HomeMy WebLinkAbout95-1649 CriminalCOMMONWEALTH
Vo
JAMES ANDREW CARNEY
OTN: E007447-6
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:No. 95-1649 CRIMINAL TERM
:
: CHARGES: (A) ROBBERY
: (B) RECEIVING STOLEN
: PROPERTY
Jaime M. Keating, Esq.
Assistant District Attorney
For the Commonwealth
IN RE: POST CONVICTION RELIEF ACT PETITION
BEFORE OLER, J.
ORDER OF COURT
II
AND NOW, this i(?'r~day of February, 1999, upon consideration of Defendant's
petition for collateral relief under the Post Conviction Relief Act, following a hearing, and
for the reasons stated in the accompanying opinion, the petition is denied.
BY THE COURT,
J~/~esley Oler, ~,,J. ""~ L-, ~
Michael A. Scherer, Esq.
Court-appointed Counsel
For the Defendant/Petitioner
COMMONWEALTH
Vo
JAMES ANDREW CARNEY
OTN: E007447-6
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: No. 95-1649 CRIMINAL TERM
:
: CHARGES: (A) ROBBERY
: (B) RECEIVING STOLEN
: PROPERTY
IN RE: POST CONVICTION RELIEF ACT PETITION
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., February 16, 1999.
Petitioner was found guilty following a jury trial in 1996 of robbery and theft by
receiving stolen property. At issue at this time is whether Petitioner's Post Conviction Relief
Act petition should be granted. I
The basis for the relief sought is alleged ineffectiveness of counsel. Petitioner
contends that his former counsel was ineffective in three respects:
The Petitioner's first allegation of error is that the entire
trial was conducted while the Petitioner was in handcuffs in
front of the jury.2
Petitioner's second concern is that trial counsel failed to
develop as an issue in the case at trial the differing times various
witnesses offered regarding the unfolding of the events on May
8, 1995.3
Finally, Petitioner believes trial counsel should have
pursued on appeal the suppression issues regarding his
identification by the various witnesses.4
Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. §§ 9541 etseq.
Brief of Andrew Carney, at 3.
3Id., at5.
4Id., at6.
A hearing on the petition was held on Friday, November 6, 1998. Based upon the
evidence presented at the hearing, the petition will be denied.
STATEMENT OF FACTS; PROCEDURAL HISTORY
Defendant was formally arraigned on the charges subjudice on November 14, 1995.
Following his arraignment, he filed an omnibus pretrial motion to suppress on December 14,
1995, based upon an allegedly unduly suggestive photo array procedure,s After a hearing,
the motion to suppress was denied by the Honorable Kevin A. Hess on January 3, 1996.6
The events which led to Petitioner's conviction have been well summarized in the
Commonwealth's brief on Defendant's Post Conviction Relief Act petition as follows:
On May 8, 1995, Harris TV and Appliance store, located
at 3540 Gettysburg Road, Camp Hill, Cumberland County, was
robbed (Notes of Testimony [Trial] (hereinafter "N.T."), 24, 27,
and 34). The store manager, Kenneth Diehl, testified that the
defendant first came in the store a little before 3:00 p.m., (N.T.
28), let~ and then returned a short while later. (N.T. 30) During
the initial time the defendant was in the store, Diehl stood about
three feet from the defendant as they walked. (N.T. 29). Diehl
testified that he remembered the defendant because he was
dressed "inappropriately" in that while it was May, the
defendant was wearing "a blue sweatshirt with a hood on and a
very heavy coat. For that time of year he seemed to be
5 P.C.R.A. Hearing, Commonwealth's Exhibit 1.
6 P.C.R.A. Hearing, Commonwealth's Exhibit 2.
The order by Judge Hess denying Defendant's motion to suppress read as follows:
AND NOW, this 3rd day of January, 1996, at 11:55 a.m.,
based on the court's finding that there was nothing suggestive
about the photo array containing similar looking black men in
the opinion of the court and that there either was nothing to taint
the proposed identification or in the alternative a sufficient basis
independent of any alleged taint for the in-court identification of
the defendant, the omnibus pretrial motion of the defendant is
denied.
