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HomeMy WebLinkAbout83-0859 CriminalCOMMONWEALTH Vo RANDY WAYNE BRYNER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 83-0859 CRIMINAL TERM IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. ORDER OF COURT 11 AND NOW, this~.~T~day of August, 1999, after careful consideration of Petitioner's petition 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. Chief Deputy District Attorney James K. Jones, Esq. 7 Irvine Row Carlisle, PA 17013 Court-appointed attorney for Defendant Wesley Ole/~r., J. ' irc COMMONWEALTH RANDY WAYNE BRYNER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 83-0859 CRIMINAL TERM IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., August , 1999. On February 16, 1984, Petitioner was found guilty of murder in the third degree following a jury trial. He was sentenced to 9-1/2 to 20 years imprisonment on August 16, 1984, by the Honorable Harold E. Sheely.~ The conviction became final2 after the Pennsylvania Supreme Court denied a petition for allowance of appeal on March 17, 1986,3 and the United States Supreme. Court denied a petition for writ of certiorari on October 6, 1986.4 At issue at this time is whether Petitioner's Post Conviction Relief Act Order of Court, August 16, 1984. President Judge Sheely has since retired. 2 Under the Post Conviction Relief Act, a judgment becomes final at the conclusion of direct review, including discretionary review in the United States Supreme Court and the Pennsylvania Supreme Court. See Act of May 13, 1982, P.L. 417, §2, as amended, 42 Pa. C.S. §9545(b)(3). 3 Allowance of appeal denied, No. 244 M.D. Allocatur Docket 1985 (Pennsylvania Supreme Court, March 17, 1986). 4 Petition for Writ of Certiorari Denied, No. 85-7048 (United States Supreme Court, October 6, 1986). (hereinafter P.C.R.A.) petition,5 which requests relief in the form of a discharge or a new trial, should be granted. The basis for the relief sought is alleged ineffective assistance of counsel. Petitioner contends that his trial counsel was ineffective in four respects. He maintains (1) that trial counsel did not adequately pursue the issue of a degree of intoxication on petitioner's part that produced a state of reduced capacity; (2) that trial counsel did not pursue the violent propensities of the victim; (3) that trial counsel did not adequately challenge the credibility of a Commonwealth witness named John H. Johnson; and (4) that trial counsel did not adequately address the existence of stops and starts on a tape recording of an incriminating statement that Petitioner gave to police.6 A hearing on the petition was held on Monday, March 29, 1999. The hearing also encompassed a Commonwealth motion to dismiss the P.C.R.A. petition, which was filed on February 12, 1999, on the ground of untimeliness. Based upon the evidence presented at the hearing, the petition will be denied. Act of May 13, 1982, P.L. 417, {}2, as amended, 42 Pa. C.S. {}{}9541 et seq. 6 N.T. 4-5, Post Conviction Relief Act hearing, March 29, 1999 (hereinafter Hearing, N.T. ). Petitioner mentioned two other matters of concern to him at the P.C.R.A. hearing. He questioned whether his trial counsel was remiss for failing to bring up the fact that no blood or hair samples were obtained to link him to the scene of the killing. Hearing, N.T. 29. In light of the statement obtained from Petitioner that was admitted at trial, conceding his presence at the scene, such evidence would have been of no assistance to trial counsel and would not have affected the outcome of the trial. Petitioner also questioned whether his trial counsel was remiss for failing to examine evidence at the scene of the killing that would have indicated that Petitioner was not the aggressor. Hearing, N.T. 30. This concern was both vague and inconclusive. No evidence of an exculpatory nature was offered at the hearing in support of this query. 2 STATEMENT OF FACTS As the result of an incident occurring on the night of June 29, 1983, Petitioner was charged with murder, in connection with the death of Gary Lovett. At trial, the coroner testified that Mr. Lovett was found dead on the morning of June 30, 1983.7 According to the coroner, the cause of death was a stab wound that penetrated the chest and heart of Mr. Lovett.8 Petitioner, in a statement given to police, admitted to killing Mr. Lovett.9 Events leading to the death of Mr. Lovett were described in a tape-recorded, transcribed statement of Petitioner as follows: ~° In mid-June, 1983, Petitioner gave Mr. Lovett $400 for the purchase of a pound of marijuana.