harrigan instinctively discharged his gun, killing Mr. Wetzel involuntarily and in self defense." Id. ¶ 14.

Harrigan was arrested and charged with "criminal homicide" under Pennsylvania law, 18 Pa. C.S.A. § 2501(b). The crime of "criminal homicide" encompasses murder, voluntary manslaughter, and involuntary manslaughter. Id. ¶ 15. As a result, plaintiff "authorized" his father, William Harrigan ("William")[3] to act as his "agent, " and on plaintiff's behalf. Id. ¶¶ 16, 17. William "called" Rolle and asked him to represent plaintiff in the criminal case. Id. ¶ 18. Because Mr. Rolle is not licensed in Pennsylvania, he advised that he would seek the assistance of an attorney licensed in Pennsylvania. Id. ¶ 18. He then contacted James Reed, who is licensed in Maryland and Pennsylvania. Id. ¶ ¶ 6, 18, 19.

Rolle told William that he and Reed "would charge a flat, fixed fee of $50, 000 for the entire representation, which they would share equally." Id. ¶ 19. There was no discussion with respect to costs, post-trial proceedings, or an appeal. Id. Pursuant to the agreement reached with Rolle and Reed, William gave Rolle a check for $50, 000 on June 2, 2010, "to be shared with Defendant Reed." Id. ¶ 20.

Although Reed had previously represented the decedent in a separate criminal matter, he told plaintiff "that he did not consider his prior representation of Wetzel to create a conflict in his representation of Plaintiff." Id. ¶ 22. Moreover, although Reed was representing Wetzel's nephew, Billy Flood, another participant in the "ruckus, " Reed "told William Harrigan, that the concurrent representation of Plaintiff and Mr. Wetzel's family member was not a conflict." Id. ¶ 24. Plaintiff did not learn of Reed's dual representation until after his own trial. Id.

On or about August 21, 2010, William received a document in the mail from Rolle, entitled "Criminal Retainer Agreement." It recited that the flat, fixed fee of $50, 000 was to cover only the criminal case from arraignment to disposition, exclusive of appeals, post judgment relief, or post-trial motions. Id. ¶ 25. William did not sign the document because, in his view, it was not consistent with the original agreement. Id.

Plaintiff's criminal homicide trial commenced on February 7, 2011. Plaintiff alleges that the "obvious, principal defense to the charge of criminal homicide was that Mr. Wetzel had threatened [plaintiff] and his family... that Mr. Wetzel was the aggressor in the incident, and that the shooting was in self-defense." Id., ¶ 30. He maintains that the defense, if successful, would have resulted in acquittal. Further, plaintiff posits that, even if the jury believed the shooting was not completely justified, the defense, at most, supported a conviction of involuntary manslaughter, which is a misdemeanor in Pennsylvania. Id.

Plaintiff alleges that on January 18, 2011, defense counsel filed a motion in limine, seeking to offer evidence as to Mr. Wetzel's criminal history and reputation as to violence, as well as Harrigan's knowledge of the decedent's record; the trial court ruled the evidence was admissible. Id. ¶ ¶ 33, 100. Yet, according to plaintiff, defense counsel failed to offer evidence at trial regarding plaintiff's knowledge of Mr. Wetzel's criminal history and reputation and propensity for violence, and "how that knowledge influenced [plaintiff's] state of mind and actions at the time of the incident." Id. ¶ 35. Moreover, defense counsel allegedly misrepresented the court's ruling to plaintiff, "falsely telling him that the court had refused to allow the evidence, and warning him that if he attempted to testify to his knowledge of Mr. Wetzel's criminal record or [the decedent's] propensity and reputation for violence, the court could declare a mistrial." Id. ¶ 36.

In addition, at trial defense counsel failed to introduce "the abundant character evidence" about plaintiff, id. ¶ 43, even though "a multitude of witnesses were available to testify [about] plaintiff's reputation for honesty and for being a peaceful law-abiding citizen...." Id. ¶ 41. Defense counsel called just one character witness, but "failed to elicit any testimony... with regard to plaintiff's reputation for the relevant traits...." Id. ¶ 42. Although evidence of plaintiff's "honesty and good reputation for being a peaceful, law-abiding citizen" is admissible under Pennsylvania Rule of Evidence 404(a)(1), id. ¶ 38, ¶ 39; see also ¶¶ 40-43, plaintiff complains that defense counsel "exacerbated the devastating effect of their conduct by failing to request" a jury instruction as to character evidence under Pennsylvania law. Id. ¶ 44.

Further, Harrigan complains that defense counsel failed to request a jury instruction on the lesser included offense of involuntary manslaughter, as plaintiff had requested. Id. ¶¶ 46, 47, 50. In this regard, plaintiff points out that he testified in his own defense and recounted that he did not aim the gun at Mr. Wetzel, and "shot him instinctively when Mr. Wetzel... came at him." Id. ¶ 48. He also testified that "the act of shooting Mr. Wetzel was involuntary...." Id.

On February 10, 2011, after presentation of all evidence, the jury convicted plaintiff of voluntary manslaughter. Id. ¶ 52. On April 7, 2011, the court imposed a mandatory minimum sentence of 5 to 10 years in prison. Id.

