HomeMy WebLinkAbout95-9049 criminal appealJ. S22029/00
COMMONWEALTH OF PENNSYLVANIA
Appellee
VS
MICHAEL ANDREW NOLL,
Appellant
BEFORE:
IN THE SUPERIOR COURT OF
PEN N SYLVAN IA
No. 1637 MDA 1999
Appeal from the Order entered September 20, 1999
In the Court of Common Pleas of Cumberland
County, Criminal No. 95-0949
KELLY, MUSMANNO, ]]., and CIRILLO, P.].E.
MEMORANDUM' F I L. E D AUG ! 0 2000
Michael Andrew Noll appeals from the Order of the Court of Common
Pleas of Cumberland County entered on September 20, 1999, denying his
petition pursuant to the Post Conviction Relief Act (PCRA). 42 Pa.C.S.A.
§§9541-9543. We vacate and remand for a new trial.
On November 21, 1995 following a jury trial, Noll was convicted of
aggravated assault. See 18 Pa.C.S. § 2702. The jury made a special finding
that Noll had attempted to cause bodily injury to another with a deadly weapon
as proscribed under 18 Pa.C.S. § 2702(a)(4). The jury trial was held before
the Honorable Edgar B. Bayley.
Noll was convicted of aggravated assault and sentenced in the
aggravated range of the sentencing guidelines. Noll's trial counsel filed a
motion to modify sentence which was denied by the trial court. On January 3,
1996 Noll filed a notice of appeal that included an application for leave to
appeal in forma pauperis, a motion to appeal, and a motion for a new trial. In
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the motion for a new trial, Noll attacked the effectiveness of his trial counsel,
but did not seek the appointment of new counsel. Trial counsel for Noll, a
public defender, flied a motion to withdraw which was granted on 3anuary 18,
1996.
On 3anuary 29, 1996, Noll filed a pro se notice of appeal to this court and
asked for the assistance of counsel. On February 29, 1996, Gregory Abeln,
Esquire, was appointed to represent Noll. Pursuant to Pennsylvania Rule of
Appellate Procedure 1701, the trial court did not address the merits of Noll's
appeal because it stated that its jurisdiction had been divested by the
numerous appeals to this court. On 3une 23, 1997, we affirmed the trial
court's judgment of sentence.
Noll's petition on April 27, 1998.
The Supreme Court of Pennsylvania .denied
Noll filed a pro se petition pursuant to the
PCRA and requested that his third appointed counsel withdraw so that he could
proceed pro se. The PCRA hearings were held on December 9, 1998 and
December 18, 1998. The trial court denied Noll's petition for post-conviction
relief on September 20, 1999. This appeal followed.
Noll raises the following issues for our review:
I. Was appellate counsel ineffective for failing to properly raise the
violations of appellant's post-sentence rights, which deprived
appellant of his constitutional right to counsel to pursue ineffective
assistance claims in a motion for a new trial and denied appellant
due process of law?
II. Was appellate counsel ineffective for not properly raising trial
counsel's ineffectiveness in failing to independently investigate and
properly present the defense of this case?
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III. Was appellate counsel ineffective for not properly raising trial
counsel's ineffectiveness in failing to confront and/or impeach the
Commonwealth's witnesses with the following available evidence:
an audiotape of the prior inconsistent statements of a key
prosecution witness; a lab report indicating the victim's
intoxication; and prior inconsistent statements' as reported by the
testifying police officers?
IV. Was appellate counsel ineffective for not raising trial counsel's
ineffectiveness in failing to request that the jury be instructed on
the "other crimes/prior bad acts" evidence?
V. Was appellate counsel ineffective for not raising trial counsel's
ineffectiveness in failing to object to the Commonwealth's improper
use of prior consistent statements and/or in failing to request a
proper jury instruction?
