J-A28035-22

2023 PA SUPER 48

COMMONWEALTH OF PENNSYLVANIA

v.

NATHANIEL ROY LEWIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1055 EDA 2022

Appeal from the Judgment of Sentence Entered March 14, 2022

In the Court of Common Pleas of Chester County 

Criminal Division at No(s): CP-15-CR-000542-2019

COMMONWEALTH OF PENNSYLVANIA

v.

NATHANIEL ROY LEWIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1584 EDA 2022

Appeal from the Judgment of Sentence Entered March 14, 2022

In the Court of Common Pleas of Chester County 

Criminal Division at No(s): CP-15-CR-000547-2019

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

OPINION BY PANELLA, P.J.: FILED MARCH 23, 2023

The justice system in America is a distinctive system which requires 

cooperation among diverse professionals and entities who have, at times,

conflicting goals but a united responsibility – a fair and just trial. This case 

demonstrates how unethical conduct by an attorney disrupts the integrity of 

the criminal justice system and causes the corruption of the criminal trial 
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process. The Appellant’s original choice for defense counsel, Lauren Wimmer, 

Esq., engaged in conduct that offended the trial court’s expectations of the 

ethical and vigorous advocacy required from a member of the Bar of 

Pennsylvania. Her actions put the wheels in motion for the unfortunate, and 

regrettable outcome that a new trial is required. This is necessary although 

we must sympathize with the frustration of the trial court in having to address 

this issue and the anger of the prosecution after it learned of her actions. 

However, as always, it is the application of the law which determines the 

appropriate appellate decision and not the personal outrage which results from 

the conduct of counsel. 

In this case, Nathaniel Roy Lewis appeals from the judgment of sentence 

entered after a jury convicted him of two counts of attempted homicide and 

related crimes arising from an incident where Lewis fired more than 30 rounds

from a high-powered semi-automatic rifle at members of the Chester County 

Emergency Response Team (“CCERT”). Prior to trial, the trial court disqualified 

Lewis’s chosen counsel based on allegations she had leaked portions of 

footage from CCERT team leader Detective Paul Trautmann’s body camera to 

national media and further, had made public statements impugning Detective 

Trautmann’s credibility on a television broadcast. Lewis contends the trial 

court violated his Sixth Amendment right to counsel by disqualifying his 

counsel. We agree, and therefore vacate his judgment of sentence and 

remand for a new trial.
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For purposes of this appeal, Lewis does not dispute the following 

summary of the evidence at trial. See Appellant’s Brief, at 2-7. In the evening 

of December 25, 2018, Lewis barricaded himself in his residence. CCERT was 

summoned to the scene and communicated with Lewis in an effort to get him 

to surrender. Shortly after midnight, Lewis began shooting out of his 

residence. Over the next six hours, Lewis fired at least 30 shots, including 

several that struck an armored vehicle operated by CCERT. Just after 7 a.m., 

Lewis left his residence and surrendered to CCERT members.

The Commonwealth subsequently charged Lewis with 12 counts of 

attempted homicide, 24 counts of aggravated assault, 21 counts of recklessly 

endangering another person, two counts of possessing an instrument of crime, 

and one count of institutional vandalism. Lewis was appointed a public 

defender, but quickly became dissatisfied with counsel. On April 25, 2019, 

Lewis privately retained Attorney Wimmer to represent him in this matter.

For over a year, this case proceeded through discovery and other pretrial matters. Then, as the case neared trial in early July 2020, CBS News 

broadcast two segments based on this case. First, CBS News aired footage 

from a body camera worn by a CCERT officer which revealed members of 

CCERT suggesting, outside of Lewis’s presence, that Lewis commit suicide. 

This recording had been produced to Attorney Wimmer during discovery, but 

CBS News credited Lewis’s family for the recording. Second, CBS News aired 
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an interview with Attorney Wimmer that commented on the professionalism 

of the prosecuting police officer, Detective Trautmann.