~ On June 29, 1983, Petitioner decided to look for Mr. Lovett because Mr. Lovett still had the $400 and had never produced the marijuana.~2 John H. Johnson gave N.T. 11-12, Trial, February 14-15, 1984 (hereinafter Trial, N.T. Trial, N.T. 14-15. Trial, N.T. 61. l0 Trial, N.T. 56-113. Il Trial, N.T. 66. 12 Trial, N.T. 66. 3 Petitioner a ride that evening and dropped Petitioner off in a neighborhood that Mr. Lovett was known to frequent.~3 Petitioner came across Mr. Lovett as he was walking off the steps of a nearby house.~4 Petitioner confronted Mr. Lovett and declared that he wanted either the money or the marijuana.~5 At this point, Mr. Lovett advised Petitioner that he was going to "rip [Petitioner] off.''~6 Petitioner then "started going after" Mr. Lovett, who responded by punching Petitioner three times in the head, causing Petitioner to fall to the ground.~7 Petitioner then removed a knife from his pocket and lunged at Mr. Lovett. ~8 It was at this point that Petitioner stabbed Mr. Lovett in the chest.~9 After the incident, Petitioner asked John H. Johnson to take him to a place known as Waggoner's Gap so that he could dispose of the knife.2° Mr. Johnson complied and Petitioner threw the knife over the edge of a mountain.TM 13 Trial, N.T. 77. 14 Trial, N.T. 78. 15 Trial, N.T. 82. ~6 Trial, N.T. 82. ~7 Trial, N.T. 83. 18 Trial, N.T. 85. ~9 Trial, N.T. 89. 20 Trial, N.T. 101. 21 Trial, N.T. 107. 4 In his testimony at trial, Mr. Johnson confirmed that he had picked Petitioner up in Carlisle on the night of the confrontation? He also testified that Petitioner had said "he was looking for somebody" because "somebody had ripped him off.''23 Mr. Johnson confirmed that he drove Petitioner to Waggoner's Gap two days later and that he and Petitioner took a walk along the side of the mountain.24 Petitioner filed two previous Post Conviction Hearing Act25 petitions, one on April 29, 1987, and the other on May 13, 1988. At the present P.C.R.A. hearing, Petitioner testified that, on the advice of court-appointed counsel who were representing him at those times, he had withdrawn both petitions.26 According to Petitioner's testimony, his delay in filing the P.C.R.A. petition sub judice was the result of the advice given to him by these attorneys.27 Petitioner testified that his prior collateral relief attorneys had told him that he could receive a more severe sentence if a new trial were granted because he could be 22 Trial, N.T. 51. 23 Trial, N.T. 52. 24 Trial, N.T. 48-49. 25 Act of May 13, 1982, P.L. 417, §2, 42 Pa. C.S. §§9541 et seq. 26 Hearing, N.T. 8. 27 Hearing, N.T. 7. 5 found guilty of a higher degree of murder.28 In addition, Petitioner testified that he was under the assumption that he did not fall under the amended provisions of the Post Conviction Relief Act, relating to the time for filing petitions.29 At the hearing, on the subject of reduced capacity, Petitioner testified that the defense strategy of his court-appointed trial counsel was to persuade the trier of fact that his conduct amounted to a crime of passion.3° Petitioner stated that he did not consider the occurrence to have been a crime of passion.31 Petitioner suggested that he might have been found guilty of a crime less serious than third degree murder if his trial counsel had made a stronger argument for "diminished capacity.''32 The trial counsel's testimony at the P.C.R.A. hearing on this subject was to the effect that the issue of reduced capacity due to voluntary intoxication was vigorously advanced to the jury.33 He noted that the evidence at trial included a recorded statement given to the police indicating that Petitioner drank three beers at home and an additional 2SHearing, N.T. 7-8. It would appear that this advice, if given, was not correct. See Commonwealth v. Feaser, 723 A. 2d 197 (Pa. Super. Ct. 1999). 29 Hearing, N.T. 8. 30 Hearing, N.T. 13. 3~ Hearing, N.T. 14. 32 Hearing, N.T. 14. 