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HomeMy WebLinkAboutCP-21-CR-1958-2002COMMONWEALTH JACK N. WAULK, JR. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-1958-2002 IN RE: PETITION FOR POST-CONVICTION COLLATERAL RELIEF OPINION AND ORDER OF COURT Bayley, J., October 1, 2004:-- On January 22, 2003, Jack N. Waulk, Jr., was convicted by a jury of aggravated assault, a felony in the first degree.1 On March 18, 2003, he was sentenced to pay the costs of prosecution, make restitution in the amount of $178.40 to Gregory Bryan, $34,902.18 to Pennsylvania Blue Shield, $454.70 to the Pennsylvania Victims Compensation Program, and undergo imprisonment in a state correctional institution for a term of not less than six years or more than twenty years. With new counsel, he filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. On March 24, 2004, the Superior Court affirmed? On May 26, 2004, Waulk filed a petition for post-conviction collateral relief. An attorney was appointed to represent him. petition for post-conviction relief was filed. 2004. On June 25, 2004, a counseled amended A hearing was conducted on August 16, 18 Pa.C.S. § 2702(a)(1). 850 A.2d 16 (Pa. Super. 2004). CP-21-CR-1958-2002 Petitioner seeks a new trial on a claim that his trial counsel and appellate counsel were ineffective. In his amended petition, he avers: Trial counsel failed to call to testify on Waulk's behalf one Marty Frenden. Mr. Frenden was the bartender at Wanda's on the night of the incident involving Waulk and the victim Greg Bryan. Frenden provided a statement to the Commonwealth on the night of the incident, which was provided to Mulderig during discovery. Frenden, unlike the Commonwealth's witnesses, was in the best location to observe Waulk's actions toward Bryan, and nowhere in his statement does he mention repeated punching or kicking of Bryan by Waulk. Trial counsel also failed to object to Commonwealth's Exhibit 2. The exhibit, a depiction of the interior of Wanda's, did not show a pole located near the bar area. Had this pole been shown on the diagram or the diagram so corrected to indicate its presence, the jury could have considered whether Mr. Bryan's facial injuries were in fact caused by striking the pole, rather than Waulk's fist. Appellate counsel was ineffective because counsel "failed to ask for a post-sentence evidentiary hearing as it pertained to Frenden's testimony." In Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003), the Supreme Court of Pennsylvania stated: 42 Pa.C.S. § 9543(a)(2)(ii) requires a PCRA petitioner to "plead and prove by the preponderance of the evidence... [t]hat the conviction or sentence resulted from... [i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place." In Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001), we explained that, to be entitled to relief on a claim of ineffective assistance of counsel, the PCRA petitioner must satisfy a three-pronged test and demonstrate that: (1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of that counsel's deficient performance. See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (Footnote omitted.) -2- CP-21-CR-1958-2002 When represented on a direct appeal with different counsel than trial counsel, petitioner, in order to prevail on a layered ineffectiveness post-conviction claim sufficient to warrant relief if meritorious, must plead, present and prove the ineffectiveness of appellate counsel for failing to allege that trial counsel was ineffective and develop each prong of the Pierce test as to appellate counsel's representation. Id. In the case sub judice, appellate counsel did raise a claim in the direct appeal that trial counsel was ineffective.3 The Superior Court of Pennsylvania, citing the general rule set forth by the Supreme Court of Pennsylvania in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), and finding that there was no exceptions that general rule as set forth in Commonwealth v. Blick, 840 A.2d 1025 (Pa. Super. 2004), concluded: [w]e must dismiss Appellant's ineffective assistance of trial counsel claim without prejudice to Appellant's right to seek relief on this claim under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Accordingly, we must now analyze the current claim of ineffectiveness of trial counsel under the Pierce standards. As set forth in an opinion dated June 12, 2003, filed pursuant to Pa. Rule of Appellate Procedure 1925 on petitioner's direct appeal, the evidence at trial in a light most favorable to the Commonwealth was: GREGORY BRYAN testified that on June 27, 2002, he attended the graduation of his daughter from the Computer Leaning Center. The graduation was held in the ballroom of a Holiday Inn in Hampden Township, Cumberland County. Because of a severe thunderstorm, the 3 The other issues raised in the direct appeal were the sufficiency of the evidence to support the conviction of aggravated assault, and a challenge to the sentence. -3- CP-21-CR-1958-2002 electricity went out and the ceremony was cut short. Michelle Bryan, the daughter's mother and Bryan's ex-wife, was at the ceremony with her boyfriend, defendant, Jack Waulk. Gregory Bryan and defendant had never met. When the ceremony stopped, Bryan, his ex-wife and defendant