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HomeMy WebLinkAbout97-0472/0438 criminalCOMMONWEALTH V~ RAUL A. FERRER · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : · : : · 97-0472 CRIMINAL TERM ·97-0438 CRIMINAL TERM · IN RE' PETITION FOR POST CONVICTION RELIEE BEFORE GUIDO, OPINION AND ORDER OF COURT AND NOW, this day of DECEMBER, 1999, Petitioner's request for leave to file a direct appeal to the Superior Court from our Order of Sentence dated March 24, 1998, is GRANTED. The remaining prayers for relief contained in his Post Conviction Relief Act Petition, and all supplements thereto, are DENIED. By Edward E. Guido, J. William I. Gabig, Esquire For the Commonwealth Michael A. Scherer, Esquire For the Plaintiff :sld COMMONWEALTH Vo RAUL A. FERRER · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · 97-0472 CRIMINAL TERM · 97-0438 CRIMINAL TERM IN RE' PETITION FOR POST CONVICTION RELIEF BEFORE GUIDO, J. ©P~ION AND ORDER OF COURT Raul A. Ferrer (hereinafter "Petitioner") was convicted by a jury of various counts i On of robbery, aggravated assault and simple assault at the above terms and numbers. March 24, 1998, he was sentenced to an aggregate term of incarceration in a state correctional institution of not less than thirteen (13) nor more than forty-two (42) years. On that same date the public defender was appointed to represent Petitioner in connection 2 with any postsentence motions or appeals he wished to pursue. On April 2, 1998, the public defender filed a timely postsentence motion in which he attacked the sufficiency of the evidence presented by the Commonwealth at trial. Consequently, he requested that we enter a judgment of acquittal. The parties briefed their respective positions and argument was held in chambers. On July 22, 1998, we denied the postsentence motion without opinion. ~ Although the robberies occurred on different dates at different establishments the cases were consolidated for trial. 2 The public defender had represented the Petitioner during the pretrial stages of this matter. However, Petitioner retained private counsel to represent him at trial and sentencing. 97-0472 CRIMINAL - 97-0438 CRIMINAL No direct appeal was filed on Petitioner's behalf.3 However, on February 2, 1999, the public dcfender filed a petition pursuant to the Post Conviction Relief Act (42 Pa. C.S.A. § 9541, et seq.). Subsequently, the public defender filed an amended petition for post conviction relief in which he indicated that his own ineffectiveness might be an issue. Therefore, he requested that we appoint new counsel, which we did. A hearing on the post conviction relief petitions was scheduled for March 5, 1999. At the hearing new counsel requested the opportunity to supplement the petitions. We granted the request and a new evidentiary hearing was scheduled for May 19, 1999. The hearing was held as scheduled. However, because of the unavailability of a witness, it had to be continued to a later date. At the conclusion of the hearings the parties were given the opportunity to file briefs. Petitioner was advised that any matter not briefed would be deemed to have been waived.4 The issues raised by the Petitioner are as follows' 1) Counsel was ineffective in failing to request a pretrial lineup. 2) Counsel was ineffective in failing to file a motion to suppress the identification of Petitioner at the Harrisburg Police Station. 3) Counsel was ineffective for failing to request separate trials in connection with each robbery. 4) Counsel was ineffective in failing to perfect a direct appeal. We will address each of the issues in the opinion that follows. 3 For some unexplained reason the public defender never received notice of our order denying his postsentence motion. 4 See Local Rule 210-7. See also Transcript of May 25, 1999, proceeding, p. 16. 9'7-0472' CRIMINAL - 97-0438 CRIMINAL FACTUAL BACKGROUND A Pizza Hut restaurant is located in East Pennsboro Township, Cumberland County, Pennsylvania just across the Harvey Taylor Bridge from Harrisburg.s At about 7:55 p.m. on January 22, 1997, it was robbed by two Hispanic men.6 They were speaking both English and Spanish.? They demanded that the occupants lie on the floor as they a One of the robbers was carrying a shotgun.9 Two directed an employee to get money. ~0 One of the robbers of the victims were savagely beaten on the head with the shotgun. wore a dark mask ~which partially covered his face.