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HomeMy WebLinkAbout95-0949 criminalCOMMONWEALTH Vo MICHAEL ANDREW NOLL IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-0949 CRIMINAL TERM PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT BAYLEY, J., September 20, 1999:- Petitioner, Michael Andrew Noll, filed this petition for relief under the Post- Conviction Relief Act 42 Pa.C.S. § 9541 et seq. Counsel was appointed and given time to file an amended petition. Petitioner then sought to discharge that attorney and represent himself. That request was granted and petitioner filed an amended petition pro se. Hearings were conducted on the amended petition and briefs have been filed. HISTORY OF THE CASE On November 21, 1995, petitioner, while represented by a public defender, was convicted of aggravated assault in violation of the Crimes Code at 18 Pa.C.S. Section 2702. Petitioner was found guilty under Section 2702(a)(1), in that he attempted to cause serious bodily injury to another, or caused such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life, and he was found guilty under Section 2702(a)(4), in that he attempted to cause or intentionally or knowingly caused bodily injury to another with a deadly weapon. On December 19, 1995, petitioner was sentenced to imprisonment in a state correctional institution for a term of not less than eight years nor more than twenty years to date 94-0949 CRIMINAL TERM from May 31, 1995. On January $, 1996, petitioner pro se filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. Petitioner, inter alia, attacked trial counsel's effectiveness. Trial counsel filed a motion to withdraw which was granted. On January 29, 1996, petitioner filed a second pro se direct appeal to the Superior Court of Pennsylvania. New counsel was appointed to represent him. On March 12, 1996, this court entered an order, supported by a written opinion, that upheld the judgment of sentence. On June 23, 1997, the Superior Court of Pennsylvania affirmed? The Superior Court rejected petitioner's claims that his trial counsel was ineffective for failing (1) to allow him to testify in his own behalf, (2) to call Kendall Schaeffer, Tim Yantz, and two officials and three inmates from the Cumberland County Prison to testify at trial, (3) to cross-examine William (Scott) Jenkins about his blood alcohol level and whether he swung a bat at petitioner, and (4) to object to the jury charge on self defense. A petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on April 27, 1998.2 THE EVIDENCE AT TRIAL In the opinion filed by this court on March 12, 1996, we set forth the evidence at trial in a light most favorable to the Commonwealth: Kimberly K. Schaeffer lives in a home she owns at 551 Lexington Avenue, 700 A.2d 1027 (Pa. Super. 1997). 553 Pa. Super. 680 (1998). -2- 94-0949 CRIMINAL TERM Upper Allen Township. Defendant, Michael Andrew Noll, started to live with her in that home in January, 1994. He moved out in August, 1994, and returned his house key to Schaeffer. Schaeffer terminated her relationship with defendant against his wishes. Schaeffer felt sorry for defendant but hoped that they could remain friends because she did not want him as an enemy. Between August, 1994, and May, 1995, Schaeffer allowed defendant to stay in her home overnight on a couple of occasions. They were intimate just before Christmas 1994, but not thereafter. Four to six weeks before May 31, 1995, Schaeffer came home and found defendant in her house. Defendant told Schaeffer that she had left the door open, which she had not, and she found a key to the door in his trousers. She took the key. Schaeffer, who was seeing someone else, reminded defendant that their relationship was over. Defendant threatened to hurt her if he found her with somebody else, stating that until he wanted their relationship to be over, it could not be over. On May 29, 1995, defendant came to Schaeffer's house. He was angry, and when Schaeffer would not tell him who she was seeing, he threatened to kill her and the person she was seeing when he found out who it was. Schaeffer told a friend that if she was ever killed, Noll had been threatening to kill her. On May 31, 1995, Schaeffer came home with William S. Jenkins, Jr., the man whom she had been seeing. Schaeffer and Jenkins were in separate vehicles, and Jenkins parked his truck in her driveway. When they went inside the house, Schaeffer jammed chairs against the locked front and back doors because she was afraid that defendant might have made another key to her house. Schaeffer and Jenkins went into her bedroom and she locked the bedroom door. Between 1:30 a.m. and 1:45 a.m., defendant, using a key to unlock a door to the house, was able to get the chair away from the door. He jimmied the lock on the bedroom door with a skewer, and came into the room where Schaeffer and Jenkins were in bed together. Defendant had a large knife in his hand that he had picked up in Schaeffer's kitchen. Before he broke into the bedroom, he called a friend from Schaeffer's telephone. He heard a pre-recorded message on an answering machine: "This is Tim and... We're not in. Leave your name and message after the beep and we'll get back to ya." Defendant left the following message: It's Mike Noll. Uh, this is for posterity. It's about a quarter after one. I just came home. Some guy's truck in my fuckin driveway. I think it's fuckin Scott Jenkins. I think he's fucking my old lady. They got fuckin chairs propped up -3- 94-0949 CRIMINAL TERM against the door. I got in any way. I think he's back in the bedroom with my fuckin woman. I'm goin back to see what happens. If I get fuckin shot or somethin, if anything goes down, this is for the record. I'm going in on my girlfriend with some other guy. I don't know what's gonna happen but you guys do now. Thanks. What happened was that defendant went into the bedroom with