JUSTICE NEWMAN,
dissenting.
I write separately to note my strong dissent to the per curiam Order entered by the Court in the above-referenced matter. As further set forth in this Statement, I firmly believe that this action is ill-advised and will lead to the inefficient administration of justice. In particular, I write to express my disagreement with several points raised by my colleague Mr. Justice Castille in his Statement in Support of Denial.
The Court has rejected the Petition of Andrea Konow, Esq. (Petitioner), to stay the March 23, 2004 Order of the Court of Common Pleas of Philadelphia County (trial court), which held Petitioner in contempt of court. The trial court issued the contempt citation when Petitioner refused to continue with her representation of Malik El Shabazz (El Shabazz), after El Shabazz sucker punched her co-counsel Fred Goodman, Esq. (Attorney Goodman). Because I believe it imprudent to require Petitioner to continue representing El Shabazz in this matter, I must dissent from the majority’s decision.
The discrete issue before this Court is simply whether Petitioner, who has expressed personal fear about continuing in this case, should be entitled to remove herself from representing El Shabazz, not the ancillary effects of rendering El Shabazz unrepresented at this stage of trial. In order to establish entitlement to a stay, the Appellant must establish all of the following criteria set forth in Reading Anthracite Company v. Rich, 525 Pa. 118, 577 A.2d 881 (1990): (1) strong likelihood of success on the merits; (2) the denial of a stay will cause irreparable harm; (3) the stay will not substantially harm other interested parties; and (4) the stay will not substantially harm the public interest. See also Pennsylvania P.U.C. v. Process Gas Consumers Group, 502 Pa. 545, 467 A.2d 805 (1983).
Attorney Konow asserts that she will likely succeed on appeal of the contempt Order. She claims that she cannot provide competent representation consistent with Rule 1.1 of the Rules of Professional Conduct, which provides, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation.” In support of her position, she cites a case from Ohio, State v. Williams, 99 Ohio St.3d 493, 794 N.E.2d 27 (2003). In Williams, the defendant in a capital case punched one of his lawyers, Spiros Cocoves, Esq. (Attorney Cocoves), after the jury returned a guilty verdict. Attorney Cocoves indicated that he was willing to continue as Williams’ counsel, and the court adjourned for the weekend. The following Monday, Attorney Cocoves and co-counsel both filed motions to withdraw. Attorney Cocoves indicated that there had been a breakdown in the attorney-client relationship that jeopardized the defendant’s right to effective assistance of counsel. Attorney Cocoves indicated that he was afraid of Williams and that his fear would be communicated to the jury. The trial court denied counsel’s motions to withdraw. On appeal, the Supreme Court of Ohio determined that the trial court abused its discretion. It emphasized that in the context of the penalty phase of a capital case, it is particularly important for counsel not to reveal to the jury, through his or her body language, any fear of the defendant.
The Commonwealth relies on this Court’s decision in Commonwealth v. Lester, 554 Pa. 644, 722 A.2d 997 (1999). In Lester, the trial of a capital defendant was originally scheduled to begin on July 29, 1991. Lester requested the appointment of new counsel because he had filed a civil suit against his court appointed lawyer. When the court indicated that the trial would proceed, the defendant became disruptive. The court continued the case for two days to allow the defendant and counsel additional time to confer. On July 31, 1991, the court agreed to the appointment of new counsel because it was clear that the defendant intended to disrupt the trial and the court feared that Lester would harm his counsel. When trial began in November 1999, Lester stood up and informed the jury that he had filed a civil suit against his new lawyer. After the jury panel was removed from the courtroom, Lester punched his counsel. The following day, counsel sought permission to withdraw, which the trial court denied. The trial court based its decision, in part, on the fact that it had previously postponed Lester’s trial because it feared that Lester would physically harm his original counsel. In light of the recurrent nature of the defendant’s disruptive behavior, this Court held that the trial court did not abuse its discretion in denying the request of counsel to withdraw from representation. However, Lester is clearly distinguishable from the instant matter because (1) there is no indication in Lester that counsel felt that his personal safety was in jeopardy; (2) the assault occurred outside the presence of the jury; and (3) the defendant in Lester had repeatedly engaged in obstreperous behavior, supporting the trial judge’s view that such behavior would likely recur.
Requiring Petitioner to return to the courtroom and continue with the representation of El Shabazz will cause greater harm than allowing the stay to remain in place. Assuming, arguendo, that El Shabazz is convicted of the crimes charged, he will ultimately raise motions contending that Petitioner rendered ineffective assistance of counsel; how those arguments would not be meritorious strains credulity. In light of Petitioner’s assertion that she is not prepared to represent El Shabazz at the guilt stage, requiring her to step into the shoes of Attorney Goodman is an open invitation to raise a good faith claim of ineffectiveness.
My overarching concern in this matter is the efficient administration of justice. I recognize that allowing Petitioner to withdraw from this case would inevitably lead to a mistrial. Although appointing new counsel at this stage would cause delay, it need not necessarily cause inordinate delay. I fear that at some point in the future, long and unnecessary delay will occur, if the PCRA court, this Court, or a reviewing federal court deems a new trial appropriate based on allegations of ineffective assistance of counsel by Petitioner.
As to irreparable harm to Petitioner, it is beyond cavil that losing one’s freedom for any period of time is indeed irrepara ble. Any harm to the Commonwealth would be minimal as it has made no averments that any evidence or testimony will be lost if trial does not immediately continue. The public interest will be better served by ensuring that the defendant receives adequate representation than by requiring the case to go forward under these circumstances. Accordingly, I would have allowed the stay to remain in place.
By allowing Attorney Goodman to withdraw from the case, the trial court recognized that when an attorney who has been assaulted by a client believes that he cannot continue to represent that client effectively, terminating such representation is appropriate. Considering that Petitioner saw the attack on co-counsel and expressed that she was traumatized by the incident, the decision of the trial court to excuse one member of the defense team but not the other is potentially inconsistent. This matter should be subject to thorough review by the Superior Court, and pending such review, Petitioner should not be compelled to return to trial or face incarceration.
In particular, I disagree with certain points raised by Mr. Justice Castille in his Statement in Support of Denial. As an initial matter, I do not believe that under these circumstances, Petitioner’s failure to seek a stay in the trial court prevented meaningful review. In light of time restraints and her incarceration, she took the steps most effectively designed to achieve her release. Her attempt to seek relief from the Superior Court was eminently reasonable, and I refuse to assume that this was part of a strategy to euchre the judicial process. Moreover, I am disheartened by the general tenor of the Statement in Support of Denial, which unjustifiably accuses Petitioner and the Defender Association of using the unprovoked assault by El Shabazz as a litigation tactic.
Although the Statement in Support of Denial contends that Petitioner holds “the key to her release,” she should never have been put behind the locked door in the first place.
. The Commonwealth also cites to Rule of Professional Conduct 1.16(c), which provides, [w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” However, a trial court’s discretion to require an attorney to continue representation of a client is not unfettered. As such, it behooved the trial court to consider Rule 1.1, as discussed above, as well as Rule 1.7(b) which provides that [a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests ...” (emphasis added).
. He will not even be able to present these claims for years, having to wait to file a Petition filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541, et seq. See Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (Pa.2002) (”[w]e now hold that, as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review”).