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HomeMy WebLinkAbout96-0071 CriminalCOMMONWEALTH Ve DAVID ALTON REIDENBACH OTN: E656417-6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0071 CRIMINAL TERM CHARGE: CRIMINAL HOMICIDE - THIRD DEGREE MURDER IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. ORDER OF COURT AND NOW, this t~ay' of March, 1997, upon consideration of Petitioner's petition under the Post Conviction Relief Act, following a hearing, and for the reasons stated in the accompanying opinion, the petition is DENIED. BY THE COURT, J 0Wesley Ole~r. , Jaime M. Keating, Esq. Chief Deputy District Attorney Michael A. Scherer, Esq. Court-Appointed Counsel for Petitioner : rc CO~O~EALTH V® DAVID ALTON REIDENBACH OTN: E656417-6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0071 CRIMINAL TERM CHARGE: CRIMINAL HOMICIDE - THIRD DEGREE MURDER IN RE: POST CONVICTION RRLIEF ACT PETITION BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., March 18, 1997. At issue in the present criminal case arising out of a homicide is whether Petitioner's petition under the Post Conviction Relief Act~ should be granted. The relief sought by Petitioner is a new trial.2 The basis for the relief sought is a plea of guilty unlawfully induced by the ineffective assistance of counsel. Petitioner, who pled guilty to third degree murder, maintains that he had a viable claim of self-defense, and that his counsel was ineffective in (a) suggesting that certain homosexual aspects of the case would have an adverse effect upon the receptiveness of his defense, (b) obtaining after the fact certain materials relevant to the case, such as an autopsy report, and (c) being preoccupied with other work.3 ~ Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. §§9541 et seq. (1996 Supp.). 2 More accurately stated, the relief reinstatement of Petitioner's right to a trial. conviction resulted from a guilty plea. sought is a Petitioner's 3 Petitioner's specific contentions were set forth at the hearing on his petition. NO. 96-0071 CRIMINAL TERM A hearing on the petition was held on Thursday, February 20, 1997. Based upon the evidence presented at the hearing, the petition must be denied. STATEMENT OF FACTS In January of 1996, Petitioner, who was 34 years old, invited a male stranger to his home by way of a CB radio, engaged in consensual sex with him, choked him to death, and disposed of evidence connecting Petitioner with the killing. The following details of the incident are not in dispute: On January the 1st, 1996, between the hours of 3 a.m. and 6 a.m., the Defendant invited the victim, Charles L. Fisher, to his home at 31 Kerrs Avenue in the Borough of Carlisle in Cumberland County by means of a citizens band radio. The victim entered the Defendant's home at the Defendant's request. The victim and the Defendant participated in various consensual sex acts. At some point during this sexual encounter, the Defendant became angry with the victim, placed his arm around the victim's neck, and choked the victim until he died. The Defendant then dragged the victim's nude body out of the home and placed it in a walkway between the houses located at 31-35 Kerrs Avenue. The Defendant [at a later time] took all of the victim's clothes and other evidence of the crime, [and] drove to the Glass Lounge in Dauphin County, where he placed these items of evidence in a dumpster with the intent to cover-up his crime. On January the 3rd, 1996, the Defendant confessed to Detectives Ronald Egolf and Michael Brennan at the Carlisle Police Station that he killed Charles Fisher.4 4 N.T. 3-4, Guilty Plea Colloquy, April 24, 1996. 2 NO. 96-0071 CRIMINAL TERM Petitioner was charged with criminal homicide, including first degree murder. He tendered a plea of guilty on April 24, 1996, to third degree murder, pursuant to a plea bargain. In addition to forgoing a prosecution for first degree murder, the Commonwealth 5 agreed to recommend a minimum sentence of eleven years. Following an extended colloquy, which included an explanation of the form of justification known as self-defense,6 the court Id. 3. The maximum statutory minimum sentence had recently been increased to 20 years. See Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §l102(d) (1996 Supp.). Petitioner reserved the right to argue for a minimum sentence of less than eleven years, and the ultimate determination of the minimum sentence was reserved to the court. N.T. 3, Guilty Plea Colloquy, April 24, 1996. The plea arrangement was also potentially advantageous to Petitioner by virtue of its use of existing sentencing guidelines. Petitioner's counsel explained this consideration as follows: Q so did you make -- did you discuss in plea negotiations with [District Attorney] Ebert your concerns about [sentencing guidelines]? A Yes, and then that was the basic agreement that was struck, is that the sentence would be within the then existing guidelines, which were fashioned before the gradation was increased. Q And this was done with a mind to keep the Defendant from doing a life term? A Not from a life term, no. It was to protect Mr. Reidenbach, if he would be convicted of third degree, from getting a minimum sentence that could be as much as 20 years. 