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HomeMy WebLinkAbout01-2229 CriminalCOMMONWEALTH VS. ROBERT FISHER III IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2229 CRIMINAL IN RE: POST-CONVICTION RELIEF ACT PETITION BEFORE HESS. J. OPINION AND ORDER On June 11, 2002, the defendant was sentenced on simple assault, recklessly endangering another person and aggravated assault charges to an aggregate sentence of six and one-half to fifteen years. The charges involved an incident which occurred during the early morning hours of October 12, 2001. The defendant and the victim had had an argument at Fast Eddie's Bar in Carlisle. The two then went outside the bar and into a parking lot where the defendant stabbed the victim causing life-threatening wounds. The defendant has filed a motion for post-conviction collateral relief citing ineffectiveness of his trial counsel. The allegation set forth in his petition is as follows: In my jury trial the Judge "Kevin A. Hess" took it upon himself to write on the verdict slips, to defferentiate [sic] the two Aggravated Assaults charges by writing Bodily Injury on one and Serious Bodily Injury on another after the jury retired to deliberate. By the Judge's partial instructions written on the Verdict Slips of the two Aggravated Assaults encouraged and influenced the jury to focus on the written instructions and ignore the general instructions given orally. In this error of written instructions to the jury I was found Guilty. Also my trial counsel Arla M. Waller was ineffective for failing to object to this submission of written jury instructions while the jury 01-2229 CRIMINAL deliberated. Counsel Aria M. Waller is also ineffective for refusing to put and [sic] appeal in on the grounds above written jury instruction. It is true that we marked the two aggravated assault verdict slips as the defendant indicated. This was done to differentiate between the two different types of aggravated assault with which the defendant stood charged. Without some written description of the two different types of aggravated assault, we are at a loss to determine how the jury could have distinguished the two. For support of his position, the defendant cites Com. v. Oleynik, 568 A.2d 1238 (Pa. 1990). In that case a jury had found the defendant guilty of involuntary manslaughter and aggravated assault. After the judge's oral instructions on the legal issues involved, over the objections of trial counsel, the judge sent out with the jury written instructions pertaining to legal causation and the definitions of third degree murder and involuntary manslaughter. The Supreme Court expressed concern that a jury would give undue weight to the points of law in written instructions and possibly misinterpret or misapply the law in such written statements. Accordingly, because written jury instructions had been sent out, the holdings of the lower court were reversed and the matter was remanded for a new trial. A similar result pertained in Com. v. Karaffa, 709 A.2d 887 (Pa. 1998) where the jury had been given written instructions on unlawful restraint and reasonable doubt. In Karaffa, however, the Supreme Court mentioned, without negative comment, the earlier case of Comv. Kelly, 399 A.2d 1061 (Pa. 1979). In that case, the verdict slip contained a limited notation concerning the facts with respect to each of several charges. These were referred to in the dissent as brief descriptions "of some of the evidence associated with each count." Id. at 1063. The Supreme Court upheld the conviction in that case. 2 01-2229 CRIMINAL In Com. v. Wharton, 665 A.2d 458 (Pa. 1995), the defendant had been sentenced to death on two counts of first degree murder. The Supreme Court found no fault with the trial court which had sent out a verdict slip containing aggravating and mitigating circumstances. After quoting the language of the aggravating factor under 42 Pa. C. S.A. 97(d)(10), the trial judge added parenthetical language to the effect that the defendant "committed another First Degree Murder at the time of this murder." The Supreme Court found no impropriety in the addition of this language. We are satisfied that the matter sub judice is more similar to the cases where the Supreme Court has found brief notations on the verdict form to be acceptable. The instant case is not one where portions of the charge on the law were sent out to the jury. Counsel for the petitioner is seeking to withdraw on the ground that the matter raised in the PCRA petition is frivolous. While we are satisfied that Mr. Fisher is not entitled to relief, we do not agree that the question raised is frivolous. ORDER AND NOW, this day of December, 2003, the petition of the defendant for post-conviction collateral relief is DENIED. The motion of counsel to withdraw is DENIED. BY THE COURT, Matthew Smith, Esquire Assistant District Attorney James K. Jones, Esquire Court-appointed for Defendant Kevin A. Hess, J. 3 COMMONWEALTH VS. ROBERT FISHER III INRE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2229 CRIMINAL POST-CONVICTION RELIEF ACT PETITION AND NOW, this post-conviction collateral relief is DENIED. BEFORE HESS. J. ORDER day of December, 2003, the petition of the defendant for The motion of counsel to withdraw is DENIED. BY THE COURT, Matthew Smith, Esquire Assistant District Attorney James K. Jones, Esquire Court-appointed for Defendant :rlm Kevin A. Hess, J.