the knife behind his back. Jenkins saw defendant standing by the bed. Defendant told him to get his clothes on and get out. Jenkins put his clothes on and saw that defendant had a knife. Jenkins picked up a T-ball bat that Schaeffer's daughter had left in the bedroom, and told defendant to get out. Jenkins would not leave Kimberly Schaeffer in the house with defendant, and he hoped that when defendant saw the bat, he would leave. Defendant and Jenkins argued, then defendant raised the knife up, moved toward Jenkins, and brought it down stabbing Jenkins in the arm. Jenkins grabbed defendant, but defendant pulled the knife out of his arm and stabbed him in the left side. Jenkins went down and his intestines spilled out onto the floor. Schaeffer called 911. Defendant was at the scene when the police arrived. Jenkins was taken to the hospital where he stayed for ten days. He was operated on and a portion of his intestines were removed. He had a colostomy for three months before his intestines were reconnected in a second operation. He also suffered a severed nerve in the arm that causes weakness in his hand. (Footnote omitted.) POST-CONVICTION CLAIMS Petitioner maintains in this post-conviction proceeding that: (1) He was denied a constitutional right to counsel after sentencing. (2) He did not waive his constitutional rights to counsel after sentencing. (3) The denial of his right to counsel after sentencing deprived him of due process. (4) Appellate counsel was ineffective for failing to properly raise the violation of his right to counsel and to due process after sentencing. -4- 94-0949 CRIMINAL TERM (5) He did not knowingly, voluntarily or intelligently waive his constitutional right to testify at trial. (6) He was denied the effective assistance of both trial counsel and Appellate counsel. (7) Appellate counsel was ineffective for not properly raising trial counsel's failure to independently investigate and properly present the defense. (8) Appellate counsel was ineffective for not properly raising or preserving the issue of trial counsel's ineffectiveness in failing to confront or impeach the prosecution's witnesses. (9) Appellate counsel was ineffective for not raising or preserving the issue of trial counsel's ineffectiveness in failing to request a jury instruction concerning the proper use of the "Other Crimes/Bad Acts Evidence." (10) Appellate counsel was ineffective for not raising or preserving the issue of trial counsel's ineffectiveness in failing to object to the prosecution's improper use of prior consistent statements and/or in failing to request a proper jury instruction. (11) He was denied a due process right to a fundamentally fair trial because he was unfairly and prejudicially surprised by the improper variance between the charge and the Commonwealth's proof at trial, and was therefore denied an opportunity to respond or otherwise defend himself. (12) Appellate counsel was ineffective for not raising or preserving trial counsel's ineffectiveness in failing to object to the improper introduction of an inaudible tape -5- 94-0949 CRIMINAL TERM recording of a hearsay transcript. (13) Appellate counsel was ineffective for not raising or preserving the issue of the trial court's improper jury instruction that even if 551 Lexington Avenue was not his dwelling on May 31, 1995, he had an interest in the Schaeffer's house which would have given him under any circumstance any right to break into the bedroom or order Jenkins out of the house. LAW In Commonwealth v. Crawley, 663 A.2d 676 (Pa. 1995), the Supreme Court of Pennsylvania stated: To be eligible for PCRA relief the burden rests upon the PCRA petitioner to establish by a preponderance of the evidence that his sentence resulted from one or more of the enumerated errors or defects listed in 42 Pa.C.S. § 9543(a)(2) and that the issues which he raised have not been previously litigated. Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467 (1995). An issue has been previously litigated if the highest appellate court in which a petitioner could have had review has ruled on the merits of the issue or the issue has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 Pa.C.S. § 9544. If the issue has not been finally litigated, a petitioner must also prove that the issue has not been waived or that, if waived, the conditions in either 42 Pa.C.S. § 9543(a)(3)(ii) or (iii) have been met. Finally, a petitioner has the burden of proving by a preponderance of the evidence that the failure to litigate the issue prior to, or during trial, or on direct appeal could not have resulted from any reasonable tactical decision of counsel. 42 Pa.C.S. § 9543(a)(4). (Footnotes omitted.) Waiver of a previously unlitigated issue is excused under 42 Pa.C.S. Section 9543(a)(3)(iii) where the petitioner can demonstrate that his trial or appellate counsel was ineffective. Commonwealth v. Peterkin, 538 Pa. 455 (1994). In -6- 94-0949 CRIMINAL TERM Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999), the Supreme Court of Pennsylvania recently stated that the test for proving ineffective assistance of counsel in a PCRA petition is: The petitioner must still 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. What we hold today is that, where the petitioner has demonstrated that counsel's ineffectiveness has created a reasonable probability that the outcome of the proceedings would have been different, then no reliable adjudication of guilt or innocence could have taken place. (Emphasis added.) DISCUSSION We will review petitioner's thirteen claims seriatim. As to claims numbers 1, 2, 3 and 4, petitioner was represented by court-appointed counsel at trial and sentencing, and he was represented by new court-appointed counsel on his direct appeal to the Superior Court of Pennsylvania. His claims for post-conviction relief regarding his court-appointed representation are without