On July 14, 2020, the Commonwealth filed a motion in limine, seeking, 

among other requests discussed more fully below, to disqualify Attorney 

Wimmer from the case. The court held a hearing the next day, and after 

hearing testimony from Assistant District Attorney Myles Matteson, 

disqualified Attorney Wimmer. Lewis retained new counsel, and over a year 

later, in September 2021, a jury convicted Lewis of two counts of attempted 

homicide, 13 counts of aggravated assault, seven counts of recklessly 

endangering another person, two counts of possessing an instrument of crime, 

two counts of criminal mischief, one count of terroristic threats, and one count 

of institutional vandalism. In early 2022, the trial court imposed a sentence of 

271⁄2 to 57 years in prison. This timely appeal followed.

In his single issue on appeal, Lewis challenges the disqualification of his 

chosen counsel, Attorney Wimmer. We apply a plenary standard of review to 

Lewis’s claim. See Darrow v. PPL Electric Utilities Corp., 266 A.3d 1105, 

1111 (Pa. Super. 2021). While the Commonwealth contends the proper 

standard of review is for abuse of discretion, we note that the authorities relied 

upon by the Commonwealth deal with alleged conflicts of interest between a 

district attorney’s office and an alleged victim. See Commonwealth v. 

Lutes, 793 A.2d 949, 955 (Pa. Super. 2002); Commonwealth v. Stafford, 

749 A.2d 489, 494 (Pa. Super. 2000). A prosecutor is not counsel for an 
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alleged victim. See Commonwealth v. Price, 684 A.2d 640, 642 (Pa. Super. 

1996). Therefore, Lutes and Stafford are distinguishable.

We begin our analysis by reiterating that while this appeal necessarily 

focuses on Attorney Wimmer’s actions, it is Lewis’s constitutional right to 

counsel that is at stake. It is axiomatic that a criminal defendant has an 

absolute right to counsel under the Sixth Amendment of the Constitution of 

the United States and Article I, Section 9 of the Pennsylvania Constitution. 

Commonwealth v. Moore, 633 A.2d 119 (Pa. 1993), cert. denied, 513 U.S. 

1114 (1995). Furthermore, Lewis has a constitutional right to “a fair 

opportunity to secure counsel of his own choice.” United States v. GonzalezLopez, 548 U.S. 140, 144 (2006). Specifically, the Sixth Amendment to the 

United States Constitution “commands, not that a trial be fair, but that a 

particular guarantee of fairness be provided – to wit, that the accused be 

defended by the counsel he believes to be best.” See id., at 146. If Lewis’s 

right to proceed with counsel of his choosing were violated, he is entitled to a 

new trial as prejudice is presumed. See id., at 144.

That right is not unconstrained, however. See id. Reasonable limits 

based on the interests of justice can override Lewis’s desires. The most 

obvious example of such a limit is the requirement that, other than by 

proceeding pro se, Lewis cannot choose an attorney that is not licensed and 

in good standing, or otherwise admitted to practice law in the Commonwealth

of Pennsylvania. See, e.g., Powell v. Unemployment Compensation 
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Board of Review, 157 A.3d 884, 890-91 (Pa. 2017). Here, there is no 

indication in the record that Attorney Wimmer was not licensed or not in good 

standing in Pennsylvania. Instead, the trial court disqualified Attorney 

Wimmer based on its own finding that Attorney Wimmer had violated certain 

provisions of the Rules of Professional Conduct.

There is no question that the trial court possessed the power to 

disqualify Attorney Wimmer upon finding that she violated the Rules of 

Professional Conduct. See Darrow, 266 A.3d at 1111. However, that power 

was severely limited: “disqualification is appropriate only when both another 

remedy for the violation is not available and it is essential to ensure that the 

party seeking disqualification receives the fair trial that due process requires.” 

Id.1 Accordingly, we may affirm the order disqualifying Attorney Wimmer only 

if: (1) there was no other remedy available for her violations, and (2) there 

was no other way to ensure the Commonwealth’s right to a fair trial.

