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HomeMy WebLinkAbout90-1672-R Criminal COMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA V. ' · 1627-R CRIMINAL 1990 REGINALD BOYER · IN RE: DEFENDANT'S MOTION FOR POST CONVICTION RELIE,~ Before HOFFER, P.J. ORDER OF COURT AND NOW, January 15, 1998, pursuant to the Opinion filed this date, and after careful consideration of the parties' briefs and testimony presented, Defendant's Motion under the Post Conviction Relief Act is denied. \ By the Court, Jaime M. Keating, Esquire Chief Deputy District Attomey For the Commonwealth Darrell C. Dethlefs, Esquire Wagner Building - Suite 205 355 North 21 st Street Camp Hill, PA 17011 For the Defendant COMMONWEALTH : IN THE COURT Of COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : 1627-R CRIMINAL 1990 REGINALD BOYER : IN RE: DEFENDANT'S MOTION FOR POST CONVICTION RELIEF OPINION HOFFER, P.J.: In this case we address a motion under the Post Conviction Relief Act filed by Reginald Boyer. The facts are as follows: Reginald Boyer, (hereinafter "Defendant"), was an inmate at the State Correctional Institution at Camp Hill on October 25, 1989, when a riot occurred. As a result, Defendant was charged with crimes of rioting, kidnapping, unlawful restraint, and aggravated assault. Before trial, all charges except for the rioting charge were dropped. The jury retumed a verdict of guilty on the rioting charge after a trial held January 22 and 23, 1991. Defendant's post trial motions were denied and he was sentenced to sixteen months to five years. The Superior Court affirmed the judgment of sentence on June 9, 1992. On June 22, 1992 Defendant filed his first motion under the Post Conviction Relief Act. (Hereinafter, "P.C.R.A.") The motion alleged that Defendant's court appointed counsel provided ineffective assistance at trial and that Nolan Burlark, a witness for the Commonwealth who was also incarcerated at Camp Hill Prison 1627-R CRIMINAL 1990 when the riots took place, perjured himself at Petitioner's tdal. This Court denied Defendant's first P.C.R.A. motion on October 17, 1994. Defendant appealed to the Superior Court but the appeal was dismissed on September 8, 1995,-for failure to file a brief. In this opinion, we address the second P.C.R.A. motion that Defendant has filed. In his motion, filed January 16, 1997, Defendant alleges ineffective assistance of counsel for the second time. Defendant claims that his court appointed trial counsel, Robert J. Mulderig, failed to effectively cross examine Burlark and that this failure so prejudiced the truth-determining process that the verdict reached in January of 1991 can not be considered reliable. According to .the Defendant, counsel's error occurred when he failed to use Burlark's prior unsworn statements from police reports to impeach him and when counsel failed to enter the reports into evidence. Defendant alleges that Budark could have been effectively impeached if trial counsel had questioned him about statements he made in police reports recorded just after the riots. In one report, dated December 20, 1989, Burlark claimed that the Defendant was standing around during the rioting and that the Defendant told him to put on a mask. In another report, based on a November 22, 1989 interview, Burlark reported that a different inmate told him to put on the mask and the 1627-R CRIMINAL 1990 Defendant was not mentioned at all. A third report, dated November 29, 1989, listed all those inmates that Burlark claimed were involved in the rioting and Defendant's name was absent. At trial, Defendant's counsel did attempt to impeach Burlark using Burlark's prior sworn statements taken from Defendant's preliminary hearing, but not the prior unsworn statements from the police reports. At the present hearing, the parties agreed that the issue of this P.C.R.A. motion had not yet been litigated. Counsel claimed that he used reasonable trial tactics when he tried to impeach Burlark using the obvious inconsistency between his trial testimony and his preliminary hearing testimony, rather than the weak inconsistency generated by the fact that Burlark's police reports concerning Defendant were inconsistent? Discussion A second motion for post conviction relief will not be entertained unless there is a strong prima facie showing that a miscarriage of justice may have occurred. Com. v. Szuchon, 534 Pa. 483, 487, 633 A.2d 1098, 1099 (1993). 'This standard is met if the petitioner can demonstrate either: (a) that the proceedings resulting ~ At the hearing for Defendant's first P.C.R.A. petition, counsel testified that his trial tactic was to question Burlark on the obvious inconsistencies and get him off the stand quickly because counsel believed that the jury would not be influenced by the impeachment of a witness who was a Camp Hill Prison inmate at the time of the riots. Defendant's counsel, instead, wanted to focus on an attempt to have the police officer, who testified against the Defendant, recant his testimony. 