HomeMy WebLinkAbout97-0496 CriminalCOMMONWEALTH
DARYL STEPHEN BRADY
OTN: E880352-4
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: 97-0496 CRIMINAL TERM
: CHARGES: (1) CRIMINAL HOMICIDE
(2) MURDER
(3) AGGRAVATED ASSAULT
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., November 16, 1998.
In this criminal case, Defendant has appealed to the Pennsylvania Superior Court from
a judgxnent of sentence for first degree murder.~ The appeal was preceded by a jury trial and
denial of a post-sentence motion.2
The bases for the appeal have been stated by Defendant as follows:
1. The guilty verdict for murder in the first degree was not supported
by sufficient evidence of a specific intent to kill.
2. The Defendant was prejudiced by the following specific instances of
ineffectiveness of his trial counsel:
A. Defense counsel failed to call available character
witnesses for the defense.
B. Defense counsel failed to investigate, and failed to call
Dedan Campbell and Paul Naugle as witnesses to establish the
defense of self defense.
C. Defense failed to introduce evidence of victim's
conviction for simple assault.
3. New trial should be ordered in the interest of justice due to the
~ The sentence was life imprisonment. Order of Court, March 10, 1998. The
Commonwealth had not sought the death penalty. Id. By reason of the doctrine of merger,
no additional sentence was imposed with respect to guilty verdicts as to two forms of
aggravated assault. Id.; see Order of Court, Janaury 15, 1998.
2 See Order of Court, August 14, 1998.
prejudice from the cumulative effect of the inadequacy of the defense counsel.3
This opinion in support of the denial of Defendant's post-sentence motion and of the
judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure
1925(a).
STATEMENT OF FACTS
In reviewing the sufficiency of the evidence to sustain a guilty verdict, the court must
"view the evidence, and all reasonable inferences therefrom, in the light most favorable to
the Commonwealth as the verdict winner." Commonwealth v. Modaffare, 529 Pa. 101, 103,
601 A.2d 1233, 1234 (1992), citing Commonwealth v. Hughes, 521 Pa. 423,430, 555 A.2d
1264, 1267 (1989). The trier of fact is "free to believe all, part, or none of the evidence."
Commonwealth v. Jackson, 506 Pa. 469, 474, 485 A.2d 1102, 1105 (1984) (citations
omitted). Viewed accordingly, the evidence at trial may be summarized as follows:
At about 2:00 a.m. on Wednesday, March 12, 1997, a young man named Samuel
Borroughs was fatally stabbed during a fight with Defendant in a parking lot in the Borough
of Carlisle, Cumberland County, Pennsylvania.4 Prior to the fight, Mr. Burroughs had been
walking to his apartment with four other young men after leaving a bar,5 and Defendant had
been driving an automobile, accompanied by a male passenger.6
A particularly intoxicated7 member of Mr. Burroughs' group hailed an occupant in the
3 Defendant's Concise Statement of Matters Complained of on Appeal, filed
September 1, 1998.
4N.T. 17-19, 22, 29, 37, 61, 64, 87-88, 90, 113-16, 134-35, 137-38, 186-90, 205-06,
244, 255-56, 258, Trial, Commonwealth v. Brady, No. 97-0496 Criminal Term (Cumberland
County) (hereinafter N.T. __).
5 N.T. 50-51.
6 N.T. 55-56.
7N.T. 106, 111.
car under the mistaken impression that he was an acquaintance.8 Defendant stopped the car,
and four of the Burroughs' group conversed with Defendant and his passenger.9
The Burroughs group then left the car and proceeded to walk through a parking lot
adjacent to the street where the car was stopped, l0 About 45 seconds later, Defendant drove
the car at a high rate of speed into the parking lot~ and slammed on the brakes, bringing the
car to a stop in the right, rear portion of the lot.~2
The Burroughs group walked back to the car and words were exchanged. 13 Defendant
and his passenger, Dedan Campbell, got out of the car.14
Defendant was about 21 years old,~5
was about 6' 2" tall and weighed about 235
pounds.~6 Mr. Campbell was about 21 years old, ~7was about 5' 10" tall and weighed between
250 and 270 pounds. 18 Within the Burroughs group, Mr. Burroughs was 21 years old, was
5' 9" tall, and weighed about 160 pounds;~9 Paul Naugle, the individual referred to previously
8 N.T. 53-55.
9 N.T. 56-57, 201.
l0 N.T. 57, 201-02.
11 N.T. 84, 202.
~2 N.T. 202.
