Com. v. Bush, J.

J-A11033-17

2017 PA Super 232

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JESSE RAY BUSH,

Appellant No. 1765 MDA 2016

Appeal from the Judgment of Sentence September 29, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007979-2015

BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*

CONCURRING OPINION BY SHOGAN, J.: FILED JULY 19, 2017

I join my learned colleagues in the Majority in affirming the judgment

of sentence entered against Appellant Jesse Ray Bush on September 29,

2016. I write separately, however, to address the role of certified legal

interns in our state appellate courts and to urge our Supreme Court to

expand upon that role by permitting oral argument on behalf of indigent

clients with a supervising attorney.

At oral argument in this appeal, a certified legal intern appeared on

behalf of the Commonwealth under the supervision of the assistant district

attorney. The panel permitted the intern to argue the Commonwealth’s

position with no objection from opposing counsel.
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*
Former Justice specially assigned to the Superior Court.
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Pennsylvania Bar Admission Rules 321 and 322 set forth the

circumstances under which a certified legal intern may appear in a civil or

criminal matter. 204 Pa. Code §§ 321, 322 (2007). Rule 321 sets forth the

requirements for formal participation in legal matters by law students and

law school graduates, as follows:

(a) General rule. The requirements for eligibility for formal
participation in legal matters by a law student or law school
graduate pursuant to Rule 322 (relating to authorized activities
of certified legal interns) are:

(1) Enrollment in or graduation from an accredited law
school or a law school that has been approved by the
Board which has filed and is actively pursuing an
application for accreditation with the American Bar
Association; provided that students who attend or
graduated from a law school that is located in a jurisdiction
that has a program permitting law students to participate
in legal matters which does not afford students attending
law school in Pennsylvania the same privilege or
opportunity to formally participate in legal matters as a law
student in the jurisdiction as is granted to students
attending law school in the jurisdiction, shall not be eligible
to participate in legal matters pursuant to Rule 322.

(2) Completion of legal studies amounting to at least three
semesters, or the equivalent if the law school is on a basis
other than the semester basis.

(3) Existence and maintenance of certification as
prescribed in Subdivision (b) of this rule.

(4) Introduction to the judge or magisterial district judge
before whom the law student or law school graduate is
appearing by a member of the bar of this Commonwealth.

(5) Absence of a request for or receipt by the law student
or law school graduate of compensation or remuneration of
any kind for his or her services from the person on whose

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behalf the law student or law school graduate renders
services. This paragraph shall not prevent:

(i) An attorney or a law school, legal services
program, defender association, or government unit
from paying compensation to the law student or law
school graduate.

(ii) Any person other than the law student or law
school graduate from making such charges for
services as such person may otherwise properly
require.

(b) Certification. Only those law students or law school
graduates shall be eligible for the benefits of Rule 322 who have
been certified by the dean of their law school as being of good
character and competent legal ability, and as being adequately
trained to perform as a legal intern. The certification shall be
made by filing one copy thereof with the Prothonotary. The
certification:

(1) Shall be in writing on a form prescribed by the Board
and shall remain in effect until the expiration of 24 months
after it is filed, or until the announcement of the results of
the first bar examination following the completion of the
study of law by the student or law school graduate,
whichever is earlier. In the case of a student or law school
graduate who passes that examination, the certification
shall continue in effect until the student or law school
graduate is admitted to the bar.

(2) May be withdrawn at any time by the dean by filing a
notice to that effect with the Prothonotary. It is not
necessary that the notice state the cause for withdrawal.

(3) May be terminated by the Court at any time without
notice or hearing and without any showing of cause.

204 Pa. Code § 321.

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Rule 322 sets forth the authorized activities of certified legal interns,

and provides, in relevant part:

(a) General rule. Subject to the restrictions of this subdivision, a
certified legal intern may with the approval of a supervising
attorney:

(1) Appear before any government unit (other than
the Supreme, Superior or Commonwealth Courts) in
any civil or criminal matter on behalf of any indigent,
if the person on whose behalf the legal intern is appearing
consents to such appearance. The supervising attorney
must be personally present throughout the proceedings
where the legal intern is appearing on behalf of the
defendant in a criminal matter where the defendant has
the right to counsel under any provision of law.

(2) Appear in any civil or criminal matter on behalf of
the Commonwealth, if the Attorney General (or the
prosecuting attorney in the case of a criminal matter) or
his or her authorized representative consents to such
appearance. The approval of the supervising attorney and
the consent of the party represented required by this
subdivision shall be in writing and filed of record in the
matter and shall be brought to the attention of the judge
or magisterial district judge or the presiding officer of the
other government unit.

204 Pa. Code § 322(a)(1),(2) (emphases supplied).

In my experience, some members of the bench and bar are

interpreting Rule 322 as completely prohibiting a certified legal intern from

appearing as an oral advocate in Pennsylvania’s appellate courts. However,

I interpret Rule 322 as permitting appellate oral advocacy by a certified legal

intern under subpart (a)(2).