3 1627-R CRIMINAL 1990 in his conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate, or (b) that he is innocent of the crimes charged. Id_.~. at 487, 633 A.2d at 1100. See also Com. v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996); Corn v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). A motion for P.C.R.A. relief based upon an allegation that trial counsel Was ineffective because of a failure to call witnesses raises the possibility that a viable defense was not presented at trial. Com. v. Lassen, 442 Pa. Super. 298, 323, 659 A.2d 999, 1012 (1995). This type of allegation implicates the reliability of the truth- determining process. !.d. In the case at bar, Defendant has alleged that his trial counsel was ineffective. Defendant's allegation is based on trial counsel's failure to cross examine Burlark concerning his unsworn statements made to police in which the Defendant was not consistently referred to as an active participant in the riots at Camp Hill Prison. Failure to effectively cross examine a witness can be considered analogous to a failure to call witnesses. Because Defendant's allegation does implicate the truth-determining process and the parties agree that it has not been previously litigated, Petitioner's claim will be adjudicated in this opinion. In order to prove ineffective assistance of counsel, a petitioner must demonstrate: (a) the underlying claim is of arguable merit; (b) counsel's 4 1627-R CRIMINAL 1990 performance was unreasonable; and (c) counsel's ineffectiveness prejudiced the defendant. Com. v. Beasley, 544 Pa. 554, 565, 678 A.2d 773, 778 (1996); Com. v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975 (1987); Com. v. Robinson, 452 Pa. Super. 606, 611-12, 682 A.2d 831,834 (1996). Further, the prejudice suffered by the defendant must be of the type that so undermines the truth-determining process that it can no longer be considered reliable. 42 Pa. C.S.A. Section 9543(a)(2)(ii). See Com. v. Korb, 421 Pa. Super. 44, 617 A.2d 715 (1992). Defendant argues that his court appointed counsel was ineffective when he failed to question Burlark concerning prior unsworn statements documented in police reports of the October 1989 riots. Defendant claims that these statements were inconsistent with the witness' testimony at trial and the failure to use them to impeach amounted to ineffective assistance of counsel. The inquiry ends if the Defendant has failed to present an issue of arguable merit because counsel may not be deemed ineffective for failing to assert a claim that lacks merit. Com. v. Beasley, 544 Pa. 554, 565, 678 A.2d 773, 778 (1996). Petitioner has failed to present an issue of arguable merit because the inconsistencies can not be considered truly conflicting. Budark did label the Defendant, in one police report, as a riot participant. The fact that the Defendant was not mentioned in all of the police reports does not preclude him from having 5 1627-R CRIMINAL 1990 been involved in the rioting. Petitioner can not make a successful claim for relief based on an inconsistency that does not exist. If a claim has merit, next, a petitioner must demonstrate that counsel's course of action had no reasonable basis. Com. v. Lewis, 430 Pa. Super. 336, 342, 634 A.2d 633, 636 (1993). This Court believes that the Defendant has neither presented an issue of arguable merit nor proven that counsel's chosen course of defense was unreasonable. At trial, Defendant's counsel questioned Burlark conceming pdor swom statements made at Defendant's preliminary hearing which seemed to be in direct conflict with Burlark's trial testimony.2 It was a reasonable course of action for counsel to challenge Burlark on the fact that his preliminary hearing testimony and his tdal testimony were not consistent because counsel believed that these incongruities amounted to perjury. It was reasonable to believe that no other impeachment was necessary after challenging Burlark on the obvious inconsistencies in his sworn testimony. Because the Defendant has failed to present an issue of arguable merit and has not proven that his trial counsel's actions were unreasonable, Defendant can not show that he suffered prejudice so severe that the truth-determining process can no longer be considered reliable. Based upon the discussion above, Petitioner's Motion for P.C.R.A. relief is denied. 2 At Defendant's preliminary hearing, Burlark testified that the Defendant was standing around during the rioting. At trial, Burlark claimed that the Defendant actively participated in the riots by giving other inmates instructions and holding an officer while inmates attacked the officer. 6