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HomeMy WebLinkAbout97-0084 criminal (2)COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo TERRY L. FAIRCHILD 97-0084 CRIMINAL TERM IN RE: PETITION FOR POST-CONVICTION RELIEF BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this. ~0 I-'day of March, 2000, the within petition for post-conviction relief, IS DENIED. By t!e Court~/'~ Jaime Keating, Esquire Edgar B. Bayley, ~7 For the Commonwealth Timothy L. Clawges, Esquire For Petitioner :saa COMMONWEALTH IN THE COURT Of COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. TERRY L. FAIRCHILD 97-0084 CRIMINAL TERM IN RE: PETITION FOR POST-CONVICTION RELIEF BEFORE BAYLEY, J. OPINION AND ORDER OF COURT BAYLEY, J., March 30, 2000:-- On September 24, 1997, petitioner, Terry L. Fairchild, was convicted by a jury of homicide by vehicle,1 homicide by vehicle while driving under the influence,2 and driving under the influence? He was convicted by the trial judge of the summary offense of reckless driving.4 On October 21, 1997, petitioner was sentenced on the count of homicide by vehicle while driving under the influence to undergo imprisonment in a state correctional institution for a period of not less than three and a half years or more than seven years consecutive to another sentence that he was serving. On the count of homicide by vehicle petitioner was sentenced to undergo imprisonment in a state correctional institution for a period of not less than two and a half years or more than five years to run concurrent with the sentence for homicide by vehicle while driving 1. 75 Pa.C.S. § 3732. 2. 75 Pa.C.S. § 3735. 3. 75 Pa.C.S. § 3731. 4. 75 Pa.C.S. § 3736. 97-0576 CRIMINAL TERM under the influence. On the count of driving under the influence petitioner was sentenced to undergo a period of imprisonment in a state correctional institution for not less than forty-eight hours nor more than two years, consecutive to the sentence for homicide by vehicle while driving under the influence. A fine was imposed on the count of reckless driving. Petitioner filed this petition for relief under the Post-Conviction Relief Act, 42 Pa.C.S. Section 9541 et seq. Counsel was appointed and hearings were conducted on October 5 and November 12, 1999. Two issues have been briefed and are ready for decision: (1) whether trial counsel was ineffective for not requesting a jury instruction concerning the Commonwealths not securing or preserving the vehicle involved in the incident, and (2) whether trial counsel was ineffective for not filing a direct appeal on petitioner's behalf from the judgment of sentence. In Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999), the Supreme Court of Pennsylvania stated that the test for proving ineffective assistance of counsel in a PCRA petition is: The petitioner must still show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. This requires the petitioner to show: (1) that the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. What we hold today is that, where the petitioner has demonstrated that counsel's ineffectiveness has created a reasonable probability that the outcome of the proceedings would have been different, then no relial31e adjudication of guilt or innocence could have taken place. (Emphasis added.) -2- 97-0576 CRIMINAL TERM The evidence at trial, in a light most favorable to the Commonwealth,5 revealed that on September 16, 1995, at 1:05 a.m., petitioner was operating an automobile owned by his mother on Trindle Road in Cumberland County. There were two passengers in the vehicle, Christine Unger, petitioner's girlfriend, and John Miller, a cousin of petitioner. A one-car accident occurred when the vehicle hit a utility pole and flipped over several times. John Miller was thrown from the vehicle and killed. Blood was drawn from petitioner at 2:10 a.m. which tested to a blood alcohol content of .155% serum. A toxicologist provided relate-back testimony that petitioner's whole blood alcohol level at the time of the accident was. 152%. Linda Ann Becker was in her house and heard the accident. She ran outside and saw petitioner in the front seat of the wrecked car with his feet at the driver's pedals. Christine Unger was in the backseat and the decedent underneath the car. Paul Fernbaugh, who lived nearby, also immediately responded to the scene. He saw petitioner in the front seat of the car, Christine Unger was in the backseat, and decedent underneath the car. These were the positions in which the police found the three persons. The wrecked car was towed to a salvage yard. State troopers examined the car on several occasions following the accident although it was not impounded. The troopers did not try to lift any fingerprints from inside the vehicle. The car came under the control of the owner and insurance carrier. 5. Commonwealth v. Little, 418 Pa. Super. 