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HomeMy WebLinkAboutCP-21-CR-1353-2003 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. ANTONIO DWAYNE McADOO: OTN: H296491-6 CP-21-CR-1353-2003 IN RE: DEFENDANT'S POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., August 1, 2005 In this criminal case, a jury found Defendant guilty of Person Not To Possess or Use Firearms, a felony of the second degree, 1 Firearms Not To Be Carried without a License, a felony of the third degree,2 Recklessly Endangering Another Person, a misdemeanor of the second degree,3 and Simple Assault, a misdemeanor of the second degree.4 He was sentenced to an aggregate period of imprisonment in a state correctional institution of not less than 24 months nor more than 48 months. 5 From the judgment of sentence, Defendant filed a direct appeal to the Pennsylvania Superior Court.6 The issue pursued on appeal was insufficiency of the evidence. 7 Twice, while the case was on direct appeal, the Defendant filed a pro se Motion for Post Conviction Collateral Relief. 8 The court dismissed both motions without 1 Act of December 6, 1972, P.L. 1482, ~l, as amended, 18 Pa. C.S. ~6105(a)(1) (2005Supp.). 2 Act of December 6, 1972, P.L. 1482, ~l, as amended, 18 Pa. C.S. ~6106(a)(1) (2005 Supp.). 3 Act of December 6, 1972, P.L. 1482, ~l, as amended, 18 Pa. C.S. ~2705. 4 Act of December 6, 1972, P.L. 1482, ~l, as amended, 18 Pa. C.S. ~2701(a)(1), (3) (2005 Supp.). 5 Order of Court, December 16,2003. 6 Notice of Appeal, January 13, 2004. 7 Defendant's Concise Statement of Matters Complained of on Appeal, filed January 28,2004. 8 See Motion for Post Conviction Collateral Relief, filed May 26, 2004; Motion for Post Conviction Collateral Relief, filed July 22, 2004. prejudice as premature. 9 The Superior Court affirmed the judgment of sentence on February 28, 2005.10 On March 23, 2005 the Defendant again filed a Motion for Post Conviction Collateral Relief regarding his conviction. 1 1 At a hearing on this petition under the Post Conviction Relief Act (P.C.R.A.),12 Defendant's newly appointed counsel indicated that the issues which Defendant had raised initially in the filing would not be pursued, but she secured permission to orally amend the petition 13 to raise two other issues regarding the guilty firearm verdicts: [W]hether Defendant's trial counsel was ineffective in failing to file a timely postsentence motion challenging the weight of the evidence, and in failing to appeal from the Court's denial of Defendant's postsentence motion nunc pro tunc raising the issue of weight of the evidence. . ..14 F or the reasons stated herein, Defendant's request for post conviction collateral relief will be denied. STATEMENT OF FACTS As a result of an incident occurring on May 11, 2005, Defendant Antonio Dwayne McAdoo was charged with Robbery, Simple Assault, Recklessly Endangering Another Person, Firearms Not To Be Carried without a License, Person Not To Possess, Use, Manufacture, Control, Sell or Transfer Firearms, Terroristic Threats, and Theft by Unlawful Taking or Disposition. IS At a jury trial, the Commonwealth presented two eyewitness victims, Kevin Shughart16 and Robin Stone,17 who testified that at 2: 15 a.m.18 on Sunday, May 11, 9 See Order of Court, June 2,2004; Order of Court July 29,2004. 10 Commonwealth v. McAdoo, No. 104-MDA-2004 Criminal Court, slip opinion 4 (Pa. Super. February 28, 2005). 11 See Motion for Post Conviction Collateral Relief, filed March 23, 2005; P.C.RA. Hearing 18 (hereinafter P.C.RA. ~. 12 Pennsylvania Rules of Criminal Procedure, Rule 908. 13 P.C.RA. 3-5. Defendant gave his assent to counsel's position in this regard. P.C.RA. 4. 14 Order of Court, June 16,2005; see also P.C.RA. 4. 15 Information, filed August 21,2003. 16 NT. 58, Trial (hereinafter NT. ~. 2 2003,19 Defendant and another man confronted them as they approached the entrance to Mr. Shughart's apartment building in Carlisle, Pennsylvania?O According to various testimony of Mr. Shughart and Ms. Stone, the confrontation proceeded as follows: Defendant approached Mr. Shughart and Ms. Stone,21 demanding of Mr. Shughart, "give me your shit"22 or "where your shit?"23 Mr. Shughart responded that he had nothing?4 Defendant yanked Ms. Stone's purse from her shoulder and tossed it to his companion?5 With Mr. Shughart and Ms. Stone backed up against a wall,26 Defendant repeated his earlier demand27 and Mr. Shughart again demurred. 