Plaintiff alleges that after conviction Reed demanded, and William paid, an additional $15, 000 for post-trial work to overturn the conviction. Id. ¶ 25. On March 10, 2011, Rolle wrote to William, claiming that, based on the amount of time expended for the trial, both he and Reed were each entitled to an additional $25, 000. Id. ¶ 28. Because William was concerned that Rolle and Reed "would not do their best for his son on appeal, " unless they were paid more money, he gave Reed an additional $46, 000 on April 15, 2011, and he gave Rolle an additional $21, 000 on May 9, 2011. Therefore, plaintiff argues that defendants Rolle and Reed were paid a total of $115, 910 for work they had agreed to perform for a flat fee of $50, 000. Id. ¶ 29.

Reed filed a post-sentence motion on April 18, 2011, asking the court to set aside the verdict and order a new trial, which he amended on June 10, 2011. Id. ¶ 54. Reed conceded: "It was error on the part of the Commonwealth as well as the Defense not to insist on this charge [of involuntary manslaughter] given the evidence at trial." Id. ¶ 54. The motion was denied on July 25, 2011. Id. ¶ 55. Moreover, according to plaintiff, Reed conceded to William that evidence of Wetzel's criminal history and reputation for violence should have been offered at the trial. But, he claimed it was Rolle's responsibility, and stated that Rolle was not prepared for trial. Id. ¶ 68.

On August 24, 2011, Reed filed a notice of appeal to the Superior Court of Pennsylvania from the trial court's denial of his post-trial motion. Id. ¶ 57. The Pennsylvania appellate court issued its opinion on April 3, 2012, id. ¶ 62, in which it ruled that appellant failed to preserve his challenges for review. Id. ¶ 61. Specifically, the Pennsylvania court concluded that the issues concerning the failure of the trial court to instruct on involuntary manslaughter, and the failure of the trial court to instruct the jury fully on justification and the duty to retreat, were waived because no request or objection was made. Id. ¶¶ 58, 59, 61.

Prior to the decision of the Pennsylvania appellate court, defendants had repeatedly told plaintiff that, in chambers, the trial judge had refused to propound a jury instruction on involuntary manslaughter. Id. ¶ 63. Moreover, defendants did not raise on appeal the trial court's alleged failure to permit evidence of Mr. Wetzel's criminal history and character evidence as to plaintiff. Id. ¶ 64. So, plaintiff "still did not know that defendants' repeated representations that they had also asked the trial court to admit [such] evidence... were also false...." Id.

Following plaintiff's unsuccessful appeal of his conviction, attorneys Rolle and Reed were discharged. Plaintiff retained David J. Foster, Esquire, a Pennsylvania lawyer, to pursue a new trial under the Pennsylvania Post Conviction Relief Act, Pa. C.S.A. § 9541 et. seq. Id. ¶ 65. However, defendants refused to produce their files to Foster until such time as they were paid for costs of reproduction. Id. ¶¶ 66, 67. Still, Reed took three months to produce his file. Id. ¶ 69.

Upon review of Reed's file, plaintiff discovered the falsity of defense counsel's repeated representations that the trial judge would not permit evidence of Mr. Wetzel's criminal record and his reputation for violence; the court had, in fact, ruled to the contrary. Id. ¶ 70.

Mr. Foster filed a petition for post-conviction relief on October 5, 2012. Id. ¶ 71. In the post-conviction petition, plaintiff alleged that defendants Rolle and Reed provided ineffective assistance of counsel, causing him to be convicted of a crime he did not commit. The Commonwealth responded on November 13, 2012. Id. ¶ 72. The Pennsylvania court held evidentiary hearings on June 20, 2013, August 8, 2013, and September 13, 2013. Id. ¶¶ 73, 74, 75. Plaintiff, Reed, and Rolle all testified. According to plaintiff, Reed explained that defense counsel did not introduce evidence of Mr. Wetzel's criminal history, reputation for violence, or testimony concerning plaintiff's knowledge of Wetzel's reputation for violence, "for fear of tearing down the victim unnecessarily.'" Id. ¶ 75. Moreover, he explained that defense counsel did not request a jury instruction on involuntary manslaughter because the evidence did not support such an instruction. Id.

Counsel for both sides submitted post-hearing briefs in December 2013, after receipt of the trial transcripts. ECF 17-2 at 3. In January 2014, while the post-conviction matter was pending in the Pennsylvania trial court, plaintiff filed this suit. ECF 1.

The Complaint contains eight counts, as follows. Count One is titled: "Criminal Malpractice of Both Defendants: Negligence Resulting in Conviction Where Plaintiff Innocent of All Charges." Count Two is titled: "Criminal Malpractice of Both Defendants: Negligence Resulting in Conviction Where Plaintiff Innocent of Voluntary Manslaughter." Count Three is titled: "Criminal Malpractice of Both Defendants Reckless and Wanton Disregard of Plaintiff's Interest Resulting in Conviction Where Plaintiff Innocent of All Charges." Count Four is titled: "Criminal Malpractice of Both Defendants: Reckless and Wanton Disregard of Plaintiff's Interests Resulting in Conviction Where Plaintiff Innocent of Voluntary Manslaughter." Count Five is titled: "Intentional Misrepresentation: Admissibility of Character Evidence"; Count ...

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