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Home My WebLink About01-1994 CRIMINAL (2)COMMONWEALTH JACOB A. QUATRARA OTN: E936197-3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (3) (4) (5) AGGRAVATED ASSAULT RECK ENDANG ANOTHER PERSON SIMPLE ASSAULT NO. 01-1994 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., October 29, 2002. This criminal case arose out an incident in which Defendant Jacob A. Quatrara shot and wounded one Jeffery L. Walters. Following a trial, a jury returned verdicts of guilty on charges of aggravated assault, reckless endangerment, and simple assault but not guilty on charges of attempted criminal homicide and criminal conspiracy.~ Pursuant to statutory requirements, Defendant was sentenced to undergo imprisonment of five to ten years in a state correctional facility, the mandatory minimum sentence for aggravated assault involving an attempt to cause serious bodily injury when a visible firearm was used.2 On April 24, 2002, Defendant filed a post-sentence motion raising several issues, including, inter alia, whether the trial court erred in refusing to grant Defendant's pre- trial motion to suppress evidence seized by police during several entries into Defendant's home, whether imposition of a mandatory minimum sentence should have been precluded ~ Order of Ct., Mar. 8, 2002; see Information, filed Nov. 19, 2001. 2 Order of Ct., Apr. 16, 2002. With respect to the charge of aggravated assault involving an attempt to cause serious bodily injury, Defendant was sentenced to pay the costs of prosecution, to make restitution, and to undergo a period of imprisonment of not less than five years nor more than ten years. Id With respect to the charge of aggravated assault involving an attempt to cause bodily injury with a deadly weapon, Defendant was sentenced to pay the costs of prosecution and to undergo a period of imprisonment of not less than sixteen months nor more than thirty-two months. Id The two sentences were ordered to run concurrently. Id With respect to the charges of recklessly endangering another person and simple assault, the court determined that the doctrine of merger precluded the imposition of additional sentences. Id because the Commonwealth had "notified" Defendant before trial that it would not seek such a sentence, and whether the verdicts returned by the jury involved "mutually exclusive" findings so as to require the trial court to grant a judgment of acquittal.3 Following a hearing, the motion was denied by an opinion and order of court dated July 30, 2002.4 On August 21, 2002, Defendant filed an appeal from the judgment of sentence to the Pennsylvania Superior Court.5 In a statement of matters complained of on appeal, Defendant has expressed grounds for the appeal as follows: A. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO iLLEGAL SEARCHES, iNCLUDiNG THE SEARCH CONDUCTED PURSUANT TO A WARRANT. B. TRIAL COUNSELt6~ RENDERED CONSTiTUTiONALLY iNEFFECTiVE ASSISTANCE WHEN, IN HiS POST-SENTENCE MOTION, HE FAILED TO PRESERVE iSSUES REGARDING THE SUPPRESSION OF ALL EVIDENCE SEiZED/OBSERVED DURING ALL WARRANTLESS ENTRIES iNTO DEFENDANT'S HOUSE. C. THE iMPOSiTiON OF THE MANDATORY MiNiMUM SENTENCE WAS iLLEGAL, AS THE COMMONWEALTH HAD MISLED THE DEFENSE BY PROViDiNG, PRIOR TO TRIAL, SENTENCING GUiDELiNES WHICH iNDiCATED THAT NO MANDATORY SENTENCE WAS APPLICABLE, THUS ADVERSELY iMPACTiNG DEFENDANT'S TRIAL STRATEGY. D. THE JURY VERDICTS ARE iNHERENTLY ANTAGONiSTiC, NECESSiTATiNG DEFENDANT'S ACQUITTAL.7 3 Def.'s Post Sentence Mots., filed Apr. 24, 2002. 4 Op. and Order of Ct., July 30, 2002. s Def.'s Notice of Appeal, filed Aug. 21, 2002. 6 Following the court's decision with respect to Defendant's post-sentence motion, but prior to the filing of the notice of appeal, Defendant's privately retained trial counsel was permitted to withdraw due to Defendant's inability to fulfill financial obligations incurred during the course of representation, see Order of Ct., Aug. 14, 2002, and new counsel was thereafter appointed by the court. See Order of Ct., Aug. 19, 2002. 7 Def.'s Concise Statement of Matters Complained of on Appeal, filed Oct. 4, 2002. 