28 Defendant then drew what Ms. Stone described as a six-to-eight-inch handgun29 and fired a shot from it. 30 He proceeded to frisk Mr. Shughart and procured Mr. Shughart's wallet. 31 Defendant struck Mr. Shughart with the gun,32 and then pointed the gun at Ms. Stone from a distance of one foot.33 Defendant withdrew to a parked car,34 17 NT. 25. 18 NT. 27, 61. 19 NT. 25-26, 59. 20 NT. 32, 60-61, 63-64. 21 NT. 32-33, 65, 67. 22 NT. 65, 68, 72. 23 NT. 32-33. 24 NT. 35, 68-69. 25 NT. 37, 71. 26 NT. 35, 71. 27 NT. 35, 71-72. 28 NT. 35, 72. 29 NT. 35, 42. 30 NT. 36, 65, 67-68. 31 NT. 34, 37, 73, 77. 32 NT. 36, 38, 65, 69, 73, 112. According to Ms. Stone, Defendant first struck Mr. Shughart in the back of the head (NT. 36) and then punched Mr. Shughart in the stomach and mouth (NT. 38). According to Mr. Shughart, Defendant first punched him in the mouth with the gun (NT. 69) and then struck him in the back of his head with the gun (NT. 76). 33 NT. 37, 69, 102. 3 turned and once again pointed the gun at Mr. Shughart and Ms. Stone,35 and fled in the 36 car. The Commonwealth also produced two third-party witnesses who were in the vicinity of the crime scene, Shandi Harder37 and Emily Bear. 38 They testified to hearing a loud bang on the occasion in question. 39 Finally, the Commonwealth also called Detective Jeffrey Kurtz, of the Carlisle Police Department,40 who testified that a search of the crime scene by police failed to produce the gun.41 Detective Kurtz did indicate that Ms. Stone's purse was found in Harrisburg, Pennsylvania, within three to four blocks of Defendant's residence42 and that the parked car which Defendant used belonged to Defendant's uncle. 43 Defendant testified at trial to the following effect: Shortly before the confrontation, in front of the Mr. Shughart's apartment building, Mr. Shughart had attempted to buy drugs from Defendant while at the Blessed Oliver Plunkett, a bar in Carlisle, Pennsylvania.44 Defendant had declined to sell Mr. Shughart drugs.45 After this incident Defendant left the bar with an "old acquaintance,,46 from "around town,,47 and went to the house of Shandi Harder.48 A short time later, Defendant and his acquaintance 34 NT. 76-77. 35 NT. 38-39, 97-98. 36 NT. 39. 37NT. 12, 16-18. 38 NT. 111. 39 NT. 12, 112. 40 NT. 94. 41 NT. 102. 42 NT. 100. 43 NT. 97-98. 44 NT. 121-22. 45 NT. 122-23. 46 NT. 123, 128. 47 NT. 128. 48 NT. 123. 4 left Ms. Harder's house.49 They immediately ran into Mr. Shughart and Ms. Stone.50 Mr. Shughart again attempted to buy drugs from Defendant,51 at which point Defendant elbowed Mr. Shughart to fend off what he perceived as harassing conduct. 52 Neither Defendant, nor anyone else, had a gun on this occasion, according to Defendant. 53 The Commonwealth and Defendant stipulated that Defendant's criminal record included a conviction for a drug offense which made it unlawful for him to receive a license to carry, or to possess, a firearm. 54 Following deliberations, the jury found Defendant guilty of Simple Assault, Recklessly Endangering Another Person, Firearms Not To Be Carried without a License, and Person Not To Possess or Use Firearm, and not guilty of Robbery, Terroristic Threats, and Theft by Unlawful Taking or Disposition.55 On December 16, 2003, he was sentenced as indicated above. 56 Defendant, through his trial counsel, filed a notice of appeal from the judgment of sentence challenging the sufficiency of the evidence to sustain the guilty verdicts. 57 In a 1925 opinion addressing the issue of sufficiency of the evidence, the court stated: In the present case, it is believed that the evidence ... regarding Defendant's conduct with a handgun and his prior conviction amply supported a finding, beyond a reasonable doubt, that Defendant had both possessed and used a firearm, as defined in the Crimes Code, on the occasion in question, while under a statutory disqualification from doing so. The events as described further supported a finding that he 49 NT. 127. 50 NT. 125-26. 51 NT. 126. 52 NT. 122. 53 NT. 127. 54 NT. 118-19. 55 NT. 175-78. 56 NT. 180; see Order of Court, December 16,2003. 57 Notice of Appeal, January 13,2004. 