~l A Kentucky Fried Chicken restaurant is located in Lemoyne, Cumberland County Pennsylvania just across the South Bridge from Harrisburg.12 At about 7'55 p.m. on January 25, 1997, it was robbed by two Hispanic men.~3 They were speaking both English and Spanish.TM They demanded that the occupants lie on the floor as they directed an employee to get money. ~5 One of the robbers was carrying a shotgun. 16 Two 17 One of the robbers of the victims were savagely beaten on the head with the shotgun. wore a dark mask which partially covered his face.~8 Trial Transcript, p. 28. Trial Transcript, pp. 24, 37. Trial Transcript, p. 58. Trial Transcript, p. 46. Trial Transcript, p. 46. ~0 Trial Transcript, pp. 46, 61. ~1 Trial Transcript, p. 49. ~2 Trial Transcript, p. 68. The South Bridge is located just south of the Harvey Taylor Bridge. ~3 Trial Transcript, pp. 66, 67, 82. 14 Trial Transcript, pp. 75, 85. ~5 Trial Transcript, p. 67. 16 Trial Transcript, p. 67. x7 Trial Transcript, pp. 67, 81. x8 Trial Transcript, p. 90. 97-0472 CRIMINAL - 97-0438 CRIMINAL The police were on the lookout for a light blue 80's Ford Tempo type car that had been used in the Pizza Hut robbery.~9 On January 27, 1997, the Harrisburg Police spotted 2o A registration check showed that the a parked vehicle that matched the description. license plate did not belong on the vehicle.2~ They watched the vehicle and eventually saw the Petitioner trying to enter it with a set of keys in his possession? The vehicle was not registered to the Petitioner and the police were unable to contact the owner.23 The vehicle was taken to City Hall and processed.24 Numerous items of physical evidence were found in the vehicle, including a mask similar to the type used in the robberies, a hack saw and a gun cleaning kit.2s In addition, at some point the police retrieved another mask from the Petitioner which was similar to the type used in the robberies.26 Eventually search warrants were obtained for various residences occupied by Petitioner. At one residence the police seized a sawed off shotgun as well as the piece of the barrel that had been removed.27 The shotgun was identified by various witnesses as 2a Another mask was also found.29 In addition, similar to the one used in the robberies. an oversized shirt with the word BOSS appearing on the front in six inch letters was recovered.3° ~9 Trial Transcript, p. 39. 20 Trial Transcript, p. 94. 2~ Trial Transcript, pp. 94, 95. 22 Trial Transcript, pp. 94, 112. 23 Trial Transcript, p. 95. The police eventually determined that the car belonged to a friend of the Defendant. 24 Trial Transcript, p. 95. 2~ Trial Transcript, pp. 95-98. 26 Trial Transcript, p. 98. 27 Trial Transcript, p. 102, Commonwealth Exhibits 6 and 6a. 28 Trial Transcript, pp. 48, 49, 62, 63, 67. The shotgun used in the first robbery was not sawed off. The shotgun used in the second robbery was sawed off. 29 Commonwealth Exhibit 23. 30 Trial testimony, pp. 128-130. 97-0472 CRIMINAL - 97-0438 CRIMINAL At trial Petitioner was positively identified as a participant in each of the robberies.3~ In addition, the Commonwealth called Barbara Miller as a witness. She testified that on the evening of the Pizza Hut robbery she was at one of the residences 32 Petitioner and several other people, including the occupied by Petitioner in Harrisburg. owner of the Ford Tempo were present.33 Petitioner and another man borrowed the Ford Tempo, went out and came back a short time later with money.34 Petitioner showed off his shotgun and bragged about how he liked to beat people with it.3s She testified that the approximate time of those events was between 8:00 p.m. and 9:00 p.m.36 Finally, a witness from Kentucky Fried Chicken who had positively identified Petitioner as one of the robbers, also testified that at the time of the robbery he was wearing an oversized shirt with the letters BOSS on the front.37 DISCUSSION Petitioner's claims for relief revolve around the alleged ineffectiveness of his trial counsel. In order for him to be eligible for relief under the PCRA he must plead and prove by a preponderance of the evidence that his conviction resulted from: 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. 42 Pa. C.S.A. {} 9543(a)2(ii). The Pennsylvania Supreme Court has recently interpreted this section as requiting 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 3~ Trial testimony, pp. 52, 87, 88. 