558 (1992). -3- 97-0576 CRIMINAL TERM Matthew Hockley, who knew petitioner, talked to him well after the accident. Petitioner told Hockley that he was driving the car at the time of the accident. Petitioner talked to Trooper Steven Seaworth well after the accident. Petitioner told the trooper that (1) at the time of the accident Christine Unger was in the backseat, (2) he had driven the vehicle to the Trindle Inn and when they left before the accident he did not remember who was driving, and (3) he was not the driver at the time of the accident but he did not know who the driver was. Petitioner was seriously injured in the accident and the charges against him were not filed until October 30, 1996, a little over a year after the accident. DISCUSSION At trial, Trooper William Palmero of the Pennsylvania State Police, who investigated this accident, testified on cross-examination: We had information that all three people that were inside the vehicle had access to that vehicle and, in fact, all three had opportunities to be in and out of that vehicle numerous times. Even if we were able to develop a fingerprint off of something like a steering wheel, which I - even during car cases I have never had that happen, but if it did develop something off the steering wheel, all it says is at some point in time that person touched the steering wheel. There would be no way to say if they touched it today, yesterday, or last month. It would have been worthless as far as identifying who the driver was. Petitioner did not testify at trial. Neither did his girlfriend Christine Unger. Petitioner called John Balshy, a private investigator and fingerprint examiner, who was hired by defense after the charges were filed. The investigator testified that he examined the wrecked vehicle and sought to take fingerprints but by that time the -4- 97-0576 CRIMINAL TERM vehicle had been so tainted that no reliable prints could be obtained. He testified that it might have been possible to lift prints from the steeling wheel if the vehicle had not been tainted. Defense counsel argued to the jury that the Commonwealth had not proven beyond a reasonable doubt that petitioner was driving his mother's vehicle at the time of the accident.6 He criticized the Commonwealth for not attempting to lift fingerprints from inside the vehicle. He argued that the failure of the Commonwealth to impound the vehicle made it impossible for his investigator, who was not hired until after petitioner was arrested over a year after the accident, to lift fingerprints and otherwise secure evidence from the vehicle which could show that petitioner had not been the driver at the time of the accident. Notwithstanding this approach, post-conviction counsel, citing the civil case of Pla v. Perrotti, 718 A.2d 321 (Pa. Super. 1998), maintains that trial counsel was ineffective for failing to seek a jury instruction regarding the failure to properly preserve the vehicle. In Pla, Pla owned a warehouse that caught fire. Her experts removed and retained a metering cabinet and some other items involving the building's electrical wiring which they deemed relevant, leaving the 6. Interestingly, in the post-conviction proceeding defense counsel testified that he did not call petitioner's girlfriend, Christine Unger, as a witness for the defense because (1) he was aware that she had told the police that petitioner was the driver at the time of the accident and (2) she had never told him that petitioner was not the driver at the time of the accident. Defense counsel's strategy at trial was to try to raise doubt as to the Commonwealth meeting its burden to prove beyond a reasonable doubt that petitioner had been driving the vehicle at the time of the accident. -5- 97-0576 CRIMINAL TERM remaining electrical equipment in place. Pia's tenants then cleaned the premises. Pla sued an electrical contractor that had installed electrical equipment in the premises claiming that it had inadequately tightened the wires inside the metering cabinet which caused the fire. The jury found in favor of the contractor. On appeal, Pla claimed that the trial court erred in charging the jury that it could draw, depending on the facts that it found, a spoliation inference against her for failure to preserve all of the electrical equipment in the warehouse. The charge stated: [i]f you find that there were things in [the area where the fire started] which were under the plaintiff's control and that the plaintiffs disposed of these materials before the defendant had an opportunity to inspect them and that these materials were relevant, that is should have been recognized as bearing on the issue of what did or did not cause this fire, then you may, if you wish, infer that if these materials had been retained and had been able to have been inspected by the defendants, that evidence