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HomeMy WebLinkAboutCP-21-CR-2334-1998COMMONWEALTH V. TROY A. NENN1NGER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-2334 CRIMINAL IN RE: PETITION UNDER THE POST CONVICTION RELIEF ACT BEFORE GUIDO, J. OPINION AND ORDER OF COURT Before us is defendant's petition under the Post Conviction Relief Act.~ He seeks relief based upon the claimed ineffectiveness of his trial counsel. For the reasons hereinafter set forth, his petition will be denied. FACTUAL BACKGROUND The incident giving rise to these charges occurred sometime after two o'clock a.m. on November 21, 1998. Trouble had been brewing for several months between petitioner and the victim, Sean Espiritu.2 On the fateful night, petitioner drank himself into an intoxicated stupor. He then proceeded to make several harassing phone calls to Espiritu's home. Having obtained no satisfaction from the phone calls, petitioner concealed a butcher knife under his shirt and went to Espiritu's home to settle matters. The victim was at home with his girlfriend and several others friends. The petitioner continuously rang the doorbell and yelled for Espiritu to come out. Despite 1 42 Pa. C.S.A. § 9541 et seq. 2 The parties had a homosexual encounter the previous summer. Espirtu, an avowed heterosexual, accused petitioner of raping him. Petitioner, an avowed homosexual, took offense at Espiritu's characterization of the encounter which petitioner insisted was consensual. NO. 98-2334 CRIMINAL being told repeatedly to go home, the petitioner continued his loud and obnoxious behavior. Espiritu eventually concealed a retractable baton3 in his back pocket and went outside to confront petitioner. The above facts were basically uncontested by petitioner in his testimony at trial. What occurred next was, however, hotly contested. The victim and several other witnesses related the following version of events. Accompanied by a friend, Espiritu went outside and encouraged petitioner to go home. They each made repeated requests that he "just go home." Petitioner refused. Instead, he pulled out the butcher knife and took a swipe at Espiritu and his friend. Espiritu pulled out his baton and began backing up, yelling for someone to get help or to call the police. The friend immediately ran back to the house and called the police. In an attempt to stop petitioner's advance, Espiritu hit him several times on the head with his baton. However, the blows had no effect and petitioner kept coming with the knife. He lunged at Espiritu, tackled him, and stabbed him in the leg. At all times prior to the stabbing, petitioner could have safely retreated from the confrontation. Petitioner had a different version of events. He testified that Espiritu struck him on the head with the baton as soon as he came out of the residence. He was knocked to the ground and was able to get up only because Espiritu was restrained by his friend. Petitioner backed up to get away, but Espiritu pursued him. Petitioner pulled the knife out of his back pocket and the victim grabbed for it. A wrestling match ensued during which Espiritu was accidentally injured. The remaining relevant facts were established by the uncontradicted testimony of the Commonwealth's witnesses. Espiritu bled profusely from his wound and eventually This item is a martial arts weapon. NO. 98-2334 CRIMINAL became unconscious from the loss of blood. He was taken by ambulance to a local emergency room. He was then flown by helicopter to a trauma unit which was better equipped to deal with his injuries. He very nearly died. Based upon the above facts, the jury convicted petitioner of aggravated assault,4 simple assault,5 and recklessly endangering another person.6 Petitioner was sentenced to a period of incarceration in a state correctional institution. His trial counsel filed a direct appeal to the Superior Court, which affirmed the judgment of sentence.7 This timely petition for relief under the Post Conviction Relief Act followed. Petitioner has asserted numerous grounds for relief in his petition. They all concern the alleged ineffectiveness of his trial counsel. Specifically, he claims that his trial counsel was ineffective in 1) failing to call a particular witness; 2) failing to introduce the victim's prior homosexual experiences, 3) failing to object to the Commonwealth's closing argument; and 4) failing to adequately argue the evidence. 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 of proving ineffectiveness claims is well settled. The petitioner must prove by a preponderance of the evidence that "(1) the underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interest; and (3) but for counsel's 18 Pa. C.S.A. § 2702 (a)(1) and (4). 18 Pa. C.S.A. § 2701(a)(1) and (3). 18 Pa. C.S.A. § 2705. No, 627 MDA 2000. NO. 98-2334 CRIMINAL ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different." Com. v. Lambert, 568 Pa. 346, 797 A.2d 232 (Pa. 2001) Petitioner "must make out all three prongs of an ineffectiveness claim in order to be granted relief." Commonwealth v. Rollins, 558 Pa. 532, 543 738 A.2d 435, 441, (1999). In the instant case, petitioner did not meet his burden in connection with any of his claims. Failure to Call a Witness. Petitioner contends that he is entitled to relief because his trial counsel failed to call Melinda Barber to testify on his behalf. He claims that she would have provided testimony to support his version of the events occurring in the months before the assault, including threats made by the victim against him. Furthermore, while she did not witness the fracas, she saw petitioner shortly afterward and witnessed the injuries he had sustained. The testimony of Ms. Barber would have done nothing more than corroborate petitioner's trial testimony and thus would have been cumulative. "Counsel ordinarily will not be deemed ineffective for failing to call witnesses for the presentation of merely cumulative testimony." Commonwealth v. Neal, 713 A.2d 657, 663 (Pa. Super. 