33 Hearing, N.T. 46. Strictly speaking, the defense of voluntary intoxication is not synonymous with the defense of diminished capacity. Oler, Pennsylvania Criminal Law: Defendant's Mental State {}7.2, at 136 (Michie Co. 1986). half case of beer prior to confronting Mr. Lovett.34 The trial counsel agreed, in his testimony, that he had also used the circumstances of the altercation between Petitioner and Mr. Lovett to argue for voluntary manslaughter? On the subject of violent propensities of the victim, Petitioner testified at the hearing that the jury was led to believe that Mr. Lovett was a normal, law-abiding citizen.36 Petitioner suggested that Mr. Lovett could have been unstable because he had been treated for self-inflicted lacerations and had been taking a form of the drug Valium.37 Petitioner also suggested that trial counsel could have called witnesses to testify as to Mr. Lovett's behavior and that the testimony of psychiatrists or other physicians who may have been treating Mr. Lovett would have been helpful to Petitioner's case.38 In response to Petitioner's testimony on this subject, Petitioner's trial counsel testified that he was unaware of any evidence concerning possible violent propensities on the part of Mr. Lovett.39 He noted, however, that evidence of the victim's prior acts had 34 Hearing, N.T. 46. 35 Hearing, N.T. 46. 36 Hearing, N.T. 19. 37 Hearing, N.T. 19. 38 Hearing, N.T. 20. 39 Hearing, N.T. 48. 7 been brought out at trial:4° a stipulation was introduced that Mr. Lovett was treated at Carlisle Hospital on June 27, 1983, for multiple self-inflicted lacerations made with a razor;4~ information was received at trial that Mr. Lovett had taken a low-level dosage of the tranquilizing agent Valium;42 and evidence at trial tended to show that Mr. Lovett was involved in drug transactions.43 The trial counsel stated that although he "focused throughout the trial on the victim ... it's always difficult in a homicide case to try to paint a poor picture of the victim because the victim's dead" and "nobody deserves to be dead."44 On the subject of his tape-recorded statement, Petitioner testified at the hearing that, during the period that he was providing a recorded statement to the police, if he did not know the answer to a question the investigating officers would stop the tape recording and review the events with him.45 Petitioner also claimed that the officers "coerced" him 4o Hearing, N.T. 47. 41 Hearing, N.T. 48. 42 Hearing, N.T. 51. 43 Hearing, N.T. 48. 44 Hearing, N.T. 47. 45 Hearing, N.T. 26. into giving information of which he had no knowledge or no recollection, and that he made statements on the tape that the officers asked him to say.46 On the other hand, the trial counsel testified that he had no recollection of being informed that there were starts and stops in connection with the recorded statement.47 He stated that Petitioner had never indicated that there were stops and starts on the recording,48 and that he was unaware of any claim that starts and stops on the recording existed.4° In addition, he testified that he did not want to challenge the veracity of the recorded statement,so In this latter regard, the trial counsel pointed out that Petitioner had made a number of statements to the police but that the Commonwealth had used only one, which was the most favorable statement.51 The trial counsel testified that the recorded statement "supported [Petitioner's] claim that he was blind drunk on fifteen cans of beer" and that Petitioner "had been assaulted himself, and had been verbally challenged.''52 He noted 46 Hearing, N.T. 30. No evidence other than Petitioner's testimony at the P.C.R.A. hearing was presented in support of this claim. 47 Hearing, 48 Hearing, 49 Hearing, 50 Hearing, 51 Hearing, 52 Hearing, N.T. 53. N.T. 55. N.T. 53. N.T. 57. N.T. 57. N.T. 58-59. 