To address both prongs, we must review the conduct the trial court 

found to be in violation of the Rules. First, the court found that Attorney 

Wimmer had made public statements on CBS attacking the prosecuting 

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1 Gonzalez-Lopez arguably introduces some worry about how the second 

part of the Darrow test applies here. However, as we conclude that the 

Commonwealth failed to establish the requirements of the Darrow test, we

do not reach the issue of whether Gonzalez-Lopez imposes a higher standard

when the Commonwealth seeks to disqualify a criminal defendant’s chosen 

counsel.
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officer’s character and credibility. See Trial Court Opinion, 6/13/22, at 11.2

The court also found that Attorney Wimmer had published the body camera 

footage on CBS knowing that it would be inadmissible at trial. See id., at 12. 

The court concluded that Attorney Wimmer’s “actions fall squarely into the 

prohibited actions as enumerated in both Rule 3.6 ... and the comments 

thereto[.]” Id., at 11. 

In general, Rule 3.6 prohibits lawyers involved in a case from making 

public statements that “have a substantial likelihood of materially prejudicing 

an adjudicative proceeding in the matter.” Pa.R.P.C. 3.6. Further, the 

comment to the Rule clarifies that public statements regarding the character 

or credibility of a witness are “more likely than not to have a prejudicial effect 

on a proceeding.” Pa.R.P.C. 3.6, cmt. Further, publication of prejudicial

information about the case that would be inadmissible at trial is also clearly 

prohibited by the Rule. See id.

The trial court’s factual findings are supported by the record. And Lewis

has not made any serious attempt to challenge these findings on appeal. See 

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2 The trial judge in this matter has since retired. The 1925(a) opinion was 

prepared by a different judge. Importantly, it is the retired trial judge’s 

reasoning, and not the reasoning of the judge who prepared the 1925(a) 

opinion, which controls. See In Interests of M.W., 194 A.3d 1094, 1097 n.1 

(Pa. Super. 2018). However, our review of the 1925(a) opinion reveals that it 

accurately and correctly sets forth the reasoning utilized by the trial judge. 

We discern no conflict between the two analyses; rather, the 1925(a) opinion

does no more than provide a thorough explanation of the trial judge’s 

reasoning.
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Appellant’s Brief, at 11 (“True as it may be that Ms. Wimmer participated in 

unfortunate pretrial publicity about this case...”); see also N.T., 7/15/20, at 

12 (counsel for Attorney Wimmer arguing “the right to counsel should 

outweigh whatever errors a young lawyer might have made in being a little 

too zealous in her representation.”). 

However, as noted above, that conclusion is not co-extensive with a 

conclusion that the trial court was empowered to override Lewis’s choice of 

counsel. While a court may disqualify counsel for violations of the Rules of 

Professional Conduct, it cannot do so merely to punish counsel for the 

violation. See Estate of Pedrick, 482 A.2d 215, 221 (Pa. 1984). The trial 

court does not have the general power to sanction attorneys pursuant to the 

Rules of Professional Conduct. See id.; see also Pennsylvania Rules of 

Professional Conduct, Preamble and Scope, ¶ 19 (“The Rules are designed to 

... provide a structure for regulating conduct through disciplinary agencies.”).

Therefore, as noted above, the court could only disqualify Attorney Wimmer

for a violation of the Rules if it were essential to protect the Commonwealth’s 

right to a fair trial and no other remedy could accomplish the same result. See 

Darrow, 266 A.3d at 1111.

Here, the trial court concluded that

[t]here is no question that the release of officer worn body 

cameras to CBS and [Attorney] Wimmer’s interview with CBS 

placed the fairness and integrity of the defendant’s trial 

undoubtedly in jeopardy. As succinctly stated, and adopted by this 

court, the [trial judge] found,
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[t]here’s a lot more detail that I could get into, but 

essentially looking at the interest of justice and the 

disgraceful, unethical behavior of the attorney attempting 

to taint the jury pool by putting out irrelevant information 

that a jury would never see, and further by trying to scare 

the police into making a different offer, it is so over the top 

and outrageous that I am convinced that a fair jury trial 

can’t [exist] with[Attorney] Wimmer in the case.

