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HomeMy WebLinkAboutCP-21-CR-2315-2002 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. SHARIFF L. LA YTON CP-2l-CR-23 15-2002 IN RE: OPINION PURSUANT TO P A. R.A.P. 1925 OLER, 1., November 23,2004. In this Post Conviction Relief Act case, Defendant, who was found guilty following a jury trial in 2003 of robbery, theft by unlawful taking, simple assault, and conspiracy to commit those offenses, has filed an appeal to the Pennsylvania Superior Court from a denial of his petition for post conviction relief. 1 The issue raised by the appeal has been expressed by Defendant in a statement of matters complained of on appeal as follows: Whether the [PCRA] court erred in denying the Appellant's PCRA Petition finding that Appellant's trial counsel was not ineffective in failing to pursue a direct appeal concerning the admissibility of a ski mask and in failing to investigate a potential trial witness? This opinion in support of the court's denial of Defendant's petition under the Post Conviction Relief Act is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of an armed robbery in Hampden Township, Cumberland County, Pennsylvania, on the morning of Tuesday, July 23, 2002,3 Defendant was 1 Defendant's Notice of Appeal, filed October 26, 2004. Defendant's petition under the Post Conviction Relief Act was entitled "Motion for Post Conviction Collateral Relief." 2 Defendant's Statement of Matters Complained of on Appeal Pursuant to PARAP. 1925(b), filed November 8, 2004. 3 NT. 13, 24, 27-28, Commonwealth v. Layton, No. 02-2315 Criminal Term (Cumberland Co.) (hereinafter NT. , Trial). charged with robbery, theft by unlawful taking, simple assault, and conspiracy to commit those offenses.4 A jury trial was held on the charges on March 5-7,2003. At the trial, the Commonwealth's witnesses included Defendant's uncle, who testified that he had been Defendant's accomplice in the commission of these crimes. 5 Another witness was a bank teller who described the robbery as having been carried out by two masked men, wearing masks and gloves, one armed with a double-barreled, sawed-off shotgun and one with a handgun. 6 She described the masks as being similar to "fencing" or "Ninja" masks.7 A second bank teller further described the unusual nature of the masks: Q When the individuals came into the credit union that particular morning, describe how they were dressed? A They had black masks on. They were similar to the fencing masks, they were like a [shiny] material. The face wasn't-just like a sleeve or something like that, it was round. THE COURT: Are you describing an area on your face? AYes. It was like oval in shape on the front. It was kind of laid flat and then covered the whole head and neck. 8 Neither victim identified either of the perpetrators. F or purposes of exemplifying the type of facial disguise utilized in the crimes, an exhibit in the form of a mask of a certain type was identified by the alleged accomplice and the tellers as being of the type worn in the robbery. 9 Although the mask was not initially one of the items sent out with the jury during 4 See Information, filed December 12,2002. 5 NT. 92-131, Trial. 6 NT. 26-35, Trial. 7 NT. 26, 34, Trial. 8 NT. 46, Trial. 2 deliberations,lO it was subsequently sent out upon the jury's request to see it and another exhibit, with a cautionary instruction approved by both the prosecution and defense: We will send these exhibits out with you. I do want to caution you with respect to the evidentiary use of the mask. The sole purpose for which you may consider the mask, which is Commonwealth's Exhibit 6, is as an example of the type of garment worn by the robbers, according to the testimony of one or more of the witnesses. There was no evidence admitted in this case that that mask or any mask was found on the person of or in the possession of this Defendant. 11 The robbers escaped with over $40,000.00 in cash.12 Unfortunately for Defendant, on the way out of the bank they dropped a bag with his fingerprint on . 13 It. Defendant did not present any witnesses at trial. 14 Following deliberations, the jury found him guilty of the offenses enumerated above. 15 Defendant, whose prior record included a robbery conviction, was sentenced to a period of not less than six-and-a-half years nor more than thirteen years in a state correctional institution.16 No appeal was filed from the judgment of sentence. 17 9 NT. 46-47, 101-02, Trial. The admission of this item into evidence was not objected to. NT. 187, Trial. 10 See NT. 197-200, Trial. 11 NT. 200-01, Trial. 12 NT. 89, Trial; Order of Court, May 20, 2003 (restitution figure set at $45,270.00 in sentencing order) . 13 NT. 32, 180, Trial. 14 NT. 192, Trial. One exhibit was admitted on behalf of Defendant. Id. 15 NT. 202-05, Trial. 16 Order of Court, May 20, 2003; see Order of Court, June 9, 2003 (modification of sentence at Defendant's request to merge certain offenses). 17 NT. 11, Post Conviction Relief Act Hearing, September 22, 2004 (hereinafter NT. ----" PCRA Hearing) . 