5 had carried the firearm both concealed upon his person and in a vehicle, while not licensed to do so. Similarly, the evidence that Defendant backed Ms. Stone into a wall with a loaded gun pointed at her from a foot away and fired the weapon in a residential neighborhood supported a conclusion, beyond a reasonable doubt, that he had, at least recklessly, engaged in conduct which may have placed another in danger of death or serious bodily injury. Finally, the evidence that Defendant had beaten Mr. Shughart to the point of causing disorientation, visual disturbances and a bloody mouth, and that he had menaced Mr. Shughart and Ms. Stone with a loaded gun, was sufficient to support a finding, beyond a reasonable doubt, that he had committed simple assault in any of the forms enumerated above. 58 While the case was on direct appeal, Defendant, through his trial counsel and without permission of the court, filed a "Post-Sentence Motion Nunc pro Tunc" in an attempt to raise the issue of weight of the evidence for purposes of the appeal, 59 stating: 3. As defense counsel was working on the Concise Statement of Matters complained of on Appeal today, she realized that an appeal because the verdict was against the weight of the evidence was more fitting to the facts of the case, rather than an appeal based on the insufficiency of the evidence. 4. As a result of this realization, defense counsel is now filing this post-sentence motion (necessary to preserve this issue for appeal) nunc pro tunc.60 The motion was denied, in part because the court had been divested of jurisdiction by Defendant's appeal. 61 In a footnote the court stated, in addition: "Without ruling upon the merits of Defendant's weight-of-the-evidence argument, the court would note that the plausibility of such an argument in this case, involving two eyewitness, is not immediately apparent. ,,62 Defendant's counsel did not appeal the Order of Court denying 58 Commonwealth v. McAdoo, No. 21-CR-1353-2003 Criminal Court, slip opinion 7 (Cumberland County May 18,2004). 59 See Defendant's Post-Sentence Motion Nunc pro Tunc, filed January 20,2004. 60 Defendant's Post-Sentence Motion Nunc pro Tunc, filed January 20,2004. 61 See Order of Court, January 28,2004. 62 Id. 6 the "Post-Sentence Motion Nunc pro Tunc." Defendant subsequently filed the Motion for Post Conviction Collateral Relief sub judice, seeking a new trial and release from custody and discharge based on ineffective assistance of counsel. 63 A hearing on the petition was held on June 16, 2005. At the hearing Defendant's P.C.R.A. counsel elicited the following testimony, inter alia, from Defendant's trial counsel: Q: Did you feel that the weight of the evidence regarding the gun was worthy of a guilty verdict? A: If you are asking me about the jury's decision, I mean, I thought that they had thought it through. I mean it was an impossible issue on appeal, it was - I didn't think it was a strong issue, and I felt that likely it would be upheld by the Superior Court, the issue of the jury, but - the decision of the jury - but that doesn't mean I wouldn't appeal.64 Trial counsel stated that after filing a notice of appeal based upon insufficiency of the evidence she had concluded that a better issue would have been the weight of the evidence. 65 She also stated that her omission in this regard was a mistake, not a 66 strategy. DISCUSSION As a general rule, in order to be eligible for post conviction collateral relief based upon inadequate representation, "the petitioner must plead and prove by a preponderance of the evidence... [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." Act of May 13, 1982, P.L. 417, 92, as amended, 42 Pa. c.s. 9 9543(a)(2)(ii). There are three elements a petitioner must prove to establish ineffectiveness of counsel upon which relief can be granted. Commonwealth v. Blount, 538 Pa. 156, 647 63 See Motion for Post Conviction Collateral Relief, filed March 23,2005. 64 P.C.RA. 8-9. 65 P.C.RA. 9. 66 P.C.RA. 11. 