Trial Court Opinion, 6/13/22, at 13. The trial court concluded its reasoning by 

stating that it thought Attorney Wimmer’s conduct had “influenced this case 

so much that [Attorney] Wimmer should no longer be a part of it.” N.T., 

7/15/20, at 58.

We find two sources of error in the trial court’s explicit reasoning. First, 

the trial court’s reasoning was focused primarily on Attorney Wimmer’s past 

conduct. Such past-focused reasoning is an indicator of punitive intent.

Second, the court’s reasoning was focused on the outrageousness of Attorney 

Wimmer’s conduct, not on whether Attorney Wimmer was likely to continue 

acting in ways that would prejudice the Commonwealth’s right to a fair trial.

In fact, the defense team agreed that the issues underlying the 

Commonwealth’s motion to disqualify would be irrelevant at trial:3

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3 Attorney Wimmer had counsel, Samuel Stretton, Esq., to represent her 

interests at the hearing on the Commonwealth’s motion to disqualify. See 

N.T., 7/15/20, at 3 (Counsel stating “as you know, I’m here not as Mr. Lewis’ 

attorney but as Ms. Wimmer’s”). Attorney Wimmer was not a party to any 

matter relevant to the hearing, and the Rules prohibit counsel from acting as 

both advocate and witness in a proceeding. See Pa.R.P.C. 3.7. The 

Commonwealth had a second prosecutor acting as advocate at the hearing, 

allowing the former lead prosecutor, A.D.A. Matteson, to testify in support of 

(Footnote Continued Next Page)
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[Prosecutor:] There are three motions pending this morning.

The first motion is for an order – a continued order 

prohibiting pretrial statements pending trial. It’s my 

understanding, Your Honor, there is no objection from the defense 

to Your Honor signing that order.

MS. WIMMER: That is correct, Your Honor.

MR. STRETTON: That is correct. Ms. Wimmer can speak for herself 

on that.

THE COURT: All right.

[Prosecutor:] Your Honor, the second motion is a motion in limine 

to exclude any information regarding the affiant or one of the 

officers in this case, ... to exclude a 1998 unrelated incident as not 

being relevant to this case.

And the other aspect of that motion is the Commonwealth’s 

motion to exclude any comments in the BearCat by unnamed 

officers and also Detective Trautmann as being not relevant in this 

case. My understanding is that there is an agreement with respect 

to that motion as well.

MR. STRETTON: That is correct. Your honor, we agree to it with 

the exception that if somehow a door would be opened up during 

trial – presumably it wouldn’t be – then we would go to side bar 

and ask for you to reconsider. Other than that, we agree.

THE COURT: All right. Do you represent Mr. Lewis?

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the motion to disqualify. And A.D.A Matteson did not continue to act as an 

advocate in this matter after testifying. As demonstrated in the transcript of 

proceedings set forth more fully below, it is unclear whether the trial court 

appreciated the quandary Attorney Wimmer faced at this hearing: testify in 

her defense, thereby disqualifying herself from further advocacy in this matter 

under Rule 3.7, or allow the Commonwealth to present the only evidence of 

record regarding one-on-one conversations between herself and A.D.A. 

Matteson. This hearing demonstrated many of the dangers the Rules of 

Professional Conduct seek to avoid by reserving disciplinary proceedings for a 

separate venue. 
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MR. STRETTON: No. I represent his attorney.

THE COURT: All right. Well, this is about Mr. Lewis. I’m going to 

ask that you be quiet, please.

MR. STRETTON: All right.

MS. WIMMER: Judge, that is correct as Mr. Stretton stated. I have 

no objection to the Commonwealth’s motion unless and until one 

of the witnesses opens the door to its admission or something 

relevant in the BearCat, at which time it would be an evidentiary 

ruling for trial.