2
"overdressed." (N.T. 31, 32). After looking around the store
the defendant asked for and received a credit application (N.T.
32). On the application the defendant wrote "you are being
robbed. I have a gun," and then handed the application back to
Diehl. (N.T. 34, 35). The defendant then pulled out a rifle from
under his coat and forced Diehl and his service technician to
load equipment into a truck. (N.T. 35, 36).
On May 22, 1995, Bill Galbraith, an employee at
Billow's TV and Appliance store on Derry Street in Harrisburg,
alerted the store owner to contact the police when he observed
the defendant in their store. (N.T. 141-42). Mr. Galbraith
testified that the defendant was wearing a "hooded sweatshirt
and a pair of gloves," when he entered the store despite the fact
that it was a warm day. (N.T. 142). Mr. Galbraith was alarmed
by the defendant's presence because he matched the description
of the suspect his store was given by Harris TV as the individual
who had robbed the store on May 8, 1995. (N.T. 142-43).
The [t]estimony of Sergeant Michael Farling with the
Swatara Township Police established how the defendant was
apprehended following the [incident at] Billow's TV and
Appliance. (N.T. 148-149). Sergeant Farling was operating a
K-9 Unit when he received a dispatch to be on the lookout for
a vehicle that had been reported by Billow's store as being
connected with suspicious activity. (N.T. 150-51). The officer
observed a van matching the tag number and a drive[r] fitting
the description provided by the dispatch. (N.T. 152). Sergeant
Farling pursued the vehicle until it stopped in a driveway at
which time the defendant turned around, looked at Sergeant
Farling and rapidly accelerated away. (N.T. 151-52). The van
became lodged between a building and some wood, and the
defendant fled on foot. (N.T. 153).
At this point Sergeant Farling sent the police dog after
the defendant, and the dog subsequently latched onto the
defendant's arm. (N.T. 153). The dog released the defendant
who then fled on foot. (N.T. 153). Sergeant Farling testified
that shortly after both the dog and the defendant rounded a
corner he heard a gun shot. (N.T. 154).[7] The defendant was
subsequently taken into custody after being found at a relative's
home. (N.T. 155)?
This recitation may be supplemented by the fact that the robber used a stolen pickup truck
7 The account at trial by Sergeant Michael Farling of the Swatara Township Police
Department (Dauphin County) of the chase of Defendant following the incident at Billow's
is an instructive study in the relationship between a police officer and his K-9 unit:
... At that point the operator, Mr. Carney, bailed out of
the van and took off on foot. I gave my appropriate
announcements for my partner, police service dog, and sent my
dog after him for the apprehension.
They ran around the front of the cycle shop. Mr. Carney
had a jacket he was carrying, which he fed into the dog's mouth
to avoid himself from getting bit. The dog made the appropriate
grip as he's supposed to and grabbed the jacket, and Mr. Carney
continued to flee on foot.
When I got up to my dog, I told him to drop the jacket
and go after the suspect again. By this time the suspect had
rounded the comer at Harrisburg Street, and had just got out of
my sight. My partner was, again, still in pursuit or in pursuit
again, and as my partner rounded the comer is when I heard at
least one gunshot being fired.
From there my heart sank. I rounded the comer, and my
partner was there waiting for me. At that point my foot pursuit
of the suspect at that point had been terminated, and there was
multiple other units in the area attempting to pick up the search
for the suspect at that time ....
Trial N.T. 153-54.
The police dog was not injured. See Trial N.T. 150.
s In re: Defendant's Petition for P.C.R.A. Relief--Brief of the Commonwealth in
Opposition, at 1-3.