7 A.2d 199 (1994); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2025, 80 L. Ed. 2d 674 (1984). First, the "underlying claim [must be] of arguable merit." Blount, 538 Pa. 156, 163, 647 A.2d 199, 203. Second, the counsel's action or inaction must not have been grounded on any "reasonable basis designed to effectuate [the client's] interest." Id at 163, 647 A.2d at 203. Third, "counsel's ineffectiveness [must have] prejudiced [the client]." Id at 163, 647 A.2d at 203. Prejudice in this context generally means that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2025, 2064, 80 L. Ed. 2d 674, 693 (1984)). These elements in the context of the present case will be reviewed hereafter. Failure to file post sentence motion based on weight a/the evidence. First, it does not appear to the court that the underlying weight-of-the-evidence argument was of arguable merit in this case. The test to evaluate the weight of the evidence presented at trial is whether the ''jury's verdict [was] so contrary to the evidence as to shock one's sense of justice." Commonwealth v. Manchas, 430 Pa. Super. 63, 71, 633 A.2d 618,622 (1993) (quoting Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1156 (1986)); Commonwealth v. Gamber, 352 Pa. Super. 36, 506 A.2d 1324 (1986). In seeking a new trial on the basis of a challenge to the weight of the evidence, a defendant must show that the evidence was "so umeliable and/or contradictory as to make any verdict based thereon pure conjecture." Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976) (citations omitted). The two firearm charges67 of which Defendant was found guilty were: Person Not To Possess or Use Firearms, Section 6105(a)(I) of the Crimes Code, 67 The two other charges of which Defendant was found guilty were: Recklessly Endangering Another Person, Act of December 6, 1972, P.L. 1482, ~l, as amended, 18 Pa. C.S. ~2705 and Simple Assault, Act of December 6,1972, P.L. 1482, ~l, as amended, 18 Pa. C.S. ~2701(a) (2005 Supp.). Neither of these convictions is at issue at this stage of the case. See P. C.RA. 4-7. 8 A person who has been convicted of [any of certain offenses, including a drug offense punishable by a term of imprisonment exceeding two years] ... shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth. 68 and Firearms Not To Be Carried without a License, Section 6106(a)(1) of the Crimes Code, [With certain exceptions not here relevant], any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.69 A "firearm" is defined as: Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches )?O It is a well settled that in a jury trial the jury is the trier of fact. Commonwealth v. Salter, 2004 P A Super. 318, ,-r8, 858 A.2d 610, 615 (2004). As the trier of fact, the jury is to evaluate the credibility of witnesses and the weight of the evidence presented. Id at ,-r9, 858 A.2d at 615; See also Commonwealth v. Lehr, 400 Pa. Super 514,518,583 A.2d 1234, 1236 (1990) ("Matters of credibility are vested in the sound discretion of the trier of fact.. 00"). The trier of fact is "free to believe all, part or none of the evidence." Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). In this case the jury chose to believe the victims' accounts of the incident and to credit the third party witnesses' testimony (which tended to collaborate the presence of a firearm). 68 Act of December 6, 1972, P.L. 1482, ~l, as amended, 18 Pa. C.S. ~6105(a)(1) (2005 Supp.). 69 Act of December 6, 1972, P.L. 1482, ~l, as amended, 18 Pa. C.S. ~6106(a)(1) (2005 Supp.). 70 Act of December 6, 1972, P.L. 1482, ~l, as amended, 18 Pa. C.S. ~6102. 9 Second, trial counsel's inaction did not lack a "reasonable basis" from her client's standpoint. See Blount, 538 Pa. 156, 163, 647 A.2d 199, 203. As was suggested at the post conviction relief hearing, and as the court more expressly noted in its order dated January 28, 2004, weight-of-the-evidence was not a realistic theory on which to proceed. Counsel is not required to make frivolous arguments. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967); see also Commonwealth v. McClendon, 495 Pa. 467,470-71,434 A.2d 1185, 1187 (1981). Third, counsel's alleged ineffectiveness did not prejudice Defendant. See Blount, 538 Pa. 156, 163,647 A.2d 199,203. Defendant did not provide any proof that, but for counsel's error, the outcome would have been different. Stated otherwise, a new trial would not have been warranted or granted in response to a weight-of-the-evidence post sentence motion. Failure to appeal denial of post sentence motion nunc pro tunc. In Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999), the Pennsylvania Supreme Court held that counsel was ineffective for withdrawing a perfected direct appeal, and, therefore, that the defendant was eligible for relief under the Post Conviction Relief Act. The Court stated, [W]here 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 ... 