13 N.T. 59.
14Id.
is See N.T. 78, 82.
~6 N.T. 61, 81.
17 See N.T. 78, 82.
18 N.T. 56, 81.
~9 N.T. 252; Commonwealth's Exhibit 12 (autopsy report).
3
as being highly intoxicated, was 21 years old, was 5' 5" tall, and weighed about 135 pounds;2°
John Andrew Jacomas was 21 or 22 years old, was 5' 5" tall, and weighed 145 pounds;TM
Michael Dyson was 21 or 22 years old, was 5' 11" tall, and weighed 165 pounds;22 and Tynn
Alan Maxwell was 23 or 24 years old.23
All of the individuals in the Burroughs group had been drinking? Mr. Burroughs'
blood alcohol level was between. 17% and. 19%;25 his system also contained cannabinoids.26
Mr. Naugle was intoxicated to the point that he "didn't know what was going on.''27
Mr. Naugle charged toward Defendant and Defendant pushed him away? Mr.
Burroughs took his jacket off, ran toward Defendant, exchanged words with him and then,
according to one Commonwealth witness, struck him? A one-on-one fight ensued between
Defendant and Mr. Burroughs?
20 N.T. 60. The Burroughs group had been celebrating Mr. Naugle's 21st birthday.
N.T. 50.
2~ N.T. 48, 60.
22 N.T. 112.
23 N.T. 78.
24 N.T. 60, 71, 76, 79, 50.
2s N.T. 253-54.
26 N.T. 254.
27 N.T. 111.
28 N.T. 60-61, 111-13.
29N.T. 61,113, 121.
30 N.T. 86, 88. According to one of the Commonwealth's witnesses, "... I guess it was
just a big agreement that it was just going to be a one-on-one fight, you know. And they
started going at it. They started fighting each other."
4
As the fight commenced, Defendant threw left punches.3~ His right hand remained
in his jacket pocket, where he concealed a knife or similar instrument? During the course
of the fight, Defendant withdrew his right hand from his pocket and made an overhand thrust
into Mr. Burroughs' back.33 Defendant then pushed Mr. Burroughs, who was unarmed, 34
down into some bushes.35 When they got up offthe ground, some blood had begun to appear
on Mr. Burroughs' back.36
Mr. Burroughs became progressively weaker during the fight.37 After fighting with
one arm again, Defendant withdrew his hand from his pocket a second time and stabbed Mr.
Burroughs in the chest?
During the fight, which lasted about five minutes,39 Defendant succeeded in getting
Mr. Burroughs' shirt over his head.4° As Mr. Burroughs weakened to the point of being more
or less defenseless,4l Mr. Maxwell noticed that his back was "a wall of blood.''42
31 N.T. 63, 89.
32 N.T. 63, 88-89, 1 13-14.
33 N.T. 1 14.
34 N.T. 92.
35 N.T. 73, 1 14.
36 N.T. 89.
37 N.T. 99.
38 N.T. 1 15; Commonwealth's Exhibit 12 (autopsy report).
39 N.T. 74, 91, 98.
no N.T. 90.
41 N.T. 99.
42 N.T. 90.
Mr. Maxwell ran into the fray and pushed Defendant back, as Mr. Burroughs
collapsed on Mr. Maxwell's ann and then fell to the ground.43 Defendant and Mr. Campbell
fled the scene in the car.44
As others went for help, Mr. Dyson stayed with Mr. Burroughs, who expressed the
belief that he was dying and asked that his parents be told that he loved them.4s When
medical personnel arrived at 2:25 a.m., Mr. Burroughs was pale, unresponsive, without a
pulse, and drawing his last breath.46 He was pronounced dead at about 2:40 a.m. at the
Carlisle Hospital.47
The cause of his death was two stab wounds, one into his lung from the rear chest and
the other into his heart from the front chest.48 Either wound would have been fatal? Both
wounds were to vital parts of the body.so Both wounds were consistent with the
instrumentality of a knife?
Defendant surrendered himself at the Carlisle Police Station at 5:30 p.m. on the day
43 x~d.
44 N.T. 65.
4s N.T. 66.
46 N.T. 131.
47 N.T. 137-38.
48 Commonwealth's Exhibit 12 (autopsy report).
49 N.T. 249, 251-52.
so N.T. 252 (lung); see Commonwealth v. Miller, 430 Pa. Super. 297, 634 A.2d 614
(1993) (heart).
s! N.T. 257. The instrument which caused the death of Mr. Burroughs was not found
bypolice. N.T. 165-63.