4
in the commission of the crime at the Harris store.9
The transcript of Defendant's trial, which was presided over by the Honorable Harold
E. Sheely, former President Judge, contains no indication that Defendant was in handcuffs
in the jury's presence. He was dressed in civilian clothing.~°
During the trial, Defendant was identified by the three Harris employees present at the
time of the robbery as the perpetrator. Il The store manager, Kenneth Diehl, testified that on
Monday, May 8, 1995, Defendant came into the store between 2:45 and 2:55 p.m., inquired
about merchandise for about five minutes, and left.~2 He returned about five minutes later,
made further inquiries, and then committed the robbery, according to Mr. Diehl's
testimony. ~3 The manager further testified that he had been able to call the police at about
3:16 p.m., and that his total time in Defendant's presence had been about twenty or twenty-
five minutes. 14
The store secretary, Karen .Leese, testified that at about 3:00 p.m. on the day in
question she saw Defendant enter the store (evidently his second entrance), helped the
manager assist him, went to the bathroom, and returned to discover a robbery in progress. 15
She estimated that she had been in Defendant's presence between fifteen and twenty
9 Trial N.T. 10-17, 43-44, 166.
~o P.C.R.A. Hearing N.T. 14.
~ Trial N.T. 45, 79, 130-31..
~2 Trial N.T. 27-30.
~3 Trial N.T. 30-41.
14 Trial N.T. 41.
~5 Trial N.T. 72-76.
5
minutes,~6 and believed that the police had been called at about 3:16 p.m.17
A service technician at the store, James Steinmeier, testified that at about 3:00 p.m.
on the day in question he was in the service room of the store; he stated that the manager
appeared and asked him to come out to the customer area because of the manager's suspicion
that Defendant might be about to commit a robbery,t8 The crime which the manager
anticipated ensued shortly after the technician's entry into the customer area, according to
his testimony. IV Mr. Steinmeier did not testify as to the amount of time which he felt elapsed
during the event.
Patrolman Samuel W. Morgan of the Lower Allen Township Police Department
teStified that he received a radio dispatch at 3:16 p.m. on the day in question concerning the
armed robbery? He stated that he arrived at the scene at 3:18 p.m?
Defendant did not testify during the trial.22 The defense presented the testimony of
Defendant's grandmother, Doris J. Ganey, who stated that on the day in question Defendant
had attended the funeral of her mother-in-law? The funeral was held in Steelton (Dauphin
County), according to her testimony, and began around 11:00 or 11:30 a.m.TM
16 Trial N.T. 77.
~7 Trial N.T. 76.
~8 Trial N.T. 120-22.
~9 Trial N.T. 122-29.
20 Trial N.T. 100-01.
2~ Trial N.T. 101.
22 See Trial N.T. 185-86.
23 Trial N.T. 186-188.
24 Trial N.T. 188. Dauphin and Cumberland are adjacent counties.
6
Ms. Ganey testified that the funeral lasted between an hour and an hour and a half,25
that it concluded about 12:00 noon or 12:30 p.m.,26 and that it was followed by an interment
service at a cemetery about ten or more minutes away from the church, which she also
attended? The burial service lasted about fifteen minutes, according to her testimony?
Ms. Ganey testified that she rode from the cemetery back to the church, where food
was being served? At this time, she stated, she saw Defendant come into the church for the
luncheon.3° She did not know, however, how long he stayed at the luncheon.3~
A second witness presented on behalf of the defense was Clayton Thomas Johnson.32
Mr. Johnson testified that on the day in question he had been driving a pickup truck with a
license number similar to that reported to have been used in the Harris robbery, in Lower
Allen Township.33 With him was a male of the same race34 and approximate generation35 as
25 Trial N.T. 189.
26 Trial N.T. 190.
27 Trial N.T. 190.
28 Trial N.T. 190-91.
29 Trial N.T. 190-91.
30 Trial N.T. 191-92. Ms. Ganey testified that she was not certain whether Defendant
had gone to the graveside service. N.T. 190.
31 Trial N.T. 196.
32 Trial N.T. 198.
33 Trial N.T. 198-202. The license number of the pickup truck used in the robbery was
22197CE. Trial N.T. 106. The license number of the pickup truck being driven by Mr.
Clayton was apparently Y22597 or YA22597. Trial N.T. 201-02, 206.
34 Trial N.T. 60, 203-04.
35 Trial N.T. 60 (late twenties); Trial N.T. 204 (thirty-five or forty).
7
the reported robber.36 They were stopped by police and detained for about ten minutes before
it was determined that they were not connected with the robbery, according to Mr. Clayton's
testimony.37
Following the evidentiary phase of the trial, counsel for the Commonwealth and the
Defendant made their closing arguments. Defendant's counsel argued vigorously that the
eyewitnesses had made misidentifications.38 However, as noted previously, Defendant was
found guilty by the jury of robbery and theft by receiving stolen property (the pickup truck).