THE COURT: All right. But at this point you would agree that none 

of it was relevant?

MS. WIMMER: Your Honor, I – for purposes of the motion, yes, I 

would agree that none of it is relevant at this stage of the 

proceedings.

N.T., 7/15/20, at 5-7.

Therefore, before the motion to disqualify was addressed, Attorney 

Wimmer had agreed not to make any more public statements about the case, 

and further, that evidence of the prosecuting officer’s disciplinary history, as 

well as the body camera footage, were not relevant at trial unless the 

Commonwealth presented testimony that made them relevant. These issues 

therefore could not have been valid bases for the trial court to conclude that 

disqualification was essential to preserve the Commonwealth’s right to a fair 

trial. 

The trial court also opined that disqualification was necessary as 

otherwise, Attorney Wimmer would be subject to “some personal vendetta or 

personal desire to prove her own innocence and avoid any other collateral 
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consequences.” N.T., 7/15/20, at 57. However, we cannot find any basis in 

the record to support this conclusion. There was no evidence, beyond the 

Commonwealth’s allegation that it planned on filing a disciplinary complaint,

that disciplinary proceedings had been initiated.4 And the Commonwealth’s 

complaint, if it were ever actually filed, would not, on its own, be sufficient 

grounds to disqualify Attorney Wimmer. To hold otherwise would give every 

adverse party the power of veto in the choice of counsel merely by filing a

disciplinary complaint against an opposing attorney. Further, given that 

Attorney Wimmer had conceded that the evidence at issue was, in fact, 

irrelevant absent an intervening circumstance, there was nothing for Attorney 

Wimmer to “prove” regarding her own innocence or lack thereof. Finally, bad 

feelings between opposing advocates, however unfortunate, are a fact of the 

adversarial system. What matters is not whether the advocates dislike each 

other, but whether they perform their professional duties in a civil manner.

On that note, there is no evidence showing that Attorney Wimmer or the 

Commonwealth could not fulfill their professional duties going forward.

While the trial court did not explicitly conclude that Attorney Wimmer 

had tainted the jury pool, we note for the sake of completeness that the record 

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4

In Commonwealth v. Selenski, No. 904 MDA 2015, 2016 WL 5745642 

(Pa. Super. filed August 11, 2016) (unpublished memorandum), appeal 

denied, 156 A.3d 334 (Pa. 2017), we affirmed the trial court’s decision to 

disqualify defense counsel. However, aside from being non-precedential, that 

case is factually distinguishable because there, defense counsel had already 

been criminally charged for actions taken while representing the defendant. 
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does not support such a finding. Pretrial publicity must be inflammatory in 

nature and sustained and pervasive in the local community in order to justify 

a presumption that jurors cannot perform their duties fairly and impartially. 

See Commonwealth v. Walter, 119 A.3d 255, 269 (Pa. 2015). Whether or 

not the CBS television segments were inflammatory, we fail to see how the 

two broadcasts on one station in the local community qualified as sustained 

and pervasive. In any event, during jury selection before the trial, only one 

potential juror indicated they had previous knowledge of the case:

JUROR NO. 43: I feel like I did read something about this when it 

first occurred. But that’s all I can recall.

THE COURT: And would it interfere with your ability to try the 

case fairly and impartially?

JUROR NO. 43: No, because I can’t recall as much as I ...

THE COURT: Very good. Thank you.

N.T., 9/13/2021, at 54-55. 

In sum, we conclude that the record does not support the trial court’s 

conclusion that disqualification of Attorney Wimmer was necessary to protect 

the Commonwealth’s fair trial rights. Lewis’s Sixth Amendment rights to 

private counsel of his choosing cannot be overborne under these 

circumstances. As this constitutes a structural error, we are therefore required 

to vacate the judgment of sentence and remand for a new trial.

Judgment of sentence vacated. Case remanded for a new trial. 

Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/2023