6
of the killing, in the company of a minister? On September 8, 1997, he entered a negotiated
plea of guilty to third degree murder? Prior to sentencing, Defendant was permitted to
withdraw his plea over the objection of the Commonwealth,54 and Defendant secured new
counsel for purposes of trial,ss
On January 15, 1998, Defendant was found guilty by a jury of first degree murder,s6
aggravated assault in the form of causing or attempting to cause serious bodily injury,s7 and
aggravated assault in the form of causing or attempting to cause bodily injury with a deadly
weapon? Defendant did not testify or present other witnesses at the trial?
A post-sentence motion was filed by Defendant's trial counsel in the form ora motion
for judgrnent of acquittal, challenging the sufficiency of the evidence to sustain a conviction
for first degree murder.6° Defendant then secured new counsel in the person of the
Cumberland County public defender.6x
Defendant's new counsel supplemented the post-sentence motion with a motion for
s2 N.T. 161,165.
s3 See Order of Court, September 8, 1997.
s4 See Order of Court, October 28, 1997.
ss See Order of Court, November 13, 1998.
s6 Act of December 6, 1972, P.L. 1482, § 1, as amended, 18 Pa. C.S. 2502(a).
s7 Act of December 6, 1972, P.L. 1482, § 1, as amended, 18 Pa. C.S. § 2702(a)(1)
(1998 Supp.).
58 Id., § 2702(a)(4).
s9 N.T. 273-75.
60 Defendant's Motion for Judgement of Acquittal Pursuant to Pa. R. Crim. Pro. No.
1410(B), filed March 2, 1998.
6~ See Order of Court, March 30, 1998.
7
a new trial based upon ineffective assistance of trial counsel62 and the interest of justice.63
A hearing was held on the issue of ineffective assistance of counsel on June 15, 1998, and
July 30, 1998.64
Testimony at the hearing on Defendant's post-sentence motion indicated that
Defendant's trial counsel was a 1976 graduate of Temple Law School,65 a highly experienced
criminal defense attorney in Pennsylvania,aa a member of the Pennsylvania Association of
Criminal Defense Lawyers, and a member of the Pennsylvania Supreme Court's Criminal
Procedural Rules Committee.67 She had tried six murder cases,as
With respect to the failure of Defendant's counsel to present character witness
testimony, the counsel had been aware of the availability of several persons who would have
testified that Defendant had a good reputation for being peaceable and nonviolent.69
However, one such proposed female witness had been struck by Defendant in an incident
which resulted in police being summoned, and Defendant's counsel was concerned that this
62 Defendant's Supplement to Post-Sentence Motion, filed May 14, 1998.
63 Defendant's Second Supplement to Post-Sentence Motion, filed June 30, 1998.
64 Pursuant to a motion of Defendant, an extension of thirty days for the court's ruling
upon Defendant's post-sentence motion was granted in accordance with Pennsylvania Rule
of Criminal Procedure 1410(B)(3)(b). See Order of Court, June 22, 1998.
6s N.T. 70 (hearing on Defendant's post-sentence motion).
66 N.T. 71 (hearing on Defendant's post-sentence motion). His counsel's practice was
largely criminal defense work and included appearances in courts in Philadelphia, Dauphin,
Franklin, York, and Northumberland Counties. Id. 70.
67 N.T. 113 (hearing on Defendant's post-sentence motion).
as N.T. 71 (hearing on Defendant's post-sentence motion).
69 N.T. 77 (hearing on Defendant's post-sentence motion). Three such persons
testified at the hearing on Defendant's post-sentence motion. Id. 8-31.
8
incident would be brought out on cross-examination of Defendant's character witnesses.TM
In addition, Defendant's prior criminal record included a conviction in 1994 for a
misdemeanor disorderly conduct arising out of his failure to disperse in connection with a
riot.TM A potential character witness who testified at the post-sentence hearing conceded that
he was shocked to be told of this conviction.72
With respect to the alleged failure of Defendant's counsel to investigate and call as
witnesses Dedan Campbell and Paul Naugle on behalf of Defendant, Mr. Campbell had
declined to respond to counsel's attempts to speak with him. 73 Defendant's counsel did not
wish to call a witness without knowing what he would say.TM
In addition, although in a personally exculpatory statement to police after the incident
Mr. Campbell supported the proposition that Defendant had not started the fight, he also
indicated (1) that he had tried to persuade Defendant to leave prior to the fight, (2) that Mr.