Defendant was sentenced on February 27, 1996, to pay the costs of prosecution and
restitution in the amount of $1,200, and to undergo imprisonment in a state correctional
institution for not less than five years nor more than fifteen years, on the robbery charge, and
to pay the costs of prosecution on the receiving charge.39 A post-sentence motion filed on
behalf of Defendant was denied by operation of law pursuant to Pennsylvania Rule of
Criminal Procedure 1410(B)on August 1, 1996.
A direct appeal, based upon the propriety of the admission of evidence concerning the
incident at Billow's TV and Appliance Store and upon matters relating to Defendant's
36 Whether Mr. Clayton may have resembled the perpetrator as described by the
witnesses is not clear from the trial transcript. An inference may be drawn from the P.C.R.A.
hearing, however, that he did. See P.C.R.A. Hearing N.T. 35.
37 Trial N.T. 205, 207. The defense purpose for presenting this testimony was to
suggest (1) that the descriptions of the perpetrator which the police had received from
witnesses were not definitive and (2) that one of the parties stopped may have been the
perpetrator. P.C.R.A. Hearing N.T. 35.
38 Defendant's Closing Argument N.T. 3-9.
39 Order of Court, February 27, 1996.
apprehension and arrest in Dauphin County,4° was unsuccessful? The Pennsylvania
Supreme Court declined to hear an appeal from the Superior Court's decision on July 29,
1998.42
Defendant filed the petition subjudice for collateral relief on August 21, 1998. At the
hearing on the petition, Defendant testified that he had been in handcuffs before the jury
throughout his entire trial, that he had requested his counsel to ask the court for their
removal, and that his counsel had refused to do so.43
Defendant further testified that his counsel had failed to exploit inconsistencies in the
accounts of witnesses as to the times various events occurred. Specifically, Defendant
expressed his complaint as follows:
I mean, basically, the Commonwealth's case was based
on the fact that I came into the store. These witnesses had
adequate enough time, with adequate lighting to view me; and
that they know it's me because they spend ten or more minutes
with me, close to twenty minutes apiece; and that, you know,
they're for sure it's me. So, after the incident happened, they
say--you know, if you look at certain police reports, one place
is going to say, well, the guy came to the store at 3:00, and the
other place will say, well, he came to the store at 3:15.
I know I can't sit here and, you know, try to pinpoint
things to the exact minute, but that's what they were trying to do
to me, and [my attorney] never fought it. Basically, if I came
into the store at 3:00 and walk around for ten minutes and leave
and come back ten minutes later, it's approximately twenty after
three. IfI talked to you for ten or fifteen, no more than twenty,
minutes, that takes us anywhere from 3:30 to 3:40. Then you
4o P.C.R.A. Hearing N.T. 34, 40-41.
47 Commonwealth v. Carney, 707 A.2d 546 (Pa. Super. Ct. 1997).
42 Order of Court, July 29, 1998 (No. 0987 M.D. Allocatur Docket 1997).
43 P.C.R.A. Hearing N.T. 13-15.
9
still have two more people saying they talked to me ten or more
minutes, so we're nearing 4:00, when the police said that they
got the call at 3:16, got there at 3:18. Ultimately, I should have
been arrested at the scene. So, now the prosecutor starts backing
these things up and basically fabricating it to fit anyone being
there.
You also have conflicts of statements. They change the
statement to say, well, I wasn't talking to him directly for ten or
fifteen; and like he was over there and I was over here, and he
looked at me, which you once said that you know it's me
because you talked to me directly for this large amount of time.
Scientifically and sound reasoning shows that it couldn't have
happened the way they said it happened.
My inference from that was, okay, maybe there was a
robbery that occurred, and maybe it was in and out or seemed
like an eternity when it was only a matter of minutes. That's
why you have conflicting statements. This is what you're
saying, that if you saw a guy with acne and peach fuzz that
would more than likely be the guy. Well, who do you believe?