32 Trial testimony, p. 114, 115. 33 Trial testimony, p. 115. 34 Trial testimony, p. 116. 35 Trial testimony, p. 118. 36 Trial testimony, pp. 115, 116. 37 Trial testimony, pp. 89, 183. 97-0472 CRIMINAL - 97-0438 CRIMINAL and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. 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 reliable adjudication of guilt or innocence could have taken place. Com. v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). The threshold question we must address is whether the underlying claims have arguable merit since counsel cannot be considered to be ineffective for failing to assert a meritless claim. Commonwealth v. Lebo, 713 A.2d 1158, 1163 (Pa. Super. 1998) appeal denied Pa. ,737 A.2d 741 (1999). If the threshold is met, we must then detemfine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client's interest. Id. If we determine both that the issue is of arguable merit and that counsel had no reasonable basis for the course chosen, then the accused must show that counsel's ineffectiveness created a reasonable probability that the outcome would have been different. Com. v. Kimball, supra. In the instant case, for the reasons hereinafter stated, we are satisfied that none of the underlying issues are of arguable merit. Based upon the law quoted above, that should end our inquiry. It does on all issues except the claim dealing with counsel's failure to perfect a direct appeal. Our Supreme Court has held that where there is an unjustified failure to file a requested direct appeal, there is no need for the PCRA petitioner to establish innocence or demonstrate the merits of the issues which would have been raised on appeal. ~Com. v. Lantzy, 736 A.2d 564 (Pa. 1999). 97-0472 CRIMINAL - 97-0438 CRIMINAL Failure To Request A Pretrial Line Up. The Superior Court discussed a defendant's fight to a line-up and counsel's alleged ineffectiveness for failing to demand a line-up in Commonwealth v. Davis, 439 A.2d 195,293 Pa. Super. 447 (1981). The Court summarized the law as follows' To begin with, an accused does not have a constitutional right to a line-up and the suggestiveness of a courtroom identification is only one factor to be considered in determining the reliability of the identification evidence. Moreover, this jurisdiction has "declined to accept a per se rule that a pre- trial, pre-hearing line up is mandatory in all cases." Afortiori, counsel's failure to request a lineup or failure to object to identification testimony is not per se ineffective assistance. Because a review of the totality of the circumstances revealed that the identification testimony was reliable, and further revealed that even if the preliminary hearing was suggestive, the in-court identification had an independent basis, a lineup or objection would have been fruitless. (Citations omitted). 439 A.2d at 200. We are satisfied that under all of the circumstances present in the instant case, the in-court identifications of the Petitioner were reliable. The witness from the Pizza Hut robbery who identified the Petitioner as a participant was positive and unequivocal in his identification. While the Petitioner wore a mask, it covered only his mouth, nose and lips.38 Petitioner hit the witness with the shotgun several times on the head before he got down.39 Petitioner then ordered him to get up and get the money from the register.4° He 41 He remembered his eyes as being "cold" and having a got a good look at his face. 42 The identification was "unique color", set fairly close together on his face. corroborated by a substantial amount of physical evidence seized from various residences 38 Trial testimony, p. 49. 39 Trial testimony, pp. 45, 46. 40 Trial testimony, p. 46. 4~ Trial testimony, p. 58. 42 Trial testimony, p. 58. 97-0472 CRIMINAL - 97-0438 CRIMINAL of Petitioner, as well as the testimony of Barbara Miller. Finally the witness also positively identified the Petitioner at the Harrisburg Police Station on January 27, 1999, only four days after the Pizza Hut robbery.43 Likewise, the identification testimony of the witness from the Kentucky Fried · 44 Chicken robbery was positive and uneqmvocal. The Petitioner was not wearing a mask at that robbery.4s She saw him two days later talking on the phone outside the police station in Harrisburg and recognized him immediately.46 In fact, when she saw him she began shaking and became visibly upset.47 The Petitioner's face "haunted her for days.''4s In addition she described to the police the BOSS shirt that Petitioner was wearing at the time of the robbery,49and positively identified it at the time of trial.5° In view of the above, we are satisfied that a line-up would have been fruitless. See also ~ommonwealth v. Keno.n.., 333 Pa. Super. 