merit. Claim number 5 is that petitioner did not knowingly, voluntarily or intelligently waive his constitutional right to testify at trial. That issue was finally litigated when it was rejected by the Superior Court of Pennsylvania. Furthermore, based on the testimony in this post-conviction proceeding, we find that defendant knowingly, voluntarily and intelligently waived his constitutional right to testify at trial. By deciding -7- 94-0949 CRIMINAL TERM not to testify, petitioner had the luxury of having his position that he stabbed William Jenkins in self-defense go to the jury without his having to weather cross-examination. After he was arrested, petitioner gave a tape-recorded statement to the police that was admitted into evidence by the Commonwealth. In that statement petitioner said that Kimberly Schaeffer was his girlfriend and that on May 31, 1995, he was living with her in her house. When he arrived at that house on May 31 st, he saw Scott Jenkins' vehicle in the driveway. He was mad because another man was with his girlfriend. He said the following occurred when he went into the bedroom: A: But I'm goin in there. I'm not just gonna walk away and leave. So I open up the bedroom, takes, you gotta pop. Q: Okay. A: You know those things push. Well, I usually slide... Q: Right there on our door? A: Yea. Exactly. Exactly. Q: Okay. A: So I popped the door open. I go in and I got a knife in my hand but I kept it behind my back the whole time. I went in and here's Kim naked in bed. The first thing I see is my girlfriend totally naked. Q: Was she awake? A: They're, they're fucking. Q: Okay. A: I mean, gosh, they were fucking. They were having sex. Q: Okay. A: He's on top of her fucking back there. Scott's got his head from what I, he had a shirt on I think. Q: Okay. A: And nothin else. Klm was totally naked. And when they heard me comin in they like, you know, they jumped, you know, Scott rolls over onto my side of the fucking bed that I sleep on. He rolls over onto and I was like Scott. The first thing I said was, they were like oh, shit, you know. They were busted. They knew they were caught in the act. They were like, I was like Scott just get the fuck up, get dressed and fuckin leave. Get the fuck up. I'm standing over him. And I'm watching him. I'm -8- 94-0949 CRIMINAL TERM staying close enough that if he goes for a gun or somethin, I, I was gonna fuckin, you know... Q: So you were standing... A: do something. Q: Were you, ^: I was... Q: Which side of the bed? A: I walked around to his side of the bed. Q: Okay. A: Cause he's the one I'mworried about. Q: Alright. A: I'm not worried about Kim pulling out a gun and shooting me. Q: So from where you walk in the door, you went around. A: He was on the far side, yea. Q: to the, okay. A: I'll put it to you this way but the tape recorder won't show this but... Q: That's alright. A: I came in like this and I was at the foot of the bed. When, you know how you come in it takes you and then by the time you see what's goin on you're like in the middle. Q: Right. A: I walked around to the right. You know what I mean? Q: On the far side of the bed.., the door. A: Which side he rolled over on. Q: Okay. A: And I'm standing over him and I'm thinking this mother fucker's gonna go for a gun or something. I'm, you know what I mean, I'm gonna defend myself. It's that simple. He's fuckin my girlfriend. I mean ill was a nut I'm just gonna yell, just go in there and attack him. But I told him, I said Scott just get your fucking shit and get the fuck out of here. And fuckin he's like okay, okay, at first. He said okay, okay and he fuckin pulls up his pants, gets his, his pants were laying on the floor and shit. I'm watchin him cause I'm expecting him like to grab somethin. I'm watchin him the whole time. Well he puts his pants on and, you know, he puts his boots on and he gets up. Alright. And he actually, he's leaving now. He walks, he's like this on the bed and I'm here. Q: Mm-hmm. A: Watching him get, and he walks over this way by my dresser right here. Q: Okay. A: And there's a bat, I don't know where the fuck it came from. It ain't -9- 94-0949 CRIMINAL TERM my bat. It's red and uh, like a tanish color, yellow color handle. He picks it up. And he's like put the fuckin knife down. I was like Scott, just get the fuck out of here. The only reason why I, I had the knife was because he was still there. Once he'd have left I'd have dropped, you know what I mean. Me and Kim would have had it out but I wasn't gonna fuckin stab her or anything. And he's like put the knife down. Scott, I said I told you, you get the fuck out. I don't want, you know, hurt ya. I don't wanna do anything to you. You know. Just fuckin leave. I just caught you fuckin my old lady. If I wanted, if I was gonna stab you, I'd have stabbed you when you're laying naked on top of her. Q: Okay. A: Just fucking leave and he goes put the knife down, put the knife, and he's like this, he cocked like, you know, like he's... Q: About how far away... A: fucking, uh, you know what I mean? Q: About how far away from you? A: About from me to you with a bat like this. Q: So about three, four feet. A: Well, put it this way. Anytime he wanted to swing he was gonna hit me. Q: Okay. A: I'm not dropping that knife. I'm like Scott, just fuckin leave. He's already dressed now. Q: And at this time where do you have the knife? He's got the bat. A: Right here like this. Q: Okay. A: I'm holding it, you know, at my side. Q: But he could see it. A: Oh, yea. Q: Okay. A: I'm holding it, you know, at my side. Q: But he could see it. A: Oh, yea. Q: Okay. A: You know what I mean. Cause I didn't know what he was gonna pull. I, I gave him a chance to get up, get dressed and leave and the mother fucker once he got up and got dressed he goes over and gets a bat and then stand there and cocks at me. Q: Okay. A: And he's like drop it. I was like