Do you believe this witness or this witness? Ultimately, the
only witness that says, okay, I know for sure, I could pick this
guy out if I ever saw him, see his picture or see him in person,
and she sees photos and says, hey, this guy is it.
It wasn't me, in the full investigation of what happened.
With the testimony that was given and the circumstances in
which they say I was there--well, you could have brought that
guy in the courtroom or anybody else, and he would have been
convicted just as I was convicted. I didn't have anyone to come
in to say exactly where I was, but I had my grandmother come
testify and say, yeah, I was at a funeral earlier that day.44
Finally, Defendant through his attorney at the Post Conviction Relief Act hearing
questioned the wisdom of his former counsel's failure to pursue on appeal the issue of the
44 P.C.R.A. Hearing N.T. 17-19.
10
court's adverse ruling upon his pretrial suppression motion.4s As noted previously, this
motion was premised upon an allegedly unduly suggestive photo array process.
Defendant's former counsel testified at the Post Conviction Relief Act hearing that
he had been a practicing attorney for about eight years as of Defendant's trial and had been
a public defender for about six of those years.46 He stated that his experience included
dozens of trials.47
The theory of the defense in the case was that Defendant had been mistakenly
identified as the perpetrator, according to his attorney's testimony.48 With respect to
Defendant's claim that he had been in handcuffs in the presence of the jury throughout the
trial, his counsel stated that he had no recollection that this had been the case,49 that he had
no recollection that Defendant had asked him to secure their removal,so and that any such
occurrence would presumably have been indicated in his notes and was not.si Defendant's
counsel testified further that he would have requested a mistrial had Defendant appeared in
handcuffs in the presence of the jury?
With respect to Defendant's claim that his counsel had failed to exploit
inconsistencies in the eyewitnesses' accounts of the temporal aspects of the robbery, the
45 P.C.R.A.
46 P.C.R.A.
47 P.C.R.A.
48 P.C.R.A.
49 P.C.R.A.
Hearing N.T. 40-41.
Hearing N.T. 32.
Hearing N.T. 33.
Hearing N.T. 39-40.
Hearing N.T. 36.
so P.C.R.A. Hearing N.T. 36.
si P.C.R.A. Hearing 36-37.
s2 P.C.R.A. Hearing 37.
11
attorney acknowledged that some evolution of detail had occurred in the accounts? In
particular, he stated that a given witness may have explained that the time he or she initially
said was spent with Defendant during the incident was not always in face-to-face
conversation?
With respect to Defendant's claim that his counsel should have included the issue of
the pretrial suppression ruling among those pursued on direct appeal, Defendant's attorney
testified that the evidence at the suppression hearing had led him to believe that the motion
lacked merit,ss
DISCUSSION
In a Post Conviction Relief Act hearing, the court as trier of fact is the judge of the
credibility of witnesses. Commonwealth v. Lehr, 400 Pa. Super. 514, 518, 583 A.2d 1234,
1236 (1990). A trier of fact is free to believe all, part or none of the evidence.
Commonwealth v. Gribble, 550 Pa. 62, 78, 703 A.2d 426, 434 (1997).
On the subject of the effect of a Defendant's prolonged appearance before a jury in
handcuffs, it may be noted that such an occurrence would raise serious questions of unfair
prejudice in the absence of special circumstances. See Commonwealth v. Cruz, 226 Pa.
Super. 241, 311 A.2d 691 (1973).
On the subject of inadequate representation, "[i]t is by now axiomatic that a
defendant in a criminal case is entitled to effective representation at trial." Commonwealth
v. Collins, 519 Pa. 58, 63,545 A.2d 882, 885 (1988). With respect to a claim of ineffective
assistance, however, "Pennsylvania courts presume that an accused's counsel is effective and
place the burden of proving ineffectiveness on the convicted defendant." Packel & Poulin,
s3 P.C.R.A. Hearing N.T. 38.
s4 P.C.R.A. Hearing N.T. 38.
ss P.C.R.A. Hearing N.T. 34.
12
Pennsylvania Evidence 9 307, at 116 (1987). In the context of a proceeding under the Post
Conviction Relief Act,56 Judge Hess of this court has noted that the burden is a "heavy" one.
Commonwealth v. Borrero, 42 Cumberland L.J. 419, 420 (1993).
