Beaver County DA Ethics Opinion
A county prosecutor sent a letter asking the state bar association for guidance after District Attorney David Lozier would not follow her advice to “conflict himself out” of cases filed against Aliquippa’s assistant police chief.
The bar association’s response to Assistant District Attorney Angela Reed-Strathman’s letter resulted in Lozier recusing his office from prosecuting Joseph Perciavalle’s cases, and turning them over to the state Attorney General’s Office.
BeaverCountian.com has obtained a copy of the March 20 ethics advisory opinion sent to Reed-Strathman by the Pennsylvania Bar Association (PBA) Legal Ethics and Professional Responsibility Committee.
At the time she reached out to the PBA, Reed-Strathman was prosecuting the cases against Perciavalle, who has been on paid administrative leave since his arrest by county detectives in June 2018.
Prior to Perciavalle’s charges, the officer had gone to Lozier repeatedly in 2016 with possible evidence of corruption in the police department.
The officer has alleged that Lozier took no action on the information he provided and that his arrests by county detectives, several of whom are former Aliquippa police officers, were acts of retaliation. Lozier denied those claims.
Perciavalle’s attorney made it clear he intended to call Lozier as a witness as part of his defense.
“Given the fact that the District Attorney will be a material witness in the case, you have recommended that he ‘conflict this case out’ but he has not indicated a willingness to do so as of this date,” the PBA wrote to Reed-Strathman in response to her request for guidance.
“Your first concern involves your concern that the District Attorney has expressed some direction that you file a motion to quash any subpoena that may be forthcoming to him. Given what you have described, it is very difficult for me to believe that the District Attorney will not be a critical, material witness for one side, the other, or both. Accordingly, you have indicated that you see no grounds to move to quash the subpoena and I am hard pressed to determine on what grounds for such a motion you might raise that could be proffered consistent with your ethical obligations.”
The PBA warned Reed-Strathman that if she followed Lozier’s direction, she could be placing herself at risk of committing serious ethics violations.
“If you do not have any reasonable, good faith argument to seek to quash that subpoena, you are at serious risk of an ethical violation by filing such a motion simply because a person in authority to you has directed you to do so. The ethical obligations of counsel are personal and cannot be averted because of a direction from a superior. You should thus discuss this matter again with the District Attorney to insure a proper course of action.”
Lozier’s decision to personally meet with Perciavalle about his claims against the Aliquippa Police Department placed the district attorney’s office in a unique position and as a result the PBA recommended it be recused from the case.
“The case is truly an unusual one in which the District Attorney, in the proper exercise of his function, has become a material witness in a matter in which the import of his testimony will most likely be contested and may be the ultimate fact on which the case turns. Referral to the Attorney General would reflect that unique complexity in the case and not imply any reluctance on the part of your office that justice be served here.”
Perciavalle was first arrested by county detectives on June 8, 2018 on charges of felony distribution of sexually explicit material to a minor, felony unlawful contact with a minor, and misdemeanor corruption of a minor.
County detectives alleged that Perciavalle sent then-17-year-old Lauren Watkins a text message containing a short video of a semi-nude woman urinating while on a swing.
Both Perciavalle and Watkins have said the “meme” video was sent to her by mistake as part of a group text message intended for her father, Aliquippa Police Sgt. Kenneth Watkins, who has since been demoted to patrolman.
The video was discovered when detectives were examining Lauren Watkins’ phone as part of their investigation into the 2018 Mother’s Day murder of Rachael DelTondo.
During a preliminary hearing on Dec. 4, Watkins testified that the clip was accidentally sent to her by Perciavalle, and that she had not viewed it until she was shown a copy by county detectives as part of their investigation.
District Judge Edward Howe subsequently dismissed the two felony charges of disseminating sexually explicit materials and unlawful contact with a minor, but held for trial the misdemeanor corruption of minors charge.
Howe also held for court a charge from a second case filed by county detectives alleging a felony wiretap violation for a recording Perciavalle made of Aliquippa Police Chief Donald Couch, who is also currently on administrative suspension. County detectives discovered the recording while searching Perciavalle’s phone which they seized following his first arrest.
Perciavalle argues his recording of Couch was lawful, because he had been acting as an informant against Couch and had reason to fear there may be an attempt to intimidate him.
Following the PBA’s ethics guidance, the Beaver County District Attorney’s Office recused itself from prosecuting Perciavalle. The Attorney General’s Office then took over prosecution of the cases against him and on May 9 refiled the two felony charges against him that were dismissed by Howe last year.
The results were the same, with a second judge dismissing the case.
Defense attorney Steven Townsend strongly criticized the Attorney General’s Office for refiling the charges against Perciavalle, echoing his clients assertions that he believes what the public is witnessing is retaliation against a whistleblower.
In a motion still pending before the court, Townsend is asking a common pleas judge to dispose of the remaining corruption of a minor charge from Dec. 4, saying the case can not stand as a matter of law when the underlying offenses have all been dismissed. Townsend also has a motion pending to suppress the recorded conversation between Perciavalle and Couch, alleging county detectives overstepped the authority of their search warrant when going through Perciavalle’s phone.
The PBA’s Legal Ethics and Professional Responsibility Committee concluded its advisory letter by praising Reed-Strathman for reaching out to them for guidance.
“You are to be commended for recognizing the ethical issues present in this situation. It may be that you should ask (District Attorney David Lozier) to similarly seek ethical guidance in how to proceed given that the (ethics rule in question) is most directly applicable to him in this circumstance.”
BeaverCountian.com contributing editor Lori Boone contributed to this report.