366, 482 A.2d 611, (1984). Failure To Suppress Identification At Harrisburg Police Station. Defendant argues that his counsel was ineffective for not filing a motion to suppress the identification at the Harrisburg Police Station on January 27, 1999. For the reasons hereinafter set forth, we are convinced that any such motion would have been without merit. Therefore, counsel was not ineffective in failing to file it. At the outset, it should be noted that the Petitioner was not in custody at the time 43 Trial testimony, p. 59. 44 Trial testimony, p. 87, 88. 45 Trial testimony, pp. 86, 87, 91. 46 Trial testimony, p. 86. 47 PCRA proceeding of May 19, 1999, p. 50. 48 Trial testimony, p. 92. 49 Trial testimony, p. 183. 50 Trial testimony, p. 89. · · 97-0472 CRIMINAL - 97-0438 CRIMINAL of the identification. While he had been taken to the Harrisburg .Police Station for investigative purposes, as soon as the police determined that the vehicle was not stolen, he was free to leave.5~ However, Petitioner was advised that he was a suspect in the armed robberies. He was asked if he would submit to a one on one confrontation with the victims, which he voluntarily agreed to do.52 He was fully aware that he did not have to submit to such a confrontation and that he was free to go.s3 In the meantime, witnesses from each of the armed robberies had been requested to accompany Detective Landis of the Lemoyne Police to the Harrisburg Station to view some physical evidence.54 As they pulled up to the Harrisburg Police Station the Petitioner was standing outside smoking a cigarette.55 Upon seeing the Petitioner the witness from the Kentucky Fried Chicken robbery became visibly upset and shaken,s6 The witness from the Pizza Hut robbery commented that the Petitioner looked familiar, but that he was not sure.57 Both witnesses positively identified the Petitioner as one of the robbers once inside the police station,s8 Defendant contends that the identification at the Harrisburg Police Station should 5~ Shortly after arrival the owner appeared at the station with the title to the vehicle. At that point the Petitioner actually wandered in and out of the station as he pleased. See PCRA proceeding of May 19, 1999, pp. 33-36. 52 PCRA proceeding of May 19, 1999, pp. 36-37. 53 PCRA proceeding of May 19, 1999, Commonwealth Exhibit 1. 54 PCRA proceeding of May 19, 1999, pp. 50, 52. 55 PCRA proceeding of May 19, 1999, p. 49. He was not in custody. 56 Nobody had pointed the Petitioner out to the witness. She saw him standing there and her reaction was immediate. See PCRA proceeding of May 19, 1999, pp. 49, 50. s7 The tentative identification took place while the witness was seated in the back seat of the police cruiser. PCRA proceeding of May 19, 1999, pp. 49, 50. s8 PCRA proceeding of May 19, 1999, p. 53. The Pizza Hut witness was equivocal when he viewed Petitioner at a distance from the back of the police car. However, he was positive when he saw him in the police station. This is consistent with trial testimony that it was Petitioner's cold and unique colored eyes that made him so identifiable. See trial testimony, p. 58. 97-047~ CRIMINAL - 97-0438 CRIMINAL have been suppressed because it was unduly suggestive. "It is the likelihood misidentification which violates Petitioner's right to due process, and it is tl~i:, which is the basis of the exclusion of evidence." Commonwealth v. R.a. asom_c.e, 485 Pa. 490 at 495, 402 A.2d 1379, at 1382 (1979). "Suggestiveness in the identification process is but one factor to be considered in determining the admissibility of such evidence and will not warrant exclusion absent other factors." Commonwealth v. McElrath, 405 Pa. Super. · 431,592 A.2d 740, at 742 (1991). Other factors to be considered include the opportunity of the witness to view the perpetrator at the time of the crime, the accuracy of any prior description and the level of certainty demonstrated at the confrontation. Commonwealth v. Meachum, 711 A.2d 1029, appeal denied, 556 Pa. 