A general rule for the analysis of a claim of ineffectiveness of counsel has been
provided by the Pennsylvania Supreme Court as follows:
There are three elements to a valid claim of ineffective
assistance. We inquire first whether the underlying claim is of
arguable merit; that is, whether the disputed action or omission
by counsel was of questionable legal soundness. If so, we ask
whether counsel had any reasonable basis for the questionable
action or omission .... If he did, our inquiry ends. If not, the
[defendant] will be granted relief if he also demonstrates that
counsel's improper course of conduct worked to his prejudice ....
Commonwealth v. Davis, 518 Pa. 77, 83,541 A.2d 315,318 (1988); see Commonwealth v.
Beasley, 544 Pa. 554, 678 A.2d 773 (1996), cert. denied, U.S. __, 117 S. Ct. 1257, 137
L. Ed. 2d 337 (1997); Commonwealth v. Hess, No. 94-1437 Criminal Term (Cumberland
Co., March 11, 1997) (Sheely, P.J.).
However, under the Post Conviction Relief Act, a person seeking relief on the basis
of ineffective assistance of counsel must prove, by a preponderance of the evidence, that the
"conviction or sentence resulted from ... [i]neffective assistance ... 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?? Thus, the Pennsylvania
Superior Court has stated that in this context "it is not enough for Ia defendant] to show that
he suffered some prejudice as a result of counsel's action or inaction, but rather that
counsel's action or inaction so affected the trial itself ("the truth-determining process") that
the result of the trial is inherently unreliable." Commonwealth v. Weinder, 395 Pa. Super.
56 Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. 99 9541 etseq.
s7 Act of May 13, 1992, P.L. 417, 9 2, as amended, 42 Pa. C.S. 9 9543(a)(2)(ii).
13
608, 627, 577 A.2d 1364, 1374 (1990).
In this context, it has often been stated that a "defendant is not entitled to and cannot
realistically expect to receive a perfect trial but only a fair trial." Commonwealth v. Todt,
318 Pa. Super. 55, 69, 464 A.2d 1226, 1233 (1983). It has been observed that, "if [an]
accused were to be represented by fifty lawyers, some aspect of the performance of each
could be decried as 'ineffective'" Commonwealth v. Watlington, 491 Pa. 241,252, 420 A.2d
431,437 (1980).
In the present case, the court, in its capacity as trier of fact, did not find Defendant's
testimony that he had appeared before the jury in handcuffs throughout the entire trial
credible. It accepted the testimony of his former counsel that if such an event had occurred
he would have taken remedial action. Consequently, the court was unpersuaded, as a factual
matter, that Defendant's claim on this point had arguable merit.
Defendant's claim that his counsel failed to exploit inconsistencies in the
recollections of witnesses as to the times and durations of events associated with the robbery
is similarly uncompelling in a factual sense. Stated otherwise, the court has not been placed
in a position by the evidence presented to conclude that material inconsistencies were present
in the accounts which could have been exploited to Defendant's advantage. To the extent
that minor discrepancies and enhancements of detail may have appeared in the versions of
the incident presented, a failure of counsel to belabor them would fall far short of the degree
of prejudice which produce a trial whose result was unreliable.
Finally, Defendant's claim of ineffective assistance based upon the failure of his
counsel to include the suppression issue involving a photo array must also be rejected.
Nothing in the Defendant's presentation at the Post Conviction Relief Act hearing or in the
record would lead this court to dispute his counsel's conclusion that the motion was not
meritorious. As noted previously, an attorney will not be deemed ineffective for failing to
pursue a frivolous issue.
14
For the foregoing reasons, Defendant's Post Conviction Relief Act petition must be
denied.
ORDER OF COURT
AND NOW, this 16th day of February, 1999, upon consideration of Defendant's
petition for collateral relief under the Post Conviction Relief Act, following a hearing, and
for the reasons stated in the accompanying opinion, the petition is denied.
BY THE COURT,
Jaime M. Keating, Esq.
Assistant District Attorney
For the Commonwealth
Michael A. Scherer, Esq.
Court-appointed Counsel
For the Defendant/Petitioner
/s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
15