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. 71 The Court in Lantzy emphasized, however, that the principle recited above does not mean that a defendant can "pursue frivolous claims on appeal, or demand that counsel pursue every possible course of action or press every point." Id at 227 n.8, 736 A.2d at 572 (citation's omitted). 71 Commonwealth v. Lantzy, 558 Pa. 214,226-27, 736 A.2d 564,572 (1999). 10 In order to succeed on a claim of ineffectiveness of counsel based solely upon a failure to appeal, without regard to whether the appeal would have had merit, it is necessary that defendant have requested counsel to appeal. Commonwealth v. Knighten, 1999 PA Super. 291, ,-r13, 742 A.2d 679, 682 (1999); see also Commonwealth v. Lehr, 400 Pa. Super. 514, 517, 583 A.2d 1234, 1235 (1990). Although it may be assumed that Defendant requested, or at least expected, his trial counsel to file an appeal in his case, there is no evidence in the record that he had directed her to specifically include in the appeal a challenge to the court's denial of the untimely weight-of-the-evidence motion. In the absence of such evidence, Defendant's request for relief based upon the failure to file an appeal from the denial of the "motion nunc pro tunc" is dependent upon proof that such an appeal would have possessed arguable merit and that the failure to file it was prejudicial. Three points suggest themselves. First, allowance of nunc pro tunc filings is generally dependent upon "extraordinary circumstances involving fraud or some breakdown in the administrative process [or court's operation which] caused the delay in filing, or where non-negligent circumstances related to the appellant ... caused the delay." J A. v. Dep't of Public Welfare, 873 A.2d 782, 785 (Pa. Commw. 2005) (citing Cook v. Unemployment Camp. Bd of Review, 543 Pa. 381, 383, 671 A.2d 1130, 1138 (1996)); Raheem v. Univ. of the Arts, 2005 Pa. Super. 134, ,-r8, 872 A.2d 1232, 1234 (2005). Second, an appeal from a judgment of sentence divests a trial court of jurisdiction. See Commonwealth v. Reefer, 2003 PA Super. 38, ,-r1O, 816 A.2d 1136, 1140 (2003). Third, as noted previously in this opinion, an award of a new trial based on a challenge to the weight of the evidence would not have been legally justifiable. See Manchas, 430 Pa. Super. 63, 71, 633 A.2d 618, 622. Given these principles, the court's ruling could not have been otherwise and the failure to appeal from the ruling caused no prejudice to Defendant. For the foregoing reasons, the court is unable to agree with Defendant that his trial counsel has been shown to have been ineffective with respect to either her failure to file a 11 post sentence motion based on weight-of-the-evidence or her failure to appeal the denial of the post sentence motion nunc pro tunc. The following order will therefore be entered: ORDER OF COURT AND NOW, this 1st day of August, 2005, upon consideration of Defendant's Motion for Post Conviction Collateral Relief, as amended, following a hearing held on June 16, 2005, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Forest Dean Morgan, Certified Legal Intern Jaime M. Keating, Chief Deputy District Attorney and Supervising Attorney Office of the District Attorney F or the Commonwealth Susan K. Pickford, Esq. 3344 Trindle Road Camp Hill, PA 17011 Court-Appointed Counsel for the Defendant Antonio Dwayne McAdoo, FQ-8188 P.O. Box 9999 LaBelle, P A 15450-0999 Defendant [Certified and Regular Mail] 12 13 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. ANTONIO DWAYNE McADOO: OTN: H296491-6 CP-21-CR-1353-2003 IN RE: DEFENDANT'S POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. ORDER OF COURT AND NOW, this 1st day of August, 2005, upon consideration of Defendant's Motion for Post Conviction Collateral Relief, as amended, following a hearing held on June 16, 2005, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, 1. Wesley Oler, Jr., 1. Forest Dean Morgan, Certified Legal Intern Jaime M. Keating, Chief Deputy District Attorney and Supervising Attorney Office of the District Attorney F or the Commonwealth Susan K. Pickford, Esq. 3344 Trindle Road Camp Hill, PA 17011 Court-Appointed Counsel for the Defendant Antonio Dwayne McAdoo, FQ-8188 P.O. Box 9999 LaBelle, P A 15450-0999 Defendant [Certified and Regular Mail]