agreed to have a drink together in a bar in the hotel. While in the bar, Bryan and his ex-wife talked about their daughter and their past while the men each drank two beers. Defendant became jealous, and said he heard Bryan was an "asshole." Bryan asked him where he heard that and defendant said, "1 check my women out very carefully before I make them my girlfriend." Bryan then told defendant that he heard from his daughter that defendant was an "asshole." He said, "This looks like it irritates you that I'm finally getting along with my ex-wife." Defendant said that it did. Bryan said, "1 really don't think that there is anything you're going to be able to do about it." Defendant said, "Why don't we go outside and I'll show you what I can do." Bryan said sarcastically, "Right." That is the last thing he remembered while at the bar. The following four witnesses who were in the bar did not know any of the persons involved in this incident. MICHELLE WALTER saw three people sitting across from her at the bar. She testified: The man fell off his barstool, and the man who was doing the hitting went over above him and proceeded to hit him with both hands. And, again, because of the height of the bar, similar to this, I could see him drawing his legs back to kick him but couldn't see the kicks actually hitting his body, but I assume he was hitting and kicking... A lot of times. I a couple of times winced and turned away because I wasn't counting, obviously, the punches. The witness was asked: And you said there was a motion that could have been a kick. Did you see more than one of those or just one? She answered "Yes, more than one." She further testified: "[t]he bartender kind of pushed him [defendant] away, and other men came out to kind of get him away from the man being hit .... " MALINDA SUE RETTINGER was with Michelle Walters. She testified that she saw the victim fall to the ground off a barstool backward and away from the bar. Defendant then bent over and hit the victim with his fists while the victim was on the ground. The bartender and some security guards pulled defendant away from the victim. Defendant was -4- CP-21-CR-1958-2002 "struggling and kicking, trying to like - almost like he was trying to continue to hit him and kick him." DON.ALE) $OBR testified that he was diagonally across the bar from the victim and defendant. He saw the victim slide off the barstool. Defendant was trying to strike him as he was going down. It took approximately four to five bouncers to get him out of the bar. ROBERT GEES"AM"AN testified that he was on an outside deck and heard a commotion. He looked into the bar and saw the victim on the floor in a "fetal position" with someone bent over him. He testified that "it looked like he was taking punches, maybe moving his feet, but I couldn't say for sure that's what he was doing. I saw that movement." Geesaman testified that bouncers took away the defendant and that it was hectic and there was a commotion in getting him out of the bar. As a result of this incident, Gregory Bryan's eye was ruptured, the retina was torn, and the lens was knocked into the middle of the eye. He had a broken nose, fractured right cheekbone, and broken facial bones in the area of his sinuses and eye. He had cuts on his chin and ear, the ear requiring stitches. He had scrapes on his elbows and one knee. He continues to have ringing in the injured ear. He is blind in his eye. At the time of trial he had three surgeries on his eye and there will be more. He will not recover full vision. DISCUSSION As part of discovery the District Attorney provided trial counsel with a copy of a statement written by the bartender, Marty Frenden, to the police on the evening of the incident, June 27, 2002: I was in the DJ both [sic] herd [sic] a thump one guy on the floor by SP-1 bar the other guy being push [sic] away by a girl I went over there to help her then I got the one guy to leave made it to the beer bar then I saw security they came over to help then the guy lost it then we had to drag him out side [sic].4 When called to testify at the post-conviction hearing, Frenden, when asked "did you see that fight," answered: "1 was there but I don't remember." He did remember -5- CP-21-CR-1958-2002 providing his written statement to the police after the incident. Frenden was asked if he remembered being contacted by appellate counsel and another person on April 23, 2003. He testified: "1 don't remember what I told them. I don't remember the incident. I don't remember," and "1 didn't want to sign anything because I did not remember anything, and I wasn't too sure about the stuff." Appellate counsel made the following notes of the discussion: On April 23 (yesterday) Bob Tarman and I spoke with Marty while he was working at Wanda's. Marty gave the following description of what he observed: Marty was in the DJ's booth, approximately 15 feet away from where the incident occurred. Prior to the incident, he said the three parties were sitting at the corner of the bar closest to the booth. The lights had gone out. There were not very many people in the bar at the time. When in the booth, Marty heard a thud and looked over the counter to see what happened. His vision to where the incident occurred