Burroughs had expressed a fear that Defendant was going to cut his throat, (3) that he (Mr.
Campbell) had not stabbed Mr. Burroughs, (4) that he (Mr. Campbell) had not had a knife
during the incident, (5) that Defendant and Mr. Burroughs had fought one-on-one, (6) that
after the incident Defendant had obtained clean clothes from his brother to replace his
bloodied clothes, and (7) that he (Mr. Campbell) had heard Defendant admit that he had tried
to cut Mr. Burroughs in the fight? Defendant's trial counsel was of the view that Mr.
7o N.T. 78-79 (hearing on Defendant's post-sentence motion).
71 N.T. 27-28 (hearing on Defendant's post-sentence motion).
72 N.T. 28 (hearing on Defendant's post-sentence motion).
73 N.T. 76, 85-86, 88, 97, 158-59, 167 (hearing on Defendant's post-sentence motion).
74 N.T. 85-86 (hearing on Defendant's post-sentence motion).
75 Commonwealth's Exhibit 1, Hearing on Defendant's Post-Sentence Motion;
Defendant's Exhibit 5, Hearing on Defendant's Post-Sentence Motion. Defendant's trial
counsel had reviewed Mr. Campbell's statement to police, prior to the trial. N.T. 86-87. At
9
Campbell's testimony would have been on balance more harmful than helpful to the
defense?
Mr. Naugle had told police after the incident that he had been too drunk to remember
much,77 and the Commonwealth ultimately concluded that he had nothing to add to the case
in an evidentiary sense? Defendant's counsel did not attempt to secure a further statement
from Mr. Naugle,79 who had lived with Mr. Burroughs for three years prior to the homicide
and regarded him as his best friend,8° and did not call him as a witness on behalf of
Defendant. Had she done so, he would have testified that he did not remember the incident8~
and would have been highly supportive of the prosecution?
Finally, with respect to the failure of Defendant's counsel to introduce Mr. Burroughs'
criminal record, the counsel was aware of the fact that, as a teenager, Mr. Burroughs had a
conviction for simple assault in 1994.83 She had no reason to believe, however, that
Defendant had been aware of the conviction or had acted out of a belief that Mr. Burroughs
the hearing on Defendant's post-sentence motion, Mr. Campbell testified that his statement
to police had been true. N.T. 121 (hearing on Defendant's post-sentence motion).
76 N.T. 168 (hearing on Defendant's post-sentence motion).
77 Defendant's Exhibit 1, Hearing on Defendant's Post-Sentence Motion, at 14.
78 Id., at 25.
79 N.T. 164 (hearing on Defendant's post-sentence motion).
80 Defendant's Exhibit 1, Hearing on Defendant's Post-Sentence Motion, at 23, 25.
8~Id., at 8-9.
82 Id., at 25-26.
83 Defendant's Exhibit 2, Hearing on Defendant's Post-Sentence Motion; N.T. 163-64
(hearing on Defendant's post-sentence motion).
10
was a violent person,an She also did not view the Commonwealth's evidence as leading to
a conclusion other than that Mr. Burroughs was an aggressive participant in the fight,s5
Following the heating, the court entered the following order:
AND NOW, this 14th day of August, 1998, upon
consideration of Defendant's post-sentence motion in the form
of a motion for judgment of acquittal, supplement to post-
sentence motion (requesting a new trial based upon alleged
ineffectiveness of counsel) and second supplement to post-
sentence motion (requesting a new trial based upon the interest
of justice), and following a hearing held on June 15, 1998, and
July 30, 1998, the submission of briefs, and oral argument held
on August 10, 1998, Defendant's motion is denied.
Defendant's appeal from the judgment of sentence was filed on August 25, 1998.
DISCUSSION
Sufficiency of Evidence To Show Specific Intent To Kill
"It has long been the law that the use of a deadly instrument on a vital part of the
body is sufficient to establish the specific intent to kill required for a conviction of first-
degree murder." Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (1972); see
Commonwealth v. Miller, 430 Pa. Super. 297, 634 A.2d 614 (1993). In the present case, the
evidence tended to show that Defendant had used a deadly instrument upon a vital part of the
body twice in the course of an altercation with Mr. Burroughs. It is believed that this
evidence was sufficient to establish a specific intent to kill in accordance with the principle
recited above.
Alleged Instances of Ineffective Assistance of Counsel
General principles. "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,
~4 N.T. 161-63 (hearing on Defendant's post-sentence motion).