3 On May 18, 2004, Defendant filed a petition under the Post Conviction Relief Act based upon alleged ineffective assistance of counsel, inter alia, and requesting relief in the form of ( a) a release from custody and discharge, (b) a new trial, and (c) a correction of sentence.18 The office of the Public Defender for Cumberland County was appointed to represent Defendant on the petition,19 and a hearing on the petition was held before the undersigned judge on September 22, 2004. At the commencement of the hearing, Defendant's PCRA counsel defined the general issue being pursued as ineffective assistance of counsel, and the particular grounds encompassed by that claim to be ( a) trial counsel's failure to file an appeal as requested from the judgment of sentence,20 (b) his failure to recognize as error the jury's consideration of a certain mask introduced into evidence,21 and (c) his failure to call a physician who performed a colonoscopy on Defendant about two weeks before the robbery.22 In its capacity as trier-of-fact, the court found the credible evidence at the hearing relevant to these points to be as follows: Defendant's court-appointed trial counsel was an experienced criminal defense attorney in Cumberland County, having been a lawyer for over thirty years?3 At some point prior to trial, Defendant mentioned to his counsel that he 18 Defendant's Motion for Post Conviction Collateral Relief, at 2-3,5, filed May 18,2004. 19 Order of Court, May 25,2004. A motion to withdraw as counsel filed by the Public Defender's Office shortly before the hearing, accompanied by a "no-merit letter," was denied by the court on the ground that an issue of credibility appeared to be involved in the matter. Order of Court, September 21,2004. 20 NT. 4-5, PCRA Hearing. 21 NT. 5, PCRA Hearing. 22 NT. 4, PCRA Hearing. 23 NT. 21, PRCA Hearing. 4 had undergone a colonoscopy, with some surgical involvement, about two weeks before the robbery?4 The colonoscopy was associated with a gunshot wound that he had suffered in another incident more than a year prior to the robbery?5 Defendant did not request his counsel to call the physician who had performed the colonoscopy as a witness,26 there was no evidence presented that Defendant was not ambulatory as a result of the procedure at the time of the robbery, and Defendant's counsel was understandably not motivated to call a witness who would reveal that his client had been shot the prior year?7 Following the jury's verdict, and prior to sentencing, Defendant's counsel met with him and indicated that he did not believe an appeal would be successful.28 In particular, Defendant's counsel felt that the mask did not lend itself to any viable appellate issues.29 At no time, however, did he say that he would not file an appeal if directed by Defendant to do SO,30 and at sentencing the court engaged in an extensive colloquy with Defendant, which included information as to his right to appeal and to free counsel on appeal.31 Defendant advised his counsel that he would file his own appeal,32 and directed him to surrender the paperwork in the case?3 Immediately after the sentencing, his counsel sent him a letter acknowledging Defendant's decision to represent himself on any appeal and describing the appropriate appellate procedure 24 NT. 7, 14,22, PCRA Hearing. 25 NT. 14-15, PCRA Hearing. 26 NT. 22, PCRA Hearing. 27 NT. 23, PCRA Hearing. 28 NT. 10,21, PCRA Hearing. 29 NT. 24-25, PCRA Hearing. 30 NT. 22, PCRA Hearing. 31 NT. 18-19, PCRA Hearing. 32 NT. 26-27, PCRA Hearing. 33 NT. 11, PCRA Hearing. 5 to be followed.34 Defendant also received paperwork from his file.35 Defendant, did not, however, file an appeal.36 At the conclusion of the PCRA hearing, the court took the matter under advisement. 37 On September 29, 2004, it issued an order denying Defendant's petition under the Post Conviction Relief act. 38 From this order, Defendant has appealed.39 DISCUSSION Statement of Law Ineffective assistance of counsel-general rules. "It is by now axiomatic that a defendant in a criminal case is entitled to effective representation at trial." Commonwealth v. Collins, 519 Pa. 58, 63, 545 A.2d 882, 885 (1988). With respect to a claim of ineffective assistance, however, "Pennsylvania courts presume that an accused's counsel is effective and place the burden of proving ineffectiveness on the convicted defendant." Packel & Poulin, Pennsylvania Evidence 148 (2d ed. 1998). The Pennsylvania Supreme Court has stated a general rule for the analysis of a claim of ineffective assistance of counsel: There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission. . . .. If he did, our inquiry ends. If not, the [ defendant] will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice. . . . 34 Commonwealth's Ex. 1, Post Conviction Relief Act Hearing, September 22,2004. 35 NT. 19, PCRA Hearing. 36 NT. 13, 19, PCRA Hearing. 37 Order of Court, September 22, 2004. 38 Order of Court, September 29,2004. 39 Defendant's Notice of Appeal, filed October 26,2004. 6 Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); see Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996), cert. denied, 520 U.S. 1121, 117 S. Ct. 1257, 137 L. Ed. 2d 337 (1997); Commonwealth v. Hess, No. 94-1437 Criminal Term (Cumberland Co., March 11, 1997) (Sheely, P.1.). The Pennsylvania Superior Court has noted in this context that "it is not enough for [a defendant] to show that he suffered some prejudice as a result of counsel's action or inaction, but rather that counsel's action or inaction so affected the trial itself ('the truth-determining process') that the result of the trial is inherently umeliable." Commonwealth v. We inder, 395 Pa. Super. 