VI. Was appellate counsel ineffective for not raising trial counsel's
ineffectiveness in failing to object to the improper introduction of
an inaudible audiotape and an unauthenticated and prejudicial
hearsay transcript?
VII. Were all prior counsel ineffective for failing to properly raise
and/or pursue the issue of the trial court's improper instructions to
the jury?
We note that this court also granted Noll permission to file a
supplemental brief. See Pa.R.A.P. 2185(a). He timely filed such brief, raising
the following additional issues for our review'
Was appellate counsel ineffective for failing to raise trial counsel's
ineffectiveness in failing to object to the trial court's use of written
instructions on the verdict slip submitted to the appellant's jury?
Did the trial court err in permitting appellant to represent himself
without conducting an on-the-record colloquy to determine
whether appellant's decision to waive his right to counsel under the
PCRA was knowing, intelligent, and voluntary?
On appeal from the denial of PCRA relief, this court must determine
whether the post-conviction court's findings were supported by the record and
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whether the court's order is otherwise free of legal error. Commonwealth v.
Blackwell, 647 A.2d 915 (Pa. Super. z994). The findings of the post-
conviction court will not be disturbed unless they have no support in the
record.
When examining a post-conviction court's grant or denial of relief, we are
limited to determining whether the record supported the court's findings and
whether its order is otherwise free of legal error. Commonwealth v. Schultz,
707 A.2d 513, 516 (Pa. Super. 1997). We will not disturb findings that are
supported by the record. /'d. In addition, to be eligible for PCRA relief, the
allegation of error must not have been previously litigated or waived. 42
Pa.C.S.A. § 9543(a)(3). Moreover, an appellant must demonstrate, by a
preponderance of the evidence, that his claims of error have not been waived,
or, if waived, that they meet the requirements of either subsection (ii)
(ineffective assistance of counsel) or (iii) (an unlawfully induced guilty plea) of
section 9543. Commonwealth v. Thomas, 2000 Pa. LEXIS 111 (Pa. filed
January 18, 2000). Failing such a showing, an appellant's claims cannot be
reviewed under the PCRA.
After reviewing the parties' briefs, the record, and the relevant law, we
conclude that the opinion authored by .]udge Bayley adequately addresses and
disposes of the first seven issues~ raised on appeal. We, therefore, rely upon
~The trial court addressed Noll's thirteen issues. On appeal, Noll raises seven
issues which are substantially the same as those raised to the trial court.
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Judge Bayley's opinion for the disposition of those issues. A copy of the trial
court opinion is attached for purposes of a petition to appeal.
Next, we address the issues raised in Noll's supplemental brief. First, we
note that the second issue regarding his voluntary and knowing waiver of
counsel has already been addressed by the trial court and, therefore, we have
relied upon Judge Bayley's opinion in affirming this decision.
The final issue on appeal involves the propriety of the language used on
the jury verdict slip at Noll's trial. Notably, Noll has failed to raise this issue in
his prior post-sentence motion, direct appeal, PCRA petitions and in his original
appellate brief filed with this court. Accordingly, it appears as though it has
not been preserved for our review. See Pa.R.A.P. 302; 42 P.C.S.A. §
9543(a)(3) (the allegation of error raised in a PCRA petition must not have
been previously litigated or waived).
been waived, an appellant may
However, if an issue appears to have
successfully overcome waiver by
demonstrating, by a preponderance of the evidence, that his claim of error
meets the requirements of either subsection (ii) (ineffective assistance of
counsel) or (iii) (an unlawfully induced guilty plea) of section 9543. Thomas,
supra. Failing such a showing, an appellant's claims cannot be reviewed
under the PCRA. /'d.