8s N.T. 171 (hearing on Defendant's post-sentence motion).
11
"Pennsylvania courts presume that an accused's counsel is effective and place the burden of
proving ineffectiveness on the convicted defendant." Packel & Poulin, Pennsylvania
Evidence § 307, at 116 (1987).
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). The prejudice must be
of such a nature that the defendant was deprived "of a fair trial, a trial whose result is
reliable." Commonwealth v. Kimball, 453 Pa. Super. 193, 198, 683 A.2d 666, 669 (1996),
quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674, 693 (1984).
Finally, it has often been stated in this context 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, 251-52, 420
A.2d 431,437 (1980).
Failure to call character witnesses. The failure of a defendant's counsel to utilize
available character witness testimony may be considered to be of questionable legal
soundness. Commonwealth v. Weiss, 530 Pa. 1,606 A.2d 439 (1992). However, where the
Commonwealth could counter such testimony with evidence of bad character, an attorney's
decision not to call character witnesses on behalf of the defendant will not be deemed
12
unreasonable. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986).
In the present case, the Commonwealth could have countered Defendant's character
witness testimony with a prior incident of violence and a misdemeanor conviction. See
Commonwealth v. Gibson, 547 Pa. 71,688 A.2d 1152 (1997). Under the circumstances, it
cannot be said that the decision of Defendant's trial counsel to forgo character witness
testimony lacked a reasonable basis.
Failure to investigate and call as defense witnesses Paul Naugle and Dedan
Campbell. Neither a failure to investigate or interview a witness86 nor a failure to call a
witness at trial87 is per se ineffective, in the absence of a positive demonstration that the
action would have been helpful to the defense.
In order to establish a claim of ineffectiveness for failure to
interview and/or present a witness, [a defendant] must prove: (1)
the existence, and availability of the witness; (2) counsel's
awareness of the witness or duty to know of the witness; (3) the
witness' willingness and ability to appear on behalf of the
defendant; and (4) the necessity of the proposed testimony in
order to avoid prejudice.
Commonwealth v. Carbone, 707 A.2d 1145, 1153 (1998).
With respect to Paul Naugle, who did not remember the circumstances of the homicide
and who regarded the decedent as his best friend, it would not appear that the failure of
Defendant's counsel to pursue and utilize his testimony was of questionable legal soundness,
lacking in a reasonable legal basis, or prejudicial to Defendant.
With respect to Dedan Campbell, Defendant's counsel did attempt to contact and
interview him, but she received no response to her overtures. Nevertheless, in view of a
favorable aspect of his statement to the police, it is at least arguable that counsel's decision
not to call him as a witness for the defense was of questionable legal soundness.
86 Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986).
87 Commonwealth v. Carbone, 707 A.2d 1145 (Pa. Super. Ct. 1998).
13
The decision as to whether to present a particular witness at trial, however, is
generally "a matter of trial strategy." Commonwealth v. Lee, 401 Pa. Super. 591,600, 585
A.2d 1084, 1089 (1991). This is particularly true where the testimony of the witness would
contain negative implications for the defense in addition to any positive ones. See
Commonwealth v. Chimenti, 362 Pa. Super. 350, 524 A.2d 913 (1987). Courts have been
reluctant to deem an attomey ineffective for failing to call a witness where the testimony in
question was potentially harmful. See, e.g., Commonwealth v. Harper, 419 Pa. Super. 1, 614
A.2d 1180 (1992).
Thus, in this context the Superior Court has expressed the following sentiment:
We view the defense counsel's decision not to call Ia certain
witness who would have testified that defendant was at the
scene of a shooting but was a mere onlooker] as a tactical choice
which [defendant] may not [later] label as ineffective assistance
of counsel merely because it turned out to be unsuccessful.
Commonwealth v. Lee, 401 Pa. Super. 591,601,585 A.2d 1084, 1089 (1991).
In the present case, Mr. Campbell had not cooperated with Defendant's counsel by
responding to her attempts to secure an interview. His testimony would have included (a)
an admission by Defendant that he had tried to cut Mr. Burroughs, (b) information that
Defendant had shed his clothes following the incident, and (c) the exclusion of Mr. Campbell
as a possible source of harm to Mr. Burroughs and of the weapon which killed him. In
addition, the Commonwealth's evidence at trial contained testimony indicating that
Defendant had not started the fight. Under these circumstances, the decision of Defendant's
trial counsel not to call Mr. Campbell as a defense witness fell within the category of trial
strategy, having a reasonable basis, in the court's view.