2 In the opinion disposing of Defendant's post-sentence motion, the court addressed all issues identified in Defendant's statement of matters complained of on appeal except that dealing with alleged ineffectiveness of trial counsel.8 Accordingly, this opinion, written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), will address only the claim of ineffectiveness of trial counsel.9 DISCUSSION In the present case, the court is of the view that trial counsel did not fail, by virtue of the post-sentence motion, to "preserve issues regarding the suppression of all evidence''l° obtained by police during the warrantless entries into Defendant's home and, accordingly, that Defendant's claim of ineffectiveness of trial counsel cannot succeed on this basis. This view is premised both on Pennsylvania Rule of Criminal Procedure 720, which governs post-sentence motions, and on the opinion disposing of Defendant's post- sentence motion. With respect to Pennsylvania Rule of Criminal Procedure 720, the court is of the opinion that failure to raise an issue in an optional post-sentence motion, when the issue has been properly preserved in the first instance by trial counsel, cannot result in waiver of that issue for purposes of appeal. Rule 720(B)(1) provides, in pertinent part, as follows: (a) The defendant in a court case shall have the right to make a post- sentence motion. All requests for relief from the trial court shall be stated with specificity and particularity, and shall be consolidated in the post- sentence motion .... 8 See Op. and Order of Ct., July 30, 2002. 9 Pa. R.A.P. 1925(a) (stating that issues raised on appeal must be addressed in an opinion only "if the reasons for the order [from which the defendant appeals] do not already appear of record"). l0 Def.'s Concise Statement of Matters Complained of on Appeal, filed Oct. 4, 2002, para. B. 3 (c) Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues. Pa. R. Crim. P. 720(B)(1). As explained in the comment to the rule, under these provisions "failure to... argue an issue in the post-sentence motion [does] not waive that issue on appeal as long as the issue was properly preserved, in the first instances, before or during trial." Id. cmt.; see Commonwealth v. Clinton, 453 Pa. Super. 385, 390-91, 683 A.2d 1236, 1239 (i996). In the present case, Defendant's only claim with respect to ineffectiveness of trial counsel is that, in the post-sentence motion, trial counsel "failed to preserve issues regarding the suppression of all evidence seized/observed during all warrantless entries into Defendant's house.''~ Because Defendant does not assert that trial counsel failed to preserve the issue in the first instance, by filing a pre-trial motion to suppress evidence,~2 under Pennsylvania Rule of Criminal Procedure 720 failure to raise the issue in the optional post-sentence motion could not result in waiver of the issue, and, accordingly, the court is of the view that Defendant's claim of ineffectiveness on this ground is without merit. With respect to the opinion of the court disposing of Defendant's post-sentence motion, the court is of the view that, even if a post-sentence motion could have the effect of waiving issues previously preserved, no waiver of the claims relating to suppression of evidence was recognized in the prior opinion. Generally, an issue raised before the trial court is deemed waived only when the court expressly declines to consider its merits on grounds that the party failed properly to preserve the issue. See id. at 390-93, 683 A.2d at 1239-41; Commonwealth v. Sopota, 403 Pa. Super. 1, 8, 587 A.2d 805, 808 (1991) (en banc) (stating that, when the trial court elects to address an issue on its merits, appellate ~ Def.'s Concise Statement of Matters Complained of on Appeal, filed Oct. 4, 2002, para. B. ~2 A pre-trial motion to suppress evidence was filed by Defendant on December 20, 2001, see Def.'s Omnibus Pre-Trial Mot., filed Dec. 20, 2001, and was the subject of a hearing on January 11, 2002, after which the motion was denied. See Order of Ct., Mar. 1, 2002. 4 court will deem the issue not waived). In the present case, although the court's opinion noted that the post-sentence motion seemed to challenge the evidence discovered during only one of the multiple warrantless entries into Defendant's home, the opinion expressly addressed the merits of Defendant's claims with respect to the evidence obtained as a result of all warrantless entries and did not state that any issues relating to the suppression of evidence had been waived. Accordingly, the court is of the view that these issues were not waived by virtue of the post-sentence motion and that Defendant's claim of ineffectiveness on this ground is without merit. BY THE COURT, J. Wesley Oler, Jr., J. District Attorney's Office Court of Common Pleas of Cumberland County 1 Courthouse Square Carlisle, PA 17013 Charles P. Mackin, Esq. 3300 Trindle Road Camp Hill, PA 17011 Attorney for Defendant 5