6 N.T. 17-20, Guilty Plea Colloquy, April 24, 1996. 3 NO. 96-0071 CRIMINAL TERM accepted Petitioner's guilty plea. It is not suggested in the present proceeding that the guilty plea colloquy was deficient. On June 18, 1996, Petitioner was given a standard range sentence of not less than nine years nor more than 25 years imprisonment in a state correctional institution. Following sentence, Petitioner's post-sentence rights were reviewed with him.7 It is not argued in this proceeding that the sentence was improper or that the review of post-sentence rights was deficient.8 On July 26, 1996, Petitioner filed a Post Conviction Relief Act petition. On July 30, 1996, the court appointed Michael A. Scherer, Esq., to represent him. At the hearing on the petition, Petitioner testified in support of the petition, the Commonwealth presented the testimony of his former counsel, and several exhibits were admitted. Petitioner stated in his testimony that he had been intoxicated on the morning in question, had engaged in consensual sex with the victim and had choked him to death when the victim forced himself upon him for anal sex. Petitioner's statement to police indicated, however, that a claim of self-defense would not be without difficulty: [Q]. When was he, you stated to me before that he was telling you to stop it or I'm 7 N.T. 7-9, Sentencing Colloquy, June 18, 1996. 8 No post-sentence motion or direct appeal from the judgment of sentence was filed by Petitioner. 4 NO. 96-0071 CRIMINAL TERM choking or something to that affect, what was he doing? [A]. I was on top of him by then [Q]. So you had your forearm around him once [A]. I had my forearm around him once and then I was on top of him with my hands just choking him [Q]. And when was he trying to get you to stop? [A]. When I had, when I had my forearm around him [Q]. OK and then did he say anything when you got on top of him? [A]. No. [Q]. Do you know if he was passed out or not? [A]. I thought he was passed out [Q]. Before you let go with your forearm? [A]. No. [Q]. When? [A]. When I was sitting on top of him, I don't know if he was passed out or not that's why I put my arms my hand around [Q]. What I'm trying to say is did you make him pass out by using your forearm? [A]. Yes [Q]. You did? [A]. Yes 5 NO. 96-0071 CRIMINAL TERM [Q]. And then you got on top of him straddling him? [A]. Yes [Q]. Was he face down or face up? [A]. Face up [Q]. And then you put your hands around his neck you said? [A]. Around his neck I was sitting on his chest and had my hands around his neck [Q]. And after putting your hands around his neck what did you do then? Did you keep choking him or not? [A]. Yes, I kept putting pressure there [Q]. You're very sure though that he was passed out when you had your forearm? [A]. Yes [Q]. Did he hold a knife to you? [a]. No. [Q]. Did he threaten you at all? IAI. No [Q]. Saying he was going to kill you? IAI. No [Q]. No threats whatsoever made during this whole thing? IAI. No * * * NO. 96-0071 CRIMINAL TERM [A]. I got my arm back, like that, and butted up this way and his head was down and I just [Q]. Squeezed [A]. Squeezed [Q]. Did you squeeze as hard as you could? [A]. Yes [Q]. How is it that you could get on top of him? [A]. I rolled him over on my body and I was still holding on [Q]. He was still somewhat unconscious? [A]. Yeah, I was still holding on to him [Q]. OK, David, what I'm going to ask you now is you could have gotten up from him and left him go, right? [A]. Yes [Q]. And you could have left the house, right? [A]. Yes [Q]. But you continued to choke him right? [A]. Yes [Q]. When you rolled him over you had your arm around his neck and at that time he was semi-unconscious? [A]. Right [Q]. And you could have gotten up and left 7 NO. 96-0071 CRIMINAL TERM [A]. Right9 It was not disputed at the hearing that Petitioner's counsel had recommended that he accept the plea arrangement described