Presently, Noll asserts an ineffectiveness claim against counsel for his
failure to object to language included on the jury's verdict slip. Such language,
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he claims, amounts to a restatement of the Commonwealth's information, in
violation of Pa.R.Crim. P. :Ll14(B). Specifically, the verdict slip stated:
F%ND DEFENDANT:
NOT
(1) - attempts to cause
serious bodily injury or
causes such serious bodily
injury intentionally, knowingly,
or recklessly
(2) - attempts to cause
or intentionally or knowingly
causes bodily injury with a
deadly weapon 2
Pursuant to Pa.R.Crim. P. l:L14(B), during deliberations, the jury shall not be
permitted to have a transcript of any trial testimony; a copy of any written or
otherwise recorded confession by the defendant; a copy of the information, or
a written jury instruction. See Pa.R.C.P. I:L14(B)(1)-(4) (amended Nov. 18,
1999; effective January 1, 2000). The Commonwealth's information in the
instant case reads as follows:
The District Attorney of Cumberland County, by this information
charges that, on or about Wednesday, the 3:[st of May, :L995, in
Cumberland County,
M]:CHAEL ANDREW NOLL
2 The trial judge in fact stated to the jury during his instructions that the
defendant was charged with two different subsections of aggravated assault
and that "[he was] going to state it right on the verdict slip[,] type one and
type two."
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.1. S22029/00
Did attempt to cause serious bodily injury to another, or did cause
such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life; and/or did attempt to cause or intentionally or
knowingly cause bodily injury to another with a deadly weapon.
After a review of the above quoted language, we believe that the information
on the jury's verdict slip is strikingly similar to the language included in the
Commonwealth's bill of information.
The Supreme Court of Pennsylvania has consistently maintained the
rationale that the possible prejudice to a defendant when written instructions
are given to a jury for deliberation, outweighs any benefit such instructions
might provide. See Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406
(1976) (court held that trial courts should not follow the practice of including
such written instructions to the jury for deliberations). Accord
Commonwealth v. Karaffa, 551 Pa. 173, 709 A.2d 887 (1998);
Commonwealth v. Oleynik, 524 Pa. 41, 568 A.2d 1238 (1990)?
In Commonwealth v. Kelly, 484 Pa. 527, 399 A.2d 1061 (1979), where
the trial court placed notations on the verdict slip seeking to identify for the
jury the separate counts charged, the supreme court did not find reversible
error. Id. at 528, 399 A.2d at 1061. Rather, the court found the notations
innocuous where "there were numerous separate and distinct charges against
3 We note, however, that at the time Oleynik was decided Rule 1114 did not
contain language prohibiting the jury from having a copy of written jury
instructions with it during deliberation. Therefore, the supreme court was
forced to rely solely upon case law to find prejudicial the trial court's
submission of written instructions to the jury during their deliberations.
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appellant .... The notations, in and of themselves, while not ideally drawn,
were nevertheless in essence neutral and viewed in the context of the court's
instructions not suggestive or prejudicial."
The most factually similar case on point with the present appeal is
Commonwealth v. Dawson, 446 A.2d 1346 (Pa. Super. 1982). Tn Dawson,
our court upheld the trial court's decision to send the jury a list of the five
different grades of crimes charged and their respective elements. This
information was written on a plain, white sheet of paper after the jury
requested that the court clarify the crimes charged. ]:n affirming the trial
court's actions, our court relied upon the fact that Baker, supra, utilized an
abuse of discretion standard, rather than a strict interpretation of Rule 1114.
Moreover, the court stated:
the statement, as prepared by the trial court, amounted to simple
definitions of the elements of the crimes charged. ]:t neither
phrased the elements of the crimes in potentially misleading
quotations as in Baker, nor restated the facts in conjunction with
the elements as in Kelly.
Dawson, at 1348.