9 that once the statement was admitted it became advantageous to portray the statement as truthful because the statement included evidence that would be helpful in arguing against a conviction for first degree murder? He testified that the trial strategy was "either shoot for voluntary manslaughter or a third degree conviction, and to try to avoid the first degree charge,''54 and that he used the circumstances of the altercation between Petitioner and Mr. Lovett to argue for voluntary manslaughter or, in the alternative, third degree murder? On the subject of the impeachment of a Commonwealth witness, Petitioner testified at the hearing that John H. Johnson was biased due to an incident in which Petitioner assisted in removing Mr. Johnson and his belongings from a house where Mr. Johnson was living? Petitioner suggested that his trial counsel could have discredited Mr. Johnson, thereby raising a doubt as 'to Petitioner's guilt? In response to this position, the trial counsel noted that the testimony of Mr. Johnson had been limited in scope and had essentially corroborated Petitioner's version of the incident as he had provided it to police? For instance, upon cross-examination by 53 Hearing, N.T. 67. 54 Hearing, N.T. 44. 55 Hearing, N.T. 46. 56 Hearing, N.T. 21-22. 57 Hearing, N.T. 22. 58 Hearing, N.T. 49-50. 10 the trial counsel at the trial, Mr. Johnson confirmed that Petitioner had been drinking on the night of June 29, 1983.59 In addition, the trial counsel testified that he did not perceive any actual bias on the part of Mr. Johnson? The trial counsel concluded by emphasizing that he did not want to impeach Mr. Johnson because his testimony supported Petitioner's recorded statement,6~ which in turn supported Petitioner's argument against a first degree murder conviction.62 In its capacity as trier-of-fact, the court found the testimony of Petitioner's trial counsel to be fully credible. DISCUSSION A petition filed under the Post Conviction Relief Act, with a few exceptions, must be filed within one year of the date the judgment becomes final. See Act of May 13, 1982, P.L. 417, {}2, as amended, 42 Pa. C.S.A. §9545(b)(1). Section 3(1) of the Act of November 17, 1995, P.L. 1118, provides that a petitioner whose judgment became final on or before the effective date of the act is to be deemed to have filed a timely petition if his or her first petition is filed within one year of the effective date of the act. As the Commonwealth suggests, there is an obvious procedural difficulty involved in the timing 59 Hearing, N.T. 50. 60 Hearing, N.T. 53. 61 Hearing, N.T. 50. 62 Hearing, N.T. 51. 11 of Petitioner's filing in this case. Of equal or greater significance is the weakness of Petitioner's position on the merits. "It 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." 148 (2d ed. 1998). Packel & Poulin, Pennsylvania Evidence The Pennsylvania Supreme Court has stated a general rule for the analysis of a claim of ineffective assistance of counsel: 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, 520 U.S. 1121, 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.). The Pennsylvania Superior Court has noted in this context that "it is not enough for [a defendant] to show that he suffered some prejudice as a result of counsel's action 12 or inaction, but rather that counsel's action or inaction so affected the trial itself ('the truth-determining process') that the result is inherently unreliable." Commonwealth v. Weidner, 395 Pa. Super. 608, 627, 577 A.2d 1364, 1374 (1990). The Pennsylvania Supreme Court has held that the standard for proving ineffectiveness under the Post Conviction Relief Act is the same as the standard for proving inadequate representation on direct appeal. See Commonwealth v. Kimball, __ Pa. ,724 A.2d 326 (1999). 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 ... ineffective 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.''63 In the context of a proceeding under the Post Conviction Relief Act, Judge Hess of this court has noted that the burden of proof upon a petitioner is a "heavy" one. Commonwealth v. Borrera, 42 Cumberland L.J. 419, 420 (1993). The Supreme Court has summarized the proper analysis under the Post Conviction Relief Act as follows: The petitioner must ... 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 63 Act of May 13, 1982, P.L. 417 §2, as amended, 42 Pa. C.S.A. §9543(a)(2)(ii). 13 of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, __ Pa. __, __., 724 A.2d 326, 333 (1999). 