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HomeMy WebLinkAbout95-0380 CriminalCOMMONWEALTH VS. JOHN BAKER IN T~_.~:COURT OF COMMON PLEAS OF . CUM_B_ERLAND COUNTY, PENNSYLVANIA ,~ .. 95-0380 CRIMINAL IN RE: MOTION FOR POST-CONVICTION RELIEF BEFORE HESS, J. ORDER AND NOW, this :2 ~' v day of September, 1998, the petition of the defendant for post-conviction relief is DENIED. BY THE COURT, Jaime Keating, Esquire Sr. Assistant District Attomey Darrell C. Dethlefs, Esquire Court-appointed for Defendant Ky Hess, J. :rlm COMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA vs. ' 95-0380 CRIMINAL JOHN BAKER · IN RE: MOTION FOR POST-CONVICTION RELIEF BEFORE HESS, J. OPINION AND ORDER This Post-Conviction Relief Act (P.C.R.A.) proceeding arises from defendant John Baker's September 16, 1995 conviction for delivery, manufacture or possession with intent to deliver a schedule II controlled substance. The conviction resulted, among other things, from the seizure of a large quantity of cocaine from an outside storage closet at a home occupied by the defendant. The trial was without a jury. The petitioner raises two separate issues, both pertaining to the effectiveness of counsel: 1) that petitioner was denied effective assistance of counsel when his trial counsel opened the door to the precluded evidence of petitioner's previous controlled narcotics purchases, and 2) that petitioner was denied effective assistance of counsel when trial counsel failed to present a defense. The pertinent portion of 42 Pa.C.S.A. Section 9543 states that the petitioner is entitled to post-conviction relief if "...the conviction or sentence resulted from ... [i]neffective 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. Section 9543 (2) (ii). According to statute, in order to be eligible for relief a petitioner must show that 1) he is currently serving a sentence of imprisonment, 2) the conviction of sentence 95-0380 CRIMINAL resulted from one of the enumerated grounds for relief, 3) the allegation of error has not been previously litigated or waived, and 4) the failure to litigate the issue prior to or during trial could not have been the result of any rational, strategical, technical decision by counsel. 42 Pa.C.S.A. Section 9543 (a). Petitioner raises two assertions under the P.C.R.A. of ineffective assistance of counsel. We are satisfied that they fail to meet the standard set forth in the P.C.R.A. and reiterated in Commonwealth v. Collins: In the context of an ineffective assistance of counsel claim, the defendant must prove that the underlying issue has arguable merit, that counsel had no reasonable basis for the decision, and that counsel's error prejudiced the defendant and so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Collins, 546 Pa. 616, 687 A.2d 1112, 1113 (1996). Petitioner's first assertion is that trial counsel, by opening the door to evidence regarding controlled buys, denied petitioner effective assistance of counsel. In an agreement prior to trial, defense counsel and the Commonwealth agreed to exclude evidence of previous controlled narcotics buys by affiant Detective Fones from the petitioner. However, at trial, petitioner's counsel asked Detective Fones if he had any other information that led Detective Fones to believe that the cocaine discovered in the shed was the petitioner's, eliciting a response regarding the controlled buys. This information was'not used, however, to determine the petitioner's guilt. The reference to controlled buys was fleeting. There was no-indication as to the identity of the person from whom such buys were made. Clearly, this evidence was of no probative value and, 2 95-0380 CRIMINAL as such, its existence was ignored. Of interest is the fact that the Superior Court, in upholding the conviction in this case, made no reference to drug buys in its summary of what the court described as a "veritable cornucopia" of evidence linking the defendant to the cocaine. Furthermore, this court presumptively is able to disregard inadmissable evidence. The Pennsylvania Superior court recently stated that "when the court is sitting as fact-finder it presumptively is capable of disregarding inadmissable evidence and considering only relevant and Competent evidence." Commonwealth v. Neal, __ Pa. Super __, 713 A.2d 657 at 662 (1998). Given that this court ignored the evidence of the controlled buys, it cannot be said that the petitioner's claim has arguable merit. It is also clear that the partial mention of the controlled buys did not "so undermine the truth determining process [so] that no reliable adjudication of guilt or innocence could ... take place." Collins, 546 Pa. at 616, 687 A.2d at 1113. Petitioner's second assertion is that by failing to present a defense at trial his trial counsel denied him effective assistance of counsel. We agree with the Commonwealth in its treatment of this issue in its brief. In order for a defendant to establish that trial counsel was ineffective for failing to present witnesses he must establish that 1) the witness existed, 2) the witness was available to testify, 3) counsel was informed of the existence of the witnesses or should have known of the witnesses existence, 4) the witnesses were available and prepared to cooperate and would have testified on petitioner's behalf and 5) the absence of the testimony prejudiced the petitioner. - Commonwealth v. Gonzalez, 415 Pa. Super. 65, 608 A.2d 528 (1992). In this regard, the defendant claims that the trial attorney should have called 95-0380 CRIMINAL Terra Bunch to testify that ~ was on the lease and that other people had acce~ the storage closet. However, such facts were elicited through the Commonwealth's case. There was no need to put on any witnesses in order to do that. At the time of trial, Mr. Harker testified that he did not want to call Terra Bunch as a witness because he was not certain that she would tell the truth. In fact, he had testified that she had given him several different stories as to the contents of that locker. Likewise, the defendant has produced no evidence that his "nephew" was available and prepared to cooperate on the defendant's behalf. However, it cannot be claimed that absent the nephew's testimony, there was no evidence that other people had access to the storage shed in light of the housing authority superintendent's testimony that other people had access to the storage shed. Thus, the defendant has failed to show any prejudice by failing to present this evidence. Commonwealth's Memorandum of Law, pp. 3-4. A review of the record in this case makes it clear that the defendant was ably represented in the trial of this case and that, at no time, was the truth-determining process undermined in any way. Thus, we enter an order denying the request of the defendant for post-conviction relief. ORDER AND NOW, this day of September, 1998, the petition of the defendant for post-conviction relief is DENIED. BY THE COURT, 4 Kev--~in ies/t~~ s, ,1. 95-0380 CRIMINAL Jaime Keating, Esquire Sr. Assistant District Attorney Darrell C. Dethlefs, Esquire Court-appointed for Defendant :rlm