just leave. Get the fuck out of here. The only reason I had the fuckin knife in the first place cause I was afraid -10- 94-0949 CRIMINAL TERM of what he might do. Q: Mm-hmm. A: And he wouldn't, you know, he's standing here, I'm standing there. Nobody's giving an inch. And I was like Scott, just leave. Then he starts screaming. He starts, Ahh, and I'm like Scott, just fuckin leave, just fuckin, and he was like whack and he hits me in the arm. Q: Your left arm? A: Yea. I don't know if there's a mark or bruise or nothin, you know what I mean. He hits me in my arm right here. I moved away from it. Q: Pull your shirt. A: Maybe there's, I don't if it marked.., so fast. Q: Well, we're gonna take a look here. A: I, I, I, he'd didn't hit me that hard. He tried to hit me hard but I got away, you know what l mean, I ducked. Q: Okay. A: I ducked. I, I've been in a lot of fights Officer. I don't know if there's any marks on me at all but he tried to fuckin hit me and he hit me and connected barely. It didn't hurt that much. Q: Okay. Right now there's no marks but make sure... A: Yea. Q: before we leave you go A: It didn't... Q: we check again. A: It didn't break any, you know what I mean. I'm obviously okay. Q: Okay. A: And I watched him. When he swung he did connect. Q: Okay. A: He did hit me but it wasn't... Q: Did it knock you down or? A: No, what it did was, it's hard to explain. He was like this. Q: Okay. A: Okay. And when he swung I like ducked and it, you know, it hit me but not with the full force. Q: Okay. A: that he could have hit me with. And he went with it and I watched him. Q: Okay. A: Alright. And he still tried to hit me with it and that's what went in my mind. I just, I flashed. I figured I gotta defend my, I'm not gonna let this guy hit me in the fuckin head without having a good swing. Q: You had the knife in your right hand? -11- 94-0949 CRIMINAL TERM A~ Q: A: Q: A: Q: A: Q: A: My right hand, yes, Sir. Do you remember... I stabbed him in his left side then. Okay. We're, we were struggling. Okay. He had the bat trying to hit me again and again. Okay. Alright, he swung first and I stabbed him. Ali's I remember is once. And I might have stabbed him tw, I don't know. We was wrestling around. He's trying to hit me with the bat. I'm tr, you know... Q: Okay. A: Fuck that. Fuck that. I'm not letting this guy bust my skull open after I catch him fuckin my girlfriend, you know. Lay me the fuck out. Cause I know how things will end up, you know. Q: Mmm. A: You know, with me on the bottom. Q: Okay. A: And then once I stabbed him and he dropped I was like, you know what I mean, I told you to get the fuck out of here Scott. I didn't realize how bad I hurt him. And I saw the blood and shit. Claim number 6 is that petitioner was denied the effective assistance of both trial court and appellate counsel. The claim is nonspecific and need not be addressed. Claim number 7 is that appellate counsel was ineffective for not properly raising trial counsel's failure to independently investigate and properly present his defense. Petitioner notes that after he was arrested and was at the police station, a police officer at approximately 3:30 a.m. took seven photographs of what petitioner maintains were his "still developing injuries." He maintains that when he was committed to the Cumberland County Prison at 9:45 a.m., he had developed a bruise on the left side of his ribcage. Petitioner states that he showed these bruises to his attorney at his preliminary hearing on June 5th. Petitioner argues that the police photographs which -12- 94-0949 CRIMINAL TERM show a red mark on his body do not adequately depict the injuries he received and that defense counsel was ineffective for failing to conduct an independent investigation to document the extent to which he was bruised in an altercation with Jenkins. He argues that the true nature of the physical injuries that were inflicted on him by Jenkins would have corroborated his statements to the police officer after the incident that he was attacked by Jenkins. Petitioner argues in his brief that "Had such evidence been presented, it is reasonably probable that it could have caused the jury to disbelieve the Commonwealth's witnesses and acquit the [Petitioner]." We do not agree with this conclusion. Even if it had been shown to the jury that bruises on petitioner from his involvement with Jenkins had swelled after the pictures were taken at the police station, we conclude that counsel's failure to produce such evidence would not have created a reasonable probability that the outcome of the trial would have been different. Claim number 8 is that appellate counsel was ineffective for not properly raising or preserving the issue of trial counsel's ineffectiveness in failing to confront or impeach the prosecution's witnesses. Petitioner's argument involves the testimony of Kimberly Schaeffer. He maintains that trial counsel did not effectively utilize a statement that Kimberly Schaeffer made to the police after the incident in order to point out discrepancies and thus impeach her trial testimony. We have examined Kimberly Schaeffer's pre-trial statement and her testimony at trial. There are some discrepancies as there often are when questions were asked differently and with the passage of time. Trial counsel could have used the prior statement in an effort to impeach the credibility -13- 94-0949 CRIMINAL TERM of Schaeffer. However, nothing in Schaeffer's prior statement is so inconsistent with her trial testimony that considering the central issue at trial, of whether there was proof beyond a reasonable doubt that petitioner stabbed William Jenkins in self-defense, that we would conclude that trial counsel's failure to utilize the prior statement of Kimberly Schaeffer for impeachment purposes created a reasonable probability that the outcome of the trial would have been different. Claim number 