689 (1998). Even if the identification process was suggestive, the identification will not be suppressed if, under the totality of the circumstances, it was reliable. /d. In the instant case, we do not feel that the identification process at the Harrisburg Police Station was suggestive. However, even if it were, under the totality of the circumstances we are convinced that it was reliable. Therefore, a pretrial motion to suppress that identification would have been meritless. Failure To Request Separate Trials On Each Robbery. Petitioner next argues that his trial counsel was ineffective for failing to request that he be given separate jury trials on each robbery count. Since both charges were properly joined for trial, this issue is also without merit. Joinder of separate charges for trial is governed by Pa. Rule of Criminal Procedure 1127 which provides in relevant part as follows' 10 97-0472 CPdMINAL - 97-0438 CRIMINAL (1) Offenses charged in separate indictments or informations may be tried together if: (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; Evidence of other crimes may be introduced to prove" a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others...". Oommonwealth v. Morris, 493 Pa. 164, at 175,425 A.2d 715(1981). The case of Commonwealth v. Morris, supra, is strikingly similar to the case at bar. In Morris the Supreme Court approved joinder of two separate robbery charges where the offenses both occurred within five (5) days of each other in elevators located in adjoining buildings at the same time of day. The victims were the same (mothers with small children) and the demand for money was similar. In the instant case, we have robberies of fast food restaurants located fight across the river from Harrisburg occurring two days apart. The robberies occurred at the exact time of day. Both involved two Hispanic men speaking both English and Spanish. One of the men carded a shotgun and savagely beat some of the victims about the head. As the Supreme Court noted in Commonwealth v. Morris, supra, "It is difficult to conceive of any situation where the propriety ofjoinder could be clearer." 425 A.2d at 721. See also !~ommonwealth v, ~, 302 Pa. Super. 528,449 A.2d 42 (1982). Failure To File A Direct Appeal. On the day of sentencing we appointed the public defender to represent Petitioner in connection with the filing of any postsentence motions or appeal. On April 2, 1998, 11 '9'7-047~ CRIMINAL - 97-0438 CRIMINAL counsel filed a timely postsentence motion which attacked the sufficiency of the evidence presented at thai. We entered an order denying the motion. The order was not accompanied by an opinion.- There is no question that the Petitioner had requested the public defender to file a direct appeal on his behalf. There is also no question that the public defender intended to file a direct appeal. While the public defender may not have received notice of our order denying the postsentence motion, he should have realized that the motion would have been denied by operation of law 120 days after it was filed.® However, he took no action for ten (10) months. Therefore, we find that counsel was ineffective in failing to file a direct appeal.6~ Consequently, we are compelled to grant Petitioner's request for leave to file a direct appeal to the Superior Court from the order of sentence dated March 24, 1998. 59 The facts presented at trial as set forth earlier in thisJopinion were clearly "sufficient to enable the fact finder to conclude that all of the elements of the offenses were established beyond a reasonable doubt." Commonwealth v. Cox, 556 Pa. 386, 728 A.2d 923, at 929 (1999). Therefore, we were convinced that this l~0Ostsentence motion was meritless. Pa. Rule of Criminal Procedure 1410(B)(3)(a). 62 Pursuant to Commonwealth v, Lantzy, supra, it is irrelevant that any issue which could be raised on appeal is meritless. 12 97-0472 CRIMINAL - 97-0438 CRIMINAL ORDER OF COURT AND NOW, this 15TM day of DECEMBER, 1999, Petitioner's request for leave to file a direct appeal to the Superior Court from our Order of Sentence dated March 24, 1998, is GRANTED. The remaining prayers for relief contained in his Post Conviction Relief Act Petition, and all supplements thereto, are DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. William I. Gabig, Esquire For the Commonwealth Michael A. Scherer, Esquire For the Plaintiff :sld 13