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). Petitioner's first claim, that trial counsel failed to adequately pursue the issue of intoxication on Petitioner's part that produced a state of reduced capacity, is not compelling. This contention factually lacks arguable merit. As noted previously, the consumption of alcohol by Petitioner was brought out at trial through the testimony of Mr. Johnson and through Petitioner's statement that was placed on the record; its incapacitating effect was argued to the jury by his counsel. It is also clear that Petitioner has not suffered any prejudice as a result of trial counsel's actions with respect to the issue of reduced capacity due to voluntary intoxication. The beneficial effect of such intoxication, from a defendant's standpoint, is described in the Crimes Code as follows: §308. Intoxication or drugged condition Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the 14 defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.64 This statute provides that a crime can be reduced by virtue of voluntary intoxication from a higher degree to a lower degree of murder only. The reduction will not change the character of the crime from murder to manslaughter. See Commonwealth v. England, 474 Pa. 1,375 A.2d 1292 (1977). At trial, the jury found Petitioner guilty of third degree murder. A stronger case as to reduced capacity by reason of voluntary intoxication could not have produced a more beneficial defense result. Defendant's second claim, that trial counsel did not pursue the violent propensities of the victim, is similarly unpersuasive. Petitioner's trial counsel testified that there was no evidence that Mr. Lovett had violent propensities; no information to the contrary was presented at the P.C.R.A. hearing. Furthermore, evidence of the prior acts of the victim was introduced at the trial. Thus, this claim also lacks arguable merit. Petitioner's third claim, that trial counsel was ineffective for failing to address the existence of stops and starts on the recorded statement that Petitioner made to the investigating detective, must also be rejected. First, Petitioner's trial counsel testified credibly that Petitioner did not inform him of the presence of the starts and stops on the recorded statement, and that he perceived none. Second, trial counsel testified that he did not want to impeach the recorded statement because he was relying on its content in order to avoid a conviction for first degree murder. Third, Petitioner has not demonstrated the requisite prejudice on this point to obtain relief on a claim of 64 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S.A. §308. 15 ineffectiveness of counsel; the evidence of Petitioner at the P.C.R.A. hearing failed to indicate a reasonable probability that the outcome of the proceeding would have been different had evidence of stops and starts been presented. In summary, the claim lacks arguable merit, is rebuttable on the basis of reasonable trial strategy and fails in terms of requisite prejudice. Petitioner's final claim of ineffective assistance, based upon the absence of a challenge to the credibility of John H. Johnson on the ground of bias, is also not compelling. Even if it were assumed that counsel had been advised of a circumstance which could have resulted in ill-will on the part of the ~vitness toward Petitioner, a reasonable basis existed for counsel's reluctance to impeach Mr. Johnson: his testimony was limited in scope and tended to support the credibility of Petitioner's version of events. In addition, it cannot be said that the impeachment of Mr. Johnson would probably have affected the outcome of the trial by producing an acquittal or a conviction of a lesser degree of criminal homicide. CONCLUSION It is apparent in this case that Petitioner has been incarcerated far beyond his minimum sentence and longer than had been anticipated at the time of sentencing. This court, however, is not empowered through the Post Conviction Relief Act to intervene in the parole process. Petitioner has the burden of establishing each of the three prongs of the test for ineffective assistance of counsel. Based upon the evidence at the P.C.R.A. hearing, the 16 court is constrained to find that he has not met this burden as to any of the claims asserted. For the foregoing reasons, Petitioner's Post Conviction Relief Act petition must be denied. ORDER OF COURT AND NOW, this 26th day of August, 1999, after careful consideration of Petitioner's petition 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. Chief Deputy District Attorney James K. Jones, Esq. 7 Irvine Row Carlisle, PA 17013 Court-appointed attorney for Defendant :rc s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 17