]:n contrast to the trend of these older cases, in Oleynik, supra, the
supreme court definitively held that it was reversible error for a trial court to
send written instructions to the jury during its deliberations. Zd. The trial
court in Oleynik, supra, sent with the jury written instructions pertaining to
legal causation and the definitions of third-degree murder and involuntary
manslaughter. On appeal, the supreme court ultimately reversed our court's
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affirmance of the trial court's decision i In its holding, the supreme court found
that any curative instruction that the trial court could have given the jury
would not have alleviated the potential for prejudice when a jury is left to its
own devices to interpret a written instruction. Essentially the court believed
that a jury under such circumstances may be more inclined to ignore the trial
court's oral instruction and operate under misconception during their
deliberative processes. Id. at 47, 568 A.2d at 1241.
Most recently, however, in Karaffa, supra, our supreme court found
reversible error where a trial court, following a verbal charge to a jury, allowed
jurors to deliberate with a written instruction on the elements of unlawful
restraint as well as a written definition of reasonable doubt. Id. at 175, 709
A.2d at 888. The court relied upon Oleynik in finding that it was improper for
the trial judge to submit written instructions to a jury "given the inherent
prejudice in this practice." Id. at 179, 709 A.2d at 890. Accordingly, the court
found trial counsel ineffective for failing to object to the use of the instructions
and that the defendant was prejudiced by trial counsel's omission. Id.
The notations on the verdict slip in the instant case fall somewhere
between an actual written recitation of the trial judge's oral instruction on
aggravated assault and a restatement of the elements of aggravated assault4
4 Because Dawson, supra, was decided before Oleynik and Karaffa, and
because we are bound to follow the law as annunciated by the supreme court,
we find it necessary to vacate and remand for a new trial.
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as defined by this Commonwealth's criminal code.s
slip language was strikingly similar to the
Additionally, the verdict
language used on the
Commonwealth's information. See Pa.R.Crim. P. 1114(B). Because the trend
in our supreme court has been to prefer oral instructions, see Oleynik, supra,
Kara££a, supra, rather than a written recitation of the elements of a crime
which could tempt jurors to inappropriately ignore the court's general
instructions without completely analyzing the relevant issues, we are
compelled to remand. See also Kelly, supra at 531, 399 A.2d at 1063
(Manderino, 3ustice, dissenting) (citing Baker, supra at 402, 353 A.2d at 416
(Roberts, 3ustice, dissenting)). Moreover, we find such a result more
appropriate in light of the fact that this was not a case involving multiple
s Aggravated assault, with which Noll was charged and convicted, is defined
as;
(A) OFFENSE DEFINED.-- A person is guilty of aggravated assault
if he:
(1) attempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life[.]
(4) attempts to cause or intentionally or knowingly causes bodily
injury to another with a deadly weapon;
18 Pa.C.S. § 2702(A )(1), (4).
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crimes with numerous elements that would make differentiation of each crime
difficult for lay jurors. Compare Kelly, supra; Dawson, supra.
the crime of aggravated assault does not involve complexity
interpretation.
Finding the language on the verdict slip intrinsically prejudicial, Oleynik,
supra, we deem counsel ineffective and remand for a new trial. See
Commonwealth v. Fink, 463 A.2d 1140 (Pa. Super. 1983) (where the record
on appeal clearly shows that there could have been no reasonable basis for a
damaging decision or omission by trial counsel, judgment must be vacated and
appropriate relief, such as the ordering of a new trial granted).
-1udgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
Musmanno, .1. concurs in the result.
AUO
Date:
A charge of
of elemental
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COMMONWEALTH
Mo
MICHAEL ANDREW NOLL
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
95-0949 CRIMINAL TERM
IN RE:
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
CRIMINAL TERM
31, 1995.
On January 3, 1996, petitioner pro se filed a direct appeal from the judgment of
~nce to the Supedor Court of Pennsylvania. Petitioner, inter alia, attacked trial
unsel's effectiveness. 'Trial counsel filed a motion to withdraw which was granted.
January 29, 1995, 15etitioner filed a second pro se direct appeal to the Superior
,urt 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).
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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,
Scha..effer allowed defendant to stay in her home overnight on a couple of
occas, iops. They were intimate just before Christmas 1994, but not
thereafte(.