608, 627, 577 A.2d 1364, 1374 (1990).40 The burden upon a petitioner seeking relief under the Post Conviction Relief Act based upon ineffective assistance of counsel is thus as follows: The petitioner must... show, by a preponderance of the evidence, ineffective 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. This requires the petitioner to show: (1) that the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999). "[C]ounsel cannot be found ineffective for failing to follow a futile course of action. . .." Commonwealth v. Schultz, 707 A.2d 513, 517 (Pa. Super. Ct. 1997). As a general rule, an attorney's decision not to pursue a frivolous issue 40 The Pennsylvania Supreme Court has held that the standard for proving ineffectiveness under the Post Conviction Relief Act is the same as the standard for proving inadequate representation on direct appeal. See Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). Under the Post Conviction Relief Act, a person seeking relief on the basis of ineffective assistance of counsel must prove, by a preponderance of the evidence, that the "conviction or sentence resulted from. . . ineffective assistance... 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." Act of May 13, 1982, P.L. 417, ~2, as amended, 42 Pa. C.S. ~9543(a)(2)(ii). 7 does not constitute inadequate representation. See Commonwealth v. Harvey, 365 Pa. Super. 296, 299, 526 A.2d 516, 518 (1987). It has often been stated that a "defendant is not entitled to and cannot realistically expect to receive a perfect trial but only a fair trial." Commonwealth v. Todt, 318 Pa. Super. 55, 69, 464 A.2d 1226, 1233 (1983). Failure of counsel to file requested appeal. A special rule applies where an attorney has failed to file a requested direct appeal in a criminal case: [W]e hold that, where there is an unjustified failure to file a requested direct appeal, the conduct of counsel falls beneath the range of competence demanded of attorneys in criminal cases, denies the accused the assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, as well as the right to direct appeal under Article V, Section 9, and constitutes prejudice for purposes of Section 9543(a)(2)(ii) [of the Post Conviction Relief Act]. Therefore, in such circumstances, and where the remaining requirements of the PCRA are satisfied, the petitioner is not required to establish his innocence or demonstrate the merits of the issue or issues which would have been raised on appeal. Commonwealth v. Lantzy, 558 Pa. 214, 227, 736 A.2d 564, 572 (1999). Evidence. The admission of evidence, and the determination of exhibits to be sent out with the jury during deliberations, are matters within the sound discretion of the trial court. Commonwealth v. Doyen, 848 A.2d 1007 (Pa. Super. Ct. 2004) (admission of evidence); Commonwealth v. Causey, 833 A.2d 165 (Pa. Super. Ct. 2003) (items to go out with jury). "All relevant evidence is admissible, except as otherwise provided by law." Pa. RE. 402. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Pa. RE. 401. Application of law to facts. In the present case, with respect to trial counsel's failure to file a direct appeal from Defendant's judgment of sentence, the evidence at the PCRA hearing did not lead to a finding that the attorney had 8 refused an instruction from Defendant to do so. To the extent that Defendant's claim is otherwise premised, it must be said to lack merit in the sense of being factually unsupported. With respect to the failure of Defendant's counsel to appreciate and pursue issues of admissibility and possession by the jury during deliberations of the mask, it may be noted that the nature of the mask was clearly relevant to the prosecution's case as tending to demonstrate why no victim was able to identify Defendant as the perpetrator. The cautionary instruction provided by the court in connection with its consideration by the jury would appear to have adequately limited the jury's use of the item to a proper purpose. It thus did not appear from the PCRA evidence that pursuit of the aforesaid issues by Defendant's counsel would have been more than a futile exercise, and in that sense Defendant's PCRA claim lacked merit. It addition, in view of the cautionary instruction, this merely demonstrative piece of evidence was not of sufficient prejudice to Defendant to be classified as one which, with reasonable probability, changed the outcome of the trial. Finally, with respect to the conduct of Defendant's counsel in connection with the physician who performed a colonoscopy upon Defendant, the credible PRCA evidence did not support a conclusion that he was asked to investigate the procedure in terms of its usefulness to Defendant's case, that he was on notice of facts that would have rendered such an expenditure of time and resources reasonable, that his reluctance to place in evidence the fact that his client had been shot the previous year was strategically misguided, or that, had an investigation been undertaken it would have, with reasonable probability, affected the outcome of the trial in Defendant's favor. As a consequence, none of the requisites for relief on a claim of ineffective assistance of counsel were met as to this issue. For the foregoing reasons, the court was unable to agree with Defendant that relief under the Post Conviction Relief Act should have been granted, based 9 upon ineffective assistance of counsel, in the form of a release from custody and discharge, a new trial, or a correction of sentence. BY THE COURT, 1. Wesley Oler, Jr., 1. Jaime M. Keating, Esq. Chief Deputy District Attorney Dean E. Reynosa, Esq. Assistant Public Defender 10