was unobstructed. He saw Greg lying on the floor and Jack standing over him. He also heard a woman screaming. He immediately came around the counter and reached Jack within a matter of seconds. He did not see Jack kick or swing (try to hit) the man on the floor. According to Marty. [sic] Jack was still upright and bending slightly over Greg who was lying on the floor. Marty grabbed Jack from behind, apparently in a bear hug. Jack then took a swing at Marty but missed him. Marty began pulling Jack away and towards the exit. When he got approximately ten feet away, he saw three security guards coming toward him, so he handed Jack over to them. In Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997), the Supreme Court of Pennsylvania stated: In order to make a claim of ineffectiveness for failure to interview and/or present a witness, appellant must prove: (1) the existence and availability 4 The statement was unsigned. -6- CP-21-CR-1958-2002 of the witness; (2) counsel's awareness of, or duty to know of the witness; (3) the witness' willingness and ability to cooperate and appear on behalf of appellant; and (4) the necessity of the proposed testimony in order to avoid prejudice. In the present case, Marty Frenden was in the office of the District Attorney during the trial. The Commonwealth did not call him as a witness. Defense counsel had attempted to contact him prior to trial but was unsuccessful. He did not issue a subpoena for Frenden or was he aware that he was in the courthouse during the trial. Even if Frenden had testified for the defense consistent with what he said in his statement written on the evening of the incident, or if the written statement had been admitted into evidence as a hearsay exception as past recollection recorded, it did not add anything to the testimony of others? After being sucker punched, four witnesses testified that petitioner continued to attack Gregory Bryan and strike him with his fist while he was lying on the floor. Three witnesses testified that they saw defendant moving his feet in a kicking motion while Bryan was on the floor. In Frenden's statement to the police he said he heard a thump. When he looked, petitioner was 5 In Commonwealth v. SaI-Mar Amusements, Inc., 630 A.2d 1269 (Pa. Super. 1993), the Superior Court of Pennsylvania stated that there are two methods by which notes are utilized at trial. One is using them to refresh the memory of a witness. The other: [i]s past recollection recorded whereby a party, who offers a witness with no memory of an event, is permitted to admit into evidence a writing that memorializes the event. In the case of a past recollection recorded, it is the written document itself that is offered into evidence in place of the testimony of the witness, and the party offering the document is required to prove that the document/notes were made at or near the time of the event and while the witness had a clear and accurate memory of it. See Commonwealth v. Cooley, 484 Pa. 14, 398 A.2d 637, 641 (1979). -7- CP-21-CR-1958-2002 already being pushed away by a girl. He was not clear how long Bryan was on the floor before he looked to see the girl pushing petitioner away. Some people saw more of the incident than others. The failure of trial counsel to elicit this evidence did not prejudice petitioner in that it did not undermine the truth-determining process so that no reliable adjudication of guilt took place. -8- CP-21-CR-1958-2002 While the notes appellate counsel took from a discussion with Frenden on April 23, 2003, almost ten months after the incident, contained more detail than in the statement he made to the police on the day of the incident, it does not differ materially from his written statement. When Frenden looked, Bryan was already on the floor and petitioner was standing over him. It is not clear how long Bryan was on the floor before he looked. Under any circumstances, these notes taken long after the incident would not be admissible because Frenden testified at the post-conviction hearing that when he talked to counsel he "did not remember anything, and I wasn't too sure about the stuff." Counsel's recollection of the discussion did not refresh his recollection. Lastly, the evidence at the suppression hearing clearly showed that the pole that was not shown on the diagram marked as Exhibit Number 2, while in the area of the bar, was not near the place where Bryan fell after being struck by Waulk so that it could have caused any of his injuries. order is entered. AND NOW, this For all of the reasons set forth above, the following ORDER OF COURT day of October, 2004, the petition of Jack N. Waulk, Jr., for post-conviction relief, IS DENIED. By the Court, Edgar B. Bayley, J. -9- CP-21-CR-1958-2002 Jaime Keating, Esquire Assistant District Attorney Ellen K. Barry, Esquire For Petitioner :sal -10- COMMONWEALTH JACK N. WAULK, JR. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CP-21-CR-1958-2002 IN RE: PETITION FOR POST-CONVICTION COLLATERAL RELIEF ORDER OF COURT AND NOW, this day of October, 2004, the petition of Jack N. Waulk, Jr., for post-conviction relief, IS DENIED. By the Court, Jaime Keating, Esquire Assistant District Attorney Ellen K. Barry, Esquire For Petitioner :sal Edgar B. Bayley, J.