9 is that appellate counsel was ineffective for not raising or preserving the issue of trial counsel's ineffectiveness in failing to request a jury instruction concerning the proper use of the "Other Crimes/Bad Acts Evidence." Petitioner committed the aggravated assault in this case on May 31, 1995. Evidence was presented at trial that petitioner started to live with Kimberly Schaeffer in her house in January, 1994. He moved out in August, 1994 and returned his house key to her. Between August, 1994 and May, 1995, Schaeffer allowed petitioner to stay in her home overnight on a couple of occasions. They were intimate just before Christmas 1994, but not thereafter. Four to six weeks before May 31, 1995, Schaeffer found petitioner in her house and discovered a key to her house in his trousers. Petitioner threatened to hurt her if he ever found her with somebody else, stating that until he wanted their relationship to be over, it would not be over. On May 29, 1995, petitioner came to Schaeffer's house, he was angry, and when she would not tell him who she was seeing, he threatened to kill her and the person she was seeing when he found out who it was. Schaeffer told a friend that if she was ever killed, Noll had been threatening to kill her. -14- 94-0949 CRIMINAL TERM In Commonwealth v. Schwartz, 419 Pa. Super. 251 (1992), the defendant was convicted of criminal trespass, two counts of disorderly conduct and resisting arrest arising out of an incident in which he broke into the home of Joanne Kalin. Evidence was admitted at trial that showed that defendant made repeated harassing phone calls to Joanne Kalin for over a month prior to breaking into her house. The Superior Court noted that the exception justifying the general prohibition against the admission of prior bad acts applies to bad acts that tend to establish motive, intent, absence of mistake or accident, a common scheme, plan or design, or the identity of a person charged with the commission of the crime. A court must balance a need for the evidence against its potential prejudice in order to determine its admissibility. The Superior Court concluded that the trial court did not abuse its discretion in admitting the evidence of the defendant's past acts as showing his motive for breaking into the victim's home. The same reasoning applies to the facts in the case sub judice. Petitioner had threatened to kill Kimberly Schaeffer and any person she was seeing if he found out who it was. On May 31, 1995, petitioner broke into Schaeffer's house and came close to killing the man she was with. Petitioner's prior bad acts were admissible to show motive, intent, the absence of a mistake or accident and a plan which he subsequently executed. The probative value of such evidence outweighed any potential prejudice. Petitioner cites Commonwealth v. Billa, 521 Pa. 168 (1989), for the proposition that his trial counsel was ineffective for failure to seek a cautionary charge with respect to the evidence of his prior threats to kill Kimberly Schaeffer and -15- 94-0949 CRIMINAL TERM any person she was seeing if he found out who it was. In Billa, the defendant was charged with killing Maria Rodriguez. The Commonwealth introduced evidence that the defendant had raped another woman, Florence Morales, two months prior to the murder of Rodriguez. The Supreme Court of Pennsylvania agreed that the evidence of the prior sexual assault was relevant and of important evidentiary value to establish motive or intent and to negate defendant's claim of an accidental killing of Rodriguez. Notwithstanding, citing Commonwealth v. Claypool, 508 Pa. 198 (1985), the Court concluded that it was reversible error for the trial court not to have provided a cautionary instruction which explained to the jury the limited purpose for which the evidence of the prior crime was admitted. In Claypool, defendant was convicted of rape. The victim testified that she did not scream or holler or otherwise resist because the defendant told her that if she did he would shoot her and that he had been in jail before for rape. Concluding that the reference to having been in jail for another rape was admissible, the Supreme Court still reversed the conviction because the trial court did not give a cautionary instruction as to the reason why the reference to defendant having been in jail for the previous rape was admitted. The facts in the case sub judice, are like those in Schwartz rather than those in Billa and Claypool. Billa and Claypool involve the admission into evidence of prior crimes committed by the defendants whose victims were different than the victims in the cases for which they were then being tried. Like Schwartz, the evidence admitted in this case was defendant's bad acts with respect to having threatened to kill Kimberly -16- 94-0949 CRIMINAL TERM Schaeffer and any person she was seeing. Petitioner was not previously arrested or convicted with respect to any of those bad acts. Petitioner's threats to Kimberly Schaeffer formed the sequence of events and natural development of his relationship with her that led up to the aggravated assault on May 31, 1995. See, Commonwealth v. Seiders, 531 Pa. 592 (1992). No past record of defendant was admitted which would require a cautionary instruction; therefore, trial counsel was not ineffective in not seeking such an instruction. Claim number '10 is that appellate counsel was ineffective for not raising or preserving the issue of trial counsel's ineffectiveness in failing to object to the prosecution's improper use of prior consistent statements and/or in failing to request a proper jury instruction. In its case in chief the Commonwealth called Cindy Karns as a witness. Karns was the ex-wife of Jenkins but also a friend of Kim Schaeffer. In late April or early May, 1995, Karns testified that Schaeffer called her and told her that Michael Noll was in her house and