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As this Court has explained:

[w]here the legislature includes specific language in one section
of the statute and excludes it from another, the language should
not be implied where excluded. Moreover, where a section of a
statute contains a given provision, the omission of such a
provision from a similar section is significant to show a different
legislative intent.

Commonwealth v. Johnson, 125 A.3d 822, 831 (Pa. Super. 2015)

(quoting Commonwealth v. Kinney, 777 A.2d 492, 495 (Pa. Super. 2001)

(citation and emphasis omitted)). Applying these concepts to Rule 322, I

note that subpart (a)(1) includes language which prohibits a certified legal

intern from appearing in Pennsylvania’s appellate courts on behalf of an

indigent party in either a civil or criminal matter. 204 Pa. Code

§ 322(a)(1) (allowing a certified legal intern to appear before any

government unit “(other than the Supreme, Superior or Commonwealth

Courts)”). However, that limiting language is not included in subpart (a)(2),

which allows a certified legal intern to appear on behalf of the

Commonwealth in any civil or criminal matter subject to certain

requirements. 204 Pa. Code § 322(a)(2). The limiting language included in

Rule 322 subpart (a)(1) but excluded from subpart (a)(2) is not to be

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implied in the latter. Id.1; Johnson, 125 A.3d at 831. Thus, I agree with

the District Attorney of York County that a certified legal intern may present

oral argument on behalf of the Commonwealth in the Superior Court if the

requirements of Rules 321 and 322 are met.2

Further, regarding the limiting language of subpart (a)(1), I agree with

my esteemed former sister jurist3 that the time has come for certified legal

interns to serve as oral advocates on behalf of indigents in Pennsylvania’s

appellate courts. See Judge Maureen Lally-Green (ret.), An Idea Whose

Time Has Come: Certified Legal Interns as Oral Advocates in the

Pennsylvania Appellate Courts, 49 Duq. L. Rev. 477 (Summer 2011). Like

Judge Lally-Green, I advocate for amending Rule 322(a)(1) “to delete the

prohibition against law student oral advocacy in the Supreme, Superior and
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1
Presumably, the omission of the limiting language in subpart (a)(2) is
significant to show a different intent with regard to certified legal interns
providing appellate oral advocacy on behalf of indigents versus certified legal
interns providing appellate oral advocacy on behalf of the Commonwealth.
This “intent” no doubt involves a criminal defendant’s constitutional right to
counsel and access to civil legal aid. However, an indigent’s access to legal
representation, especially within the civil area, may be severely limited given
decreasing funding.
2
In this case, however, there is no indication in the record that the
approval of the supervising attorney was filed in writing pursuant to Rule
322(a)(2) or that the requirements of Rule 321 were met. I remind the
District Attorney of York County of the need to strictly comply with Rules 321
and 322.
3
The Honorable Maureen Lally-Green is retired from the Superior Court of
Pennsylvania and currently the Dean of The Law School, Duquesne
University.

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Commonwealth Courts.” Id. at 502. Indeed, as Judge Lally-Green’s

research revealed, the vast majority of state appellate courts and almost all

federal courts of appeal permit law students, subject to certain

requirements, to present oral argument. Id. at 486.

Two practical concerns underscore my position. First, declining

government and private funding for legal services for the poor “means fewer

attorneys to provide free legal assistance,” particularly in areas of acute civil

need. Jo Ciavaglia, Poor find it harder to get free legal help for civil cases,

BUCKS COUNTY COURIER TIMES (June 7, 2017) at 4. Therefore, allowing

certified legal interns to provide oral appellate advocacy on behalf of

indigents promotes the beneficial goal of providing additional free legal

counsel without straining state and federal funds. Second, “as focused as

law schools in Pennsylvania are on the trial court arena, the focus becomes a

bit ephemeral when the backdrop is the appellate arena.” Lally-Green, J.,

An Idea Whose Time Has Come, 49 DUQ. L. REV. 477, 479. Thus, allowing

certified legal interns to provide oral advocacy provides “effective skills

training of law students” in the appellate arena. Id. at 503. This need is

highlighted by the American Bar Association’s recent adoption of

accreditation Standard 303, which requires law schools to provide students

beginning their studies in the fall of 2016 with six credits of experiential

training. ABA, Standards 303(a)(3), 303(b), and 304, MANAGING DIRECTOR’S

GUIDANCE MEMO, 1 (March 2015).

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Not surprisingly, Rules 321 and 322 safeguard the interests of civil and

criminal litigants by mandating that a certified legal intern, the intern’s law

school, and the supervising attorney comply with specific requirements. I

would expand upon those requirements to include completion of an appellate

practice course, clinic, or externship prior to being permitted to argue before

Pennsylvania’s appellate courts.

In conclusion, I respectfully urge the Pennsylvania Supreme Court to

reexamine the prohibition set forth in Rule 322(a)(1). Rule 322 should be

amended to allow certified legal interns who satisfy all mandated

requirements to argue in our appellate courts on behalf of indigent clients.

P.J.E. Stevens joins this Concurring Opinion.

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