Failure to present evidence of decedent's conviction for simple assault. "[W]here a
defendant alleges self-defense, he may use his deceased victim's criminal record either (1)
to corroborate his alleged knowledge of the victim's quarrelsome and violent character to
show that the defendant reasonably believed that his life was in danger; or (2) to prove the
14
allegedly violent propensities of the victim to show that the victim was in fact the aggressor."
Commonwealth v. Amos, 445 Pa. 297, 303,284 A.2d 748, 751 (1971). In the present case,
although Defendant did not testify or present witnesses in support of a theory of self-defense,
the court did instruct the jury on this form of justification because of evidence in the
Commonwealth's case tending to show that Defendant was not the aggressor.
The decedent's simple assault conviction would not have been admissible under the
first form of the rule quoted above, because there was no evidence that Defendant knew of
Mr. Burroughs' quarrelsome and violent character and that he was proceeding accordingly.
However, it is at least arguable that evidence of the conviction would have been admissible
under the second form of the rule. For this reason, the assumption will be made that the
failure of Defendant's counsel to introduce evidence of the decedent's conviction was of
questionable legal soundness.
On the issues of whether the omission had any reasonable basis and whether
Defendant was prejudiced by the omission, however, the record is less supportive of
Defendant's right to relief. In most cases a counsel's failure to present evidence which
would be merely cumulative will not be deemed ineffective. See, e.g., Commonwealth v.
Neal, 713 A.2d 657 (Pa. Super. Ct. 1998); Commonwealth v. Milligan, 693 A.2d 1313 (Pa.
Super. Ct. 1997). More generally stated, it is difficult to perceive a lack of rationality and
prejudice to a defendant's defense in a failure of his counsel to present evidence on a point
already of record.
In the present case, the record was replete with evidence that Mr. Burroughs was
displaying an aggressive and vioilent nature in engaging in a physical fight with Defendant.
The problem from a defense standpoint with a self-defense theory was not, in the court's
view, that the decedent would be perceived by the fact-finder as a faultless victim. It was
that Defendant's decision to use deadly force, given the relative sizes of the contestants, the
fact that Defendant was armed and the decedent was unarmed, and the decedent's blood
alcohol content level, was arguably not the result of a reasonable belief that such force was
15
was necessary to protect himself against "death, serious bodily injury, kidnapping or sexual
intercourse .... "See Act of December 6, 1972, P.L. 1482, § 1, 18 Pa. C.S. 505(b)(2).
Viewed in this way, the conduct of Defendant's counsel in proceeding without the
production of evidence of Mr. Burrough's teenage conviction for simple assault would not
appear to rise to the level of an act of inadequate representation, prejudicial to Defendant in
the sense of depriving him of a fair trial and causing, in itself, an unreliable result.
Alleged Injustice Resulting from Cumulative
Effect of Instances of Inadequate Representation
With respect to Defendant's position that the cumulative effect of instances of
inadequate representation on the part of his trial counsel amounted to an injustice warranting
a new trial, the court's prior analysis of the particulars complained of by Defendant, if
correct, would compel a conclusion that this argument is also without merit. See
Commonwealth v. Hartey, 424 Pa. Super. 29, 621 A.2d 1023 (1993). In addition, an
approach which aggregates individual instances of questionable representation in evaluating
a claim of ineffective assistance has, on at least one occasion, been received with disfavor
by the Superior Court:
Each allegation of ineffective assistance is [to be]
reviewed independently of any other allegations which may also
be advanced by the defendant. Nowhere within our approach is
a court permitted to conclude that the cumulative effect of all
the allegations of ineffective assistance advanced by a defendant
warrants relief where, at the same time, it finds that any one of
several allegations was not sufficient to justify awarding relief
to the defendant.
Commonwealth v. Jones, 370 Pa. Super. 591,594-95, 537 A.2d 32, 34 (1988).
CONCLUSION
Based upon the foregoing, it is believed that the evidence in the present case was
sufficient to show a specific intent to kill and that Defendant failed to show that a new trial
was warranted on the ground of individual acts of ineffective assistance of trial counsel or
16
the cumulative effect thereof. Consequently, it is believed that Defendant's post-sentence
motion was properly denied, and that the judgment of sentence for first degree murder was
properly imposed.
Jonathan R. Birbeck, Esq.
Chief Deputy District Attorney
Taylor P. Andrews, Esq.
Chief Public Defender
17