had threatened her with a hammer. Karns testified that Schaeffer had previously told her of an incident when Noll had threatened her. Karns further testified that a couple days prior to May 31, 1995, Schaeffer told her that if anything ever happened to her where she ended up being killed to make sure everybody understood Michael Noll had been threatening to do that and it wasn't an accident. Citing Commonwealth v. Hutchinson, 521 Pa. 482 (1989), petitioner argues that the introduction of this testimony was improper and that his counsel was ineffective for failing to object or in failing to ask for a cautionary instruction. -17- 94-0949 CRIMINAL TERM In Hutchinson, the defendant was arrested for rape and robbery. While in custody he purportedly made the following statement to a police officer: "1 have been at my grandmother's house on Carmac Street and was going home when a cop stopped me. I don't know anything about robbing or raping anyone." At trial, defense counsel during cross-examination attempted to elicit the statement from the detective to whom it was made. The court sustained an objection of the District Attorney. No further attempt to introduce the statement was made even after the Commonwealth made efforts toward impeaching defendant's credibility and that of his mother and grandmother. The Supreme Court of Pennsylvania framed the issue as whether trial counsel provided effective assistance when he failed to introduce the prior consistent statement uttered by defendant. The Court stated: Ordinarily, that one has always said the same thing is subsumed in their testimony and need not be buttressed by evidence of prior consistency, unless that consistency, by allegation of recent fabrication is challenged. When challenged, evidence of prior and continued consistency may be offered. Evidence of prior consistency, absent such challenge is not required and is essentially cumulative and repetitious. To regularly allow testimony of prior consistency may easily become a device to merely augment the credibility of witnesses by others. In the present case, although appellee's credibility was partially impeached by several inconsistencies which were brought out during cross-examination, at no time during his trial were there any allegations of recent fabrication. Furthermore, the statement at issue was made after appellee's arrest: clearly not at a time when the effect of the statement could not have been foreseen .... Because appellee's statement did not qualify as an admissible prior consistent statement appellee's underlying claim was without merit. The testimony of Cindy Karns was admitted to show that Kimberly Schaeffer -18- 94-0949 CRIMINAL TERM feared petitioner prior to the night of May 31, 1995. Petitioner's position at trial that was introduced through his tape recorded statement to the police on the night of the incident was that he was living with Schaeffer and that he stabbed William Jenkins in self- defense. The testimony of Kimberly Schaeffer was that petitioner was not living with her at the time and, because of her fear of him, when she brought William Jenkins to her house on May 31, 1995, she jammed chairs against both the front and back doors that were locked and locked her bedroom door. Petitioner's position at trial was that Kimberly Schaeffer was testifying from corrupt motives. The testimony of Cindy Karns was admissible. See Commonwealth v. l~illig, 264 Pa. Super. 199 (1979). The principle reason for excluding hearsay is the danger that the declarant's credibility cannot be assessed. Commonwealth v. Dean, 300 Pa. Super. 86 (1982). Here, the testimony of Kimberly Schaeffer was able to be assessed by the jury. However, even if the introduction of the testimony of Cindy Karns was in error it did not under the circumstances create a reasonable probability that the outcome of the proceedings would have been different. Claim number 11 is that petitioner was denied a due process right to a fundamentally fair trial because he was unfairly and prejudicially surprised by the improper variance between the charge and the Commonwealth's proof at trial, and was therefore denied an opportunity to respond or otherwise defend himself. Petitioner argues that these variances from the information charging him with aggravated assault involve the evidence that he broke into Kimberly Schaeffer's house, threatened her with -19- 94-0949 CRIMINAL TERM a hammer, threatened her in person and over the telephone, and threatened to kill her. Petitioner's claim is frivolous because such evidence was admissible to show motive, intent, the absence of mistake or accident and a plan which he subsequently executed. Claim number '12 is that appellate counsel was ineffective for not raising or preserving trial counsel's ineffectiveness in failing to object to the improper introduction of"an inaudible tape recording of a hearsay transcript." The statement that defendant made to Corporal James Adams of the Upper Allen Township Police Department on the night of the stabbing was tape recorded. A transcript of the tape was made and each juror was given a copy to follow as the tape recording was played for them. Neither the transcript nor the tape recording went out with the jury when they were deliberating. The tape recording, which we have listened to again, is completely audible. Petitioner is a fast talker and the transcript, which is accurate, assisted the jury as they listened to the tape recording. Utilizing this procedure for the introduction of this evidence was within the discretion of the trial judge. Commonwealth ¥. Rodriguez, 519 Pa. 415 (1988). Accordingly, trial counsel was not ineffective in not objecting to the procedure. Claim number '13 is that appellate counsel was ineffective for not raising or preserving the issue of the trial court's improper jury instruction that even if 551 Lexington Avenue was not his dwelling