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 wa~ 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
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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.
vVi~at happened was that defendant went into the bedroom with the
knif~b..ehind his back. Jenkins saw defendant standing by the bed.
Defendaht 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.
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
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recording of a hearsay transcript.
(13) Appellate counsel was ineffective for not raising or preserving the issue of
the trial court's imp'roper jury instruction that even if 551 Lexington Avenue was not his
dwelling on May 3.1, 1995, he had an interest in the Schaeffer's house which would
have given him und~i"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 pdor to, or dudng 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. Sectisn
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
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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. VVhat 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 clai.ms 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 thai. By deciding
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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 w~ his girlfriend and that on May 31, 1995, he was living with her
in her house. When he arrived at that house on May 31st, 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 Klm 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 ! 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
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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,
A: I was...
Q: ..Which side of the bed?
A: .I ~valked around to his side of the bed.
Q: Ol(~y.
A: Cause he's the one I'm worried about.
Q: Alright.
A: I'm not worried about Klm 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 if i 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:
A:
here.
Q:
A:
Mm-hmm.
Watching him get, and he walks over this way by my dresser right
Okay.
And there's a bat, I don't know where the fuck it came from. It ain't
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94r0949 CRIMINAL TERM
Q~
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
pull.
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 oi- 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.
And at this time where do you have the knife? He's got the bat.
Right here like this.
Okay.
I'm holding it, you know, at my side.
But he could see it.
Oh, yea.
Okay.
I'm holding it, you know, at my side.
But he could see it.
Oh, yea.
Okay.
You know what I mean. Cause I didn't know what he was gonna
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
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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: . 'Y. ea. I don't know if there's a mark or bruise or nothin, you know
what I milan. He hits me in my arm right here. I moved away from it.
Q: Puli 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 I 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.
A~lright, 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 ! 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 5% Petitioner argues that the police photographs which
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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 hi~'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..d°ubt 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.
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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
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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 rap(~d 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 assaultwas 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
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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. '5§2 (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 Klm 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.
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94-0949 CRIMINAL TERM
In Hutchinson, the defendant was arrested for rape and robbery. While in
custody he purportedly made the following statem'ent 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-examin~'tion 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.
VVhen 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 appeilee'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
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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. Billig, 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
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94,-0949 cRIMiNAL TERM
a hammer, threatened her in person and over the telephone, and threatened to kilt her.
crier's claim is frivolous because such evidence was admissible to show motive,
,ntent, 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
improper introduction
preserving trial couns'el's ineffectiveness in failing to obiecl to the
of "an inaudible tape recording of a hearsay transcript." The statement that defendant
made to Corporal James Adams of the Upper Alien Township police Department on the
night of the stabbing was tape recorded. A transcript of the tape was made and each
iuror 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 iury when they were del!berating.
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 iury as they listened to
the tape recording. Utilizing this Pr°cedure for the introduction of this evidence was
within the discretion of the trial iudge- commonwealth v. Rodriguez, 519 Pa. 415
(1988). AccordinglY, trial counsel was not ineffective in not objecting to the procedure.
Claim number t3 is that appellate counsel was ineffective for not raising or
preserving the issue of the trial court's improper iury 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 ti
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
regar..d, 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 incide'nt 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.
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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
provis'i~)n, 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 cdme.
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
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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 no.~, 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 in[~ 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 woqld 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
sucfi 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
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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
appe~lant's final claim. (Emphasis added.)
The charge'bn 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.
Jonathan R. Birbeck, Esquire
Jaime M. Keating, Esquire
For the Commonwealth
O_~RDER OF COURT
AND NOW, this ~ _ day of September, 1999, the petition of Michael
Andrew Noll for post-conviction relief, IS DENIED.
Michael Andrew Noll, CX-5006, Pro se
SCI Retreat
660 State Route 11
Hunlock Creek, PA 18621
:saa
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