above. On the other hand, it was not contended by Petitioner that his counsel had insisted upon such a course of action or had refused to go to trial. Petitioner testified that his counsel had advised him that the homosexual aspects of the case would be less than sympathetically received in the trial process. Petitioner stated that he felt he was being told that he would not receive a fair.trial because of his sexual orientation. His former counsel, a highly experienced criminal defense attorney,~° testified that he did express the view that the homosexual nature of the case would be disadvantageous from a defense standpoint. In this regard, he stated as follows: With regard to his homosexuality, I did explain to Mr. Reidenbach - I certainly didn't say to him he couldn't have a fair trial. I didn't say to him I wouldn't represent him, or didn't want to. I did say to him, I thought it may cause the jury to have less of a regard for him as they may have for another individual. That's maybe not the way I would 9 Commonwealth's Exhibit 1, Hearing on Post Conviction Relief Act petition, February 20, 1997, (Defendant's statement to police, January 3, 1996). ~0 Petitioner's counsel had been chief public defender for Cumberland County since October of 1976. Prior to assuming that position, he had served as an assistant public defender in Cumberland County for ten months and in Philadelphia for two years. His experience included participation as defense counsel in dozens of jury trials. NO. 96-0071 CRIMINAL TERM like the world to be, but it's the way I see it to be, and I think it was accurate. Petitioner further testified that his counsel received copies of his statements to police, of a rape kit report and of an autopsy report only after the guilty plea had been entered. He stated that the rape kit report showed that semen was present on the victim's scrotum, and that the autopsy report showed that Petitioner had apparently broken two bones in the victim's neck when he choked him to death. Petitioner's counsel testified that he had been aware of the substance of Petitioner's statements to police, and that the presence of semen on the victim was immaterial to the case in view of the fact that consensual sex had preceded the killing. The autopsy report, which implied that a high degree of force had been employed, was similarly not beneficial to the defense. Petitioner finally testified that his counsel had seemed preoccupied with another case, and that on one occasion he had to postpone a visit with Petitioner due to the press of other business. Petitioner conceded, however, that he had not expressed his concern on this point to his attorney. He also agreed that he had met personally with his counsel on six occasions prior to his entry of the plea, and had spoken to him by telephone. In its capacity as factfinder, the court felt that both witnesses at the hearing testified in accordance with their best recollections as to the attorney/client relationship between them. 9 NO. 96-0071 CRIMINAL TERM The court credible. found the testimony of Petitioner's counsel entirely STATEMENT OF LAW "It is by now axiomatic that a defendant in a criminal case is entitled to effective representation at trial." Commonwealth v. Collins, 519 Pa. 58, 63, 545 A.2d 882, 885 (1988). With respect to a claim of ineffective assistance, however, "Pennsylvania courts presume that an accused's counsel is effective and place the burden of proving ineffectiveness on the convicted defendant." Packel & Poulin, Pennsylvania Evidence §307, at 116 (1987). In the context of a proceeding under the Post Conviction Relief Act,~ Judge Hess of this court has noted that the burden is a "heavy" one. Commonwealth v. Borrero, 42 Cumberland L.J. 419, 420 (1993). A general rule for the analysis of a claim of ineffectiveness of counsel has been provided by the Pennsylvania Supreme Court as follows: There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission .... If he did, our inquiry ends. If not, the [defendant] will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice .... ~ Act of May 13, 1982, P.L. 417, as amended, 42 Pa. C.S. §§9541 et seq. (1996 Supp.). 10 NO. 96-0071 CRIMINAL TERM Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); see Commonwealth v. Beasley, Pa. __, 678 A.2d 773 (1996); Commonwealth v. Hess, No. 94-1437 Criminal Term (Cumberland Co., March 11, 1997) (Sheely, P.J.). However, under the Post Conviction Relief Act, a person seeking relief on the basis of ineffective assistance of counsel must prove, by a preponderance of the evidence, that the "conviction or sentence resulted from ... [i]neffective assistance ... which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place."