on May 31, 1995, he had an interest in the Schaeffer's house which would have given him under any circumstance any right to break into the bedroom or order Jenkins out of the house. After initially describing the elements of aggravated assault, the court charged: -20- 94-0949 CRIMINAL TERM The Commonwealth has the burden of proof beyond a reasonable doubt. That burden does not shift. And note I said that those are the elements of the offense including the burden on the Commonwealth to prove beyond a reasonable doubt that defendant acted without legal justification. That is what I am going to talk to you about in a moment. Legal justification is what a layman would call self-defense. Now, in this regard, deadly force is defined by the law as force which under the circumstances in which it is used is readily capable of causing death or serious bodily injury. The word dwelling, we've heard a lot about this place up on Lexington Avenue, right. It becomes important in this regard. The word dwelling under the law is defined as any building which is for the time being the home or place of lodging of the defendant. In this context, that would mean on May 31, 1995, which is the date of this incident. So this would be defendant's dwelling if at the time of the incident it was for the time being the home or place of lodging of defendant. So those are the definitions of deadly force and dwelling. However, I note for you that even if 551 Lexington Avenue was on May 31, 1995, the home or place of lodging of defendant, in other words, his dwelling under the law, still defendant had no ownership interest in Kimberly Schaeffer's house which would give him any right to break into a locked bedroom that she was in or any right to order William Jenkins out of Kimberly Schaeffer's house if Jenkins was invited there by Schaeffer who was the owner. Defendant had no right to do either. Now, with regard to deadly force in the context of justification under the law. Deadly force again being force which under the circumstances of which it is used is readily capable of causing death or serious bodily injury. Generally, under the law, the use of force upon or toward another person is justifiable when the defendant reasonably believes that the force used is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. That is the concept of meeting force with reasonable force to defend himself. The use of deadly force, however, involves another standard. This is the standard. Deadly force is not justifiable unless - and there are really three categories that I am going to talk about here - deadly force is not justifiable unless defendant reasonably believes that such deadly force is necessary to protect himself against death or serious bodily injury. That is standard number one. If defendant does not reasonably believe that deadly force is necessary to protect himself against death or serious bodily injury, then deadly force would not be justifiable. -21- 94-0949 CRIMINAL TERM If, however, you were to conclude he did, deadly force would still not be justifiable if either, one, defendant with the intent of causing death or serious bodily injury to Jenkins provoked the use of force against himself in the same encounter, or defendant knew that he would avoid the necessity of using such force with complete safety by retreating. However, defendant is not obligated to retreat from his dwelling unless he was the initial aggressor. With respect to this second provision, you must - if you reach this provision, you must determine if 551 Lexington Avenue was defendant's dwelling as I have defined it. If it was not, if it was not, defendant had a duty to retreat before using deadly force. If it was his dwelling, he would still have a duty to retreat if he was the initial aggressor. I told you a lot, didn't I? I told you a lot, so I am going to recapitulate here, and then I will go on a little more and then come back. First of all, on the basic principle of aggravated assault, in order to find this defendant guilty of aggravated assault, you must be satisfied that the Commonwealth has proven beyond a reasonable doubt that defendant without legal justification either attempted to cause serious bodily injury to William Jenkins or caused such serious bodily injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life, or that defendant attempted to cause or intentionally or knowingly caused bodily injury to William Jenkins with a deadly weapon. If the Commonwealth has proven those factors beyond a reasonable doubt, you should find defendant guilty; otherwise, you should find him not guilty. Now, remember my original lead into that said, accordingly, in order to find him guilty, you must be satisfied of those elements of that aggravated assault, which I read to you in which I reviewed to you initially, were proven beyond a reasonable doubt and that defendant without legal justification committed the crime. If you were to determine that the elements were not proven beyond a reasonable doubt, you would find defendant not guilty. If you would determine that the elements of aggravated assault as I defined them were proven beyond a reasonable doubt, then if the Commonwealth has also proven beyond a reasonable doubt that defendant did not act with justification, then you would find defendant guilty, otherwise, you would find him not guilty. That gets us into this issue of whether defendant in this case acted with lawful justification under the law or whether he did not. In that regard, I am going to review those factors with you again because I did tell you a lot quickly. First, we know what deadly force is. Deadly force is force -22- 94-0949 CRIMINAL TERM used which under the circumstances is readily capable of causing death or serious bodily injury. You know what a dwelling is now. A dwelling is a place, a building, which for the time being is the home or place of lodging