from those materials would have been unfavorable to the party who made them available. The Superior Court noted that the Supreme Court in Schroeder v. Commonwealth, Department of Transportation, Navistar International Transportation Corp., 551 Pa. 243 (1998), adopted a spoliation test in which the relevant inquiries are (1) the degree of fault of the party who altered and destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party's right to deter future similar conduct. The Superior Court concluded that (1) the fact that Pla was able to preserve the items her expert deemed relevant established that she possessed the authority over the fire scene to obtain other materials had she chosen to do so; (2) the -6- 97-0576 CRIMINAL TERM electrical company was unable to rebut Pia's theory with evidence of alternative causes because it had no access to the other electrical equipment in the area of the fire; (3) the electrical company was not as severely harmed by the absence of the equipment as in those cases in which the allegedly faulty product in a manufacturing defect case disappears and defendants are deprived of the opportunity to examine the item for possible misuse because it was able to examine the object posited by Pia as the source of the blaze and to present a defense to the accusation of negligence; and (4) Pia bore some but not overwhelming responsibility for the lost equipment, and the electrical company while prejudiced was not prejudiced to the extent of being unable to present a viable defense. The Superior Court concluded: [VV]e decline to hold, as [Pia] suggests, that a plaintiff must in every case preserve the entire fire scene. Rather, we reach our decision that the spoliation charge was appropriate here in light of the evidence that 1) the equipment at issue was located in the area identified as the point of origin for the fire; 2) the fire was electrical in origin; and 3) the equipment was electrical in nature and in close proximity to the metering cabinet identified by Appellant as the source of the blaze. In Commonwealth v. Cristina, 481 Pa. 44 (1978), a murder case in which the Supreme Court of Pennsylvania affirmed the judgment of sentence, Chief Justice Eagen in a plurality opinion stated: In the instant case, the defense learned on the first day of trial, during cross-examination of a homicide detective, that blood, flesh and hair tests had been conducted and the results had been sent to the Homicide Division. When the Commonwealth rested without producing the test results, the defense neither requested the results nor attempted to subpoena the laboratory technician who conducted the tests. There is nothing in the record to show that the test results were not available -7- 97-0576 CRIMINAL TERM to defense counsel by subpoena or otherwise. Compare Commonwealth v. Jones, 455 Pa. 488, 317 A.2d 233 (1974). Thus, the trial judge properly refused to charge that failure to produce the test results warranted an inference unfavorable to the Commonwealth since the defendant was aware the evidence existed and failed to request it. See Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976) (opinion announcing the judgment); Commonwealth v. Jones, 455 Pa. 488, 317 A.2d 233 (1974); Commonwealth v. Moore, 453 Pa. 302 (1973); Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973). (Emphasis added.) In the case sub judice, the testimony at the post-conviction hearing revealed that petitioner's mother's car was towed from the accident scene to a salvage yard were it came under the control of the mother and her insurance carrier. The car was not under the control of the police investigators. There is no evidence to conclude that petitioner did not have access to the vehicle at all times. The Commonwealth did nothing whereby it could be subject to the adverse inference such as was charged in the civil case of Pia v. Perrotti, supra. Therefore, defense counsel was not ineffective for not seeking such a charge. As to petitioner's argument that defense counsel was ineffective for failing to file a direct appeal from his judgment of sentence, defense counsel testified at the post- conviction hearing that he discussed a direct appeal with petitioner but that petitioner did not ask him to file such an appeal. Petitioner testified at the hearing that he discussed his appellate rights with defense counsel and he acknowledged that he did not ask defense counsel to file an appeal. Therefore, there was no ineffective assistance of counsel that would warrant the grant of post-conviction relief. -8- 97-0576 CRIMINAL TERM For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this '~l~'l'"day of March, 2000, the within petition for post-conviction relief, IS DENIED. By the .Court', Edgar B. ayey,-. Jaime Keating, Esquire For the Commonwealth Timothy L. Clawges, Esquire For Petitioner :saa -9-