~2 Thus, the Pennsylvania Superior Court has stated that in this context "it is not enough for [a defendant] to show that he suffered some prejudice as a result of counsel's action or inaction, but rather that counsel's action or inaction so affected the trial itself ('the truth-determining process') that the result of the trial is inherently unreliable." Commonwealth v. Weinder, 395 Pa. Super. 608, 627, 577 A.2d 1364, 1374 (1990). In addition, an attempt by a person to withdraw a plea following sentence is subject to special burdens. Allegations of ineffectiveness of counsel in connection with a guilty plea "will provide a basis of relief only if ineffectiveness caused an Act of May 13, 1992, P.L. 417, §2, as amended, 42 Pa. C.S. S9543(a)(2)(i) (1996 Supp.). 11 NO. 96-0071 CRIMINAL TERM involuntary or unknowing plea." Commonwealth v. West, 336 Pa. -Super. 180, 185-86, 485 A.2d 490, 493 (1984). Where withdrawal of a guilty plea is the relief requested under the Post Conviction Relief Act, it will be permitted only "upon a showing of severe prejudice to the [petitioner] in the form of 'manifest injustice' .... " Commonwealth v. Edwards, 417 Pa. Super. 555, 559, 612 A.2d 1077, 1079 (1992), appeal denied, 625 A.2d 1191 (Pa. 1993). Several holdings of Pennsylvania appellate courts are instructive on the issues of ineffective assistance of counsel in general and withdrawals of pleas in particular. With respect to the former, it has been said that "mere shortness of time in conference does not, without more, establish ineffective assistance of counsel." Commonwealth v. Ford, 491 Pa. 586, 591, 421 A.2d 1040, 1042 (1980); see Commonwealth v. Hill, 450 Pa. 477, 481, 301 A.2d 587, 590 (1973) (mere shortness of time in preparation of defense). Similarly, "failure to conduct a more thorough investigation ... does not constitute per se ineffectiveness." Commonwealth v. Murray, 338 Pa. Super. 580, 586, 488 A.2d 45, 48 (1985). In addition, the fact that a claim of self-defense may be tenuous in a legal sense is a factor to be considered in determining whether an attorney's advice to accept a plea bargain was reasonable. See Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 12 NO. 96-0071 CRIMINAL TERM 1302 (1981) (circumstances indicative of failure of defendant to retreat). Finally, it has been said that, "[w]hen the Commonwealth has an excellent case but offers an accused a highly favorable plea bargain, counsel is ineffective if he doesn't advise his client to accept the bargain." 1 Wasserbly, Pennsylvania Criminal Practice §4.21 (1993); see Commonwealth v. Napper, 254 Pa. Super. 54, 385 A.2d 521 (1978). APPLICATION OF LAW TO FACTS An application of the law to the facts recited above leads to a conclusion that Petitioner's petition under the Post Conviction Relief Act must be denied. First, it would be difficult to support a determination that any of the challenged conduct of Petitioner's former counsel was of questionable legal soundness. His concern that the circumstances of the encounter between Petitioner and the victim might create an unfavorable impression deleterious to the defense was a practical one. Petitioner's attorney was not shown ~to have been unfamiliar with the case in any particular useful to the defense. He met or spoke with Petitioner on numerous occasions. The plea arrangement which was negotiated and recommended by Petitioner's counsel served to preclude the possibility of a life sentence and to promote the imposition of a minimum sentence well under that authorized by statute for the offense pled to. 13 NO. 96-0071 CRIMINAL TERM Second, even if the conduct of Petitioner's counsel could somehow be characterized as questionable in terms of its legal soundness, it could not be found to have lacked a reasonable basis. His concern as described above was not irrational. The plea arrangement which he negotiated and recommended was, to all appearances, the product of an informed analysis of the strengths and weaknesses of the prosection and defense cases, including consideration of the viability of an intoxication defense which depended in large part upon Petitioner's credibility and the viability of a claim of self-defense where the victim's strangulation may have been completed after he had been rendered helpless. Third, nothing that Petitioner's counsel did or did not do has been shown to have prejudiced Petitioner - by undermining the truth-determining process, precluