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HomeMy WebLinkAbout99-1498 CriminalCOMMONWEALTH V. SCOTT A. VAILLANCOURT, JR. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-1498 CRIMINAL IN RE: PCRA PETITION BEFORE GUIDO, J. OPINION AND ORDER OF COURT Before us is defendant's petition under the Post Conviction Relief Act. ~ Petitioner seeks relief based upon the claimed ineffectiveness of his trial counsel. The defendant was convicted by a jury of robbery2 and aggravated assault.3 He received a mandatory minimum sentence of five to ten years on the robbery charge and a concurrent two to ten year sentence on the aggravated assault charge. His trial counsel filed a direct appeal to the Superior Court in which he raised several allegations of error by the trial court. The Superior Court affirmed the conviction, finding that the issues raised were without merit or had been waived. The issues deemed to have been waived form the basis of the instant petition. FACTUAL BACKGROUND On June 14, 1998, just before midnight, the 14 year old victim answered a knock on her door. When she opened the door, a masked man kicked in the screen door, placed his arm around her throat and put a gun to her head. He then ordered her father to "give ~ 42 Pa. C.S.A. § 9541 et seq. : 18 Pa. C.S.A. § 3701(a)(1). ~ 18 Pa. C.S.A. § 2702(a)(4). NO. 99-1498 CRIMINAL me all your F-in money and weed, or she dies.''4 The father gave him a wallet containing $850 and a purple bag containing marijuana. The victim knew petitioner as one of her brother's friends. While she could not see his face, she was able to identify the masked man's voice as belonging to petitioner. Consequently, he became the focus of the police investigation. In addition to the voice identification, there was a plethora of other evidence linking petitioner to the crime. One of his friends testified that he was with petitioner on the night of the robbery. Petitioner told him that he was going to the victim's house to get some money he was owed by her brother. Petitioner placed a gun into a duffel bag and the witness drove him to a wooded area in the vicinity of the victim's house. Petitioner left the vehicle with the duffel bag. When he returned, he was crying. The day after the robbery petitioner became aware that the police were looking for him. The same friend drove him into the woods so that he could hide the duffel bag and its contents. Based upon information given to them by the friend, the police recovered the duffel bag. It contained various items of physical evidence connected to the robbery, including the gun, the mask, and the purple bag taken from the victim's father. In addition to all of the above evidence, the Commonwealth presented an inculpatory statement that petitioner had made to the police. In it he admitted to being the masked man who had kicked in the victim's screen door. He also admitted to taking drugs and money from the victim's father. As part of his case in chief, petitioner's counsel called the victim's father, Robert Hill, as a defense witness. Counsel had Mr. Hill admit that he did not immediately list Trial Transcript, pp. 10-11. NO. 99-1498 CRIMINAL the marijuana among the items that had been stolen. He also tried to get him to admit the obvious, i.e., that he had not seen the perpetrator's face. To say that Mr. Hill was a hostile witness is an understatement. following exchange took place: During the course of his direct examination, the Someone came into your house, yes or no? Yeah, Scott Vaillancourt did, yes. And you knew it was Scott Vaillancourt because, why? First of all, ! - - not at first. Not at first. But my daughter recognized the voice. And ! know your client did not say one word yet. Let's hear his accent. He has a voice that there is no way that - - 5 On redirect, petitioner's counsel again tried to score points: You did not see who was behind the mask, did you? But I heard. Your boy didn't say nothing yet. Why don't your boy get up here and talk so everybody can see - - Q. You can't tell who was behind the mask, can you? THE WITNESS: By voice, yes. By the fact, no, sir. MR. ROM1NGER: Thank you, sir. THE WITNESS: ! didn't hear your boy say anything yet, yesterday or today. 6 Petitioner's trial counsel filed a direct appeal to the Superior Court on his behalf. He alleged, inter alia, that the trial court erred in failing to strike the above testimony and/or in failing to give a cautionary instruction to the jury. The Superior Court held that those issues had been waived.7 Petitioner now alleges that his trial counsel was ineffective in 1) failing to timely object to the above statements; 2) failing to seek a cautionary instruction; and 3) failing to object to the Court's charge.8 s Trial Transcript, p. 114-115. 6 Trial Transcript, pp. 121-122. It should be noted that petitioner did not testify at trial. 7 No. 1328 MDA 2000. 8 Amended Petition for Post Conviction Relief, para. 9. The third allegation deals with counsel's failure to object to the Court's charge on the ground that it did not contain a cautionary instruction. NO. 99-1498 CRIMINAL DISCUSSION Petitioner is entitled to relief under the Post Conviction Relief Act if he can prove that ineffective assistance of counsel "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa. C.S.A. § 9543 (a)(2)(ii). The standard for proving ineffectiveness claims is well settled. The petitioner must prove by a preponderance of the evidence "(1) that the underlying claim is of arguable merit; (2) that counsel's performance lacked a reasonable basis; and (3) that the ineffectiveness of counsel caused him prejudice." Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203,213 (2001). "Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different." Id. If it is clear that the prejudice prong has not been met, we may dismiss the claim on that basis alone, without discussing the first and second prongs of the test. Commonwealth v. Rizzuto, 566 Pa. 40, 64, 777 A.2d 1069, 1083 (2001). In the instant case, we are satisfied that the prejudice prong has not been met. Petitioner has not come forward with any evidence, nor has he advanced a tenable theory, to show how he was prejudiced by the remarks of Mr. Hill. In the first instance, the evidence of Petitioner's guilt was so overwhelming that the witness's unchallenged comment on his failure to testify cannot be said to have "so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.''9 Stated another way, even if counsel's actions had conformed to petitioner's 9 42 Pa. C.S.A. § 9543(a)(2)(ii). NO. 99-1498 CRIMINAL expectations, there is no" reasonable likelihood that the outcome of (his) trial would have been different." Commonwealth v. Lassister, 554 Pa. 586, 598, 722 A.2d 657, 663 (1998). In addition, as part of his charge, Judge Hoffer specifically told the jury: The person accused of a crime is not required to present evidence or prove anything in his own defense. And it is entirely up to the defendant in every criminal trial whether or not to testify. He has an absolute right founded on the constitution to remain silent. You must not draw any inference of guilt or any other inference adverse to the defendant from the fact that he did not testify, l0 The above instruction cured any prejudice that may have been caused by Mr. Hill's comments on petitioner' s failure to testify. ~ Since petitioner has failed to prove that he suffered any prejudice, his request for relief under the Post Conviction Relief Act will be denied. ORDER OF COURT AND NOW, this day of DECEMBER, 2002, for the reasons set forth in the accompanying opinion, petitioner's request for relief under the Post Conviction Relief Act is DENIED. By the Court, District Attorney Karl Rominger, Esquire For the Defendant /s/Edward E. Guido Edward E. Guido, J. l0 Trial Transcript, p. 160. ~ It also rendered moot petitioner's second and third claims of ineffectiveness, since the charge amounted to a cautionary instruction. NO. 99-1498 CRIMINAL