1998). Furthermore, counsel had a reasonable basis in failing to call Ms. Barber. She was living in Arizona at the time and defendant did not have the funds to pay her travel expenses. She had been properly subpoenaed by the Commonwealth and was scheduled to be flown in at its expense. Shortly before trial, the Commonwealth advised defense NO. 98-2334 CRIMINAL counsel that it did not intend to call her as a witness.8 Trial counsel determined not to compel her presence because her testimony was neither crucial to the defense nor without its drawbacks. As counsel noted, "strategically she would confirm a lot of details that may not have been beneficial .... So ! saw it as a double-edged sword...."9 Victim's Prior Homosexual Experiences. Petitioner's next allegation of ineffectiveness deals with his counsel's failure to introduce evidence of the victim's prior homosexual encounters. This claim has no arguable merit. We note that we specifically directed petitioner's trial counsel not to elicit testimony regarding any prior homosexual encounters the victim may have had. Such evidence was completely irrelevant to the assault charges being tried. ~ Even if relevant, its prejudicial effect would have certainly outweighed its probative value. Prosecutor's Closing Argument. Petitioner contends that his trial counsel was ineffective in failing to object to that portion of the prosecutor's closing argument which "characterized the area where the two men fought as the scene of a murder investigation.''~2 This contention must also fail because it has no merit. 8 Transcript of P.C.R.A. proceedings, pp. 66. 9 Transcript of P.C.R.A. proceedings, p. 65. "Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interest." Commonwealth v. Howard, 553 266, 719 A.2d 233, 237 (1999). l0 Trial Transcript, p. 49. ~ Petitioner was obsessed with the "false" accusation of homosexual rape made by the victim against him. He was bound and determined to prove that Espiritu was, in fact, a homosexual himself. We, on the other hand, were determined to keep the inquiry focused on what occurred on the evening of the assault. ~: See Petitioner's "Brief in Support of Petition for Post Conviction Collateral Relief', paragraph 4. NO. 98-2334 CRIMINAL The argument in question was entirely proper under the circumstances of this case. In his closing argument, defense counsel suggested that the prosecutor had somehow overstepped the bounds of propriety by taking control of the crime scene and the ensuing investigation. ~3 This was one of several "red herrings" the prosecutor felt obliged to dispel. ~4 Pointing out that he was involved in "a possible murder investigation at the time it was being investigated", he explained that it was the District Attorney's policy to take charge of the crime scene in such serious cases. ~5 The argument was a fair response to the defense argument and any objection to it would have been overruled. Furthermore, trial counsel had a strategic basis for not objecting to the argument. The prosecutor made numerous objections during the defense closing, most of which were overruled by the trial court. The prosecutor looked petty making so many picayune and meritless objections. In order to take advantage of the prosecutor's missteps, and to build good will with the jury, petitioner's counsel promised the jury that he would not interrupt the prosecution during its closing argument. 16 Even if improper, the prosecutor's comments were not so inflammatory as to compel counsel to break his promise to the jury. Stated another way, the course chosen had "some reasonable basis designed to effectuate his client's interest." Commonwealth v. Howard, supra. l~ Trial Transcript, pp. 453-454. 14 Trial Transcript, p. 461. is Trial Transcript, p. 462. 16 Trial Transcript, p. 460. 17 We note that defense counsel did, later in the proceedings, break his promise and make several objections when he felt that the prosecutor was taking undue advantage of the situation. See Transcript of P. C.R.A. Proceedings, p. 74. NO. 98-2334 CRIMINAL Failure to Highlight the Evidence. Petitioner's final contention is that his trial counsel's closing argument failed to highlight two crucial pieces of evidence, i.e. the statement of Amy Wisnall and the presence of the victim's blood on the back of petitioner's trousers. He argues that both pieces of evidence corroborate his contention that the victim was the aggressor on the We are not persuaded that either of these claims entitles petitioner to night in question. relief. Ms. Wisnall testified that the aggressor had a knife and wore a checkered shin. The defendant had a knife, but was not wearing a checkered shin. Defense counsel argued that Ms. Wisnall's testimony was "100 percent consistent with self-defense."~8 He did not emphasize the description of the aggressor's clothes "because it was dark.''~9 Rather, he emphasized that, in the dark, the baton could easily have been mistaken for a knife.2° Finally, the presence of the victim's blood on the back of defendant's trousers added nothing to the case. By all accounts, petitioner and the victim were wrestling on the ground at the time, or immediately after, the injury was inflicted. It is logical to assume that the blood could have gotten on the back of the victim's trousers during that wrestling match, regardless of whose version of events the jury believed. Counsel cannot be deemed to have been ineffective for failing to make a frivolous argument. ~8 Trial Transcript, p. 448. 19 Transcript of P.C.R.A. Proceedings, p. 73. 20 Trial Transcript, p. 448, of P.C.R.A. Proceedings, p. 73. NO. 98-2334 CRIMINAL In discussing PCRA claims of ineffective assistance of counsel, our Supreme Court noted that "they are extraordinary assertions that the system broke down." Commonwealth v. Rivers, 567 Pa. 239, 786 A.2d 923,929 (2001). It went on to say: It may be that a person convicted of a crime has had several lawyers and the performance of these lawyers was in some respect imperfect. But a criminal defendant is not entitled to a perfect trial and it seems likely that if the accused were to be represented [sic] by fifty lawyers, some aspect of the performance of each could be decried as "ineffective." Both the accused and society are entitled to a final determination, an end to the proceedings that will be opened only in the case of a colorable due process claim significantly implicating the truth determining process, which, were it unaddressed by the Court, could have the effect of imprisoning an innocent person. Id. at 932. In the instant case, we are satisfied that there was neither a breakdown in the system nor the imprisoning of an innocent man. For the reasons set forth above, we will deny petitioner's request for relief under the Post Conviction Relief Act. ORDER OF COURT AND NOW, this 21st. day of APRIL, 2003, Petitioner's claims for relief under the Post Conviction Relief Act are DENIED. By the Court, District Attorney James K. Jones, Esquire 7 Irvine Row Carlisle, Pa. 17013 :sld /s/Edward E. Guido Edward E. Guido, J.