of defendant. We know that even if 551 Lexington Avenue was on May 31, 1995, defendant's place of lodging, which is for you to determine whether it was or not, but even if it was, we know that he had no ownership interest in Kimberly Schaeffer's house which would have given him any right to break into the locked bedroom that she was in or any right to order William Jenkins out of Kimberly Schaeffer's house if Jenkins was invited there by Schaeffer. The reason is it is Schaeffer's house not his, even if it is his dwelling that he is living in at the time. We also know that the normal standards of meeting force with reasonable force applicable to situations that don't involve deadly force are different than when you get into a situation where you have deadly force used. Deadly force is obviously more serious force. It is force which is capable of inflicting death or serious bodily injury. Those special standards applicable to a determination of whether defendant's conduct was justifiable in this case are as follows. Deadly force is not justifiable, first of all, unless defendant reasonably believed that such deadly force is necessary to protect himself against death or serious bodily injury. If you found the other elements of aggravated assault, if you were to determine that defendant did not reasonably believe that such deadly force as you were to - if you were to determine he used it on William Jenkins, it was not necessary to protect himself from serious bodily injury, he would not have been justified in using it. If, however, you find the elements of aggravated assault and you did determine that defendant reasonably believed that such deadly force is necessary to protect himself against death or serious bodily injury, then you would still have to continue to answer at least one more question or two more questions if you are in that situation. I think you understand by me giving you all these possibilities I am not in any way suggesting to you what your verdict should be. I am giving you the law. You find the facts. You apply the law to the facts of this case. So to repeat, if you were to find that defendant did not reasonably believe that such deadly force is necessary to protect himself against death or serious bodily injury, he would not be justified. If you found he was, then you go on, because still deadly force is not justifiable if either, one, defendant did not have an intent of causing death or serious bodily -23- 94-0949 CRIMINAL TERM injury which provoked the use of force against himself in the same encounter. So if you would find that that was the case, deadly force would not be justifiable if you reach this stage two. But even if you reached this stage two and you found that defendant did not have an intent of causing death or serious bodily injury which provoked the use of force against himself in the same encounter, you would still then have to go to step three because still deadly force is not justifiable if defendant knew that he could avoid the necessity of uSing such force with complete safety by retreating. In a normal force situation, you are duking it out with somebody, right, you do not have a duty to retreat. You can meet force with reasonable force. But when deadly force is involved and you are in this situation, there can be a duty to retreat before you can be justified in using it. So deadly force is not justifiable in this third situation if defendant knew that he could avoid the necessity of using such force with complete safety by retreating. However, defendant is not obligated to retreat from his dwelling house. So if it is not his dwelling house, it is not justifiable under this standard. If it is his dwelling house, he is not obligated to retreat unless he was the initial aggressor. So even if it is his dwelling house, he still has to retreat if he is the initial aggressor. So with respect to this second provision - the third provision, actually, if you get to this when you are analyzing this, then you must determine, of course, if 551 Lexington Avenue was defendant's dwelling. If it was not, defendant had a duty to retreat before using deadly force. If it was, he still had a duty to retreat before using it if he was the initial aggressor. If you reach this third point and you find that he did not have a duty to retreat, you can find under those circumstances - and you reached this point, then his use of deadly force would be justified. But, again, I reiterate to you that in getting to stage three you have to first get by stage one, then state two, then to stage three. That is how it goes down the line. In his direct appeal to the Superior Court of Pennsylvania, that Court rejected petitioner's ineffective assistance of trial counsel claim based on the argument that "trial court failed to object to the jury charge on self-defense." The Superior Court held: After reviewing the jury charge as a whole, we find that the -24- 94-0949 CRIMINAL TERM charge explained adequately the defense of 'use of force in self- protection' as governed by 18 Pa.C.S.A. § 505. The trial court explained several times the statutory requirements of self-defense. Although the trial court inserted one erroneous word during its instructions, we find that the charge as a whole presented a clear and accurate explanation of the defense. Accordingly, we find no merit to appellant's final claim. (Emphasis added.) The charge on justification was not in error so defense counsel did not err in not objecting to the charge. For the foregoing reasons, the following order is entered. AND NOW, this ORDER OF COURT day of September, 1999, the petition of Michael Andrew Nell for post-conviction relief, IS DENIED. By t e~e Court ~ Edgar B. Bayley~. Jonathan R. Birbeck, Esquire Jaime M. Keating, Esquire For the Commonwealth Michael Andrew Nell, CX-5006, Pro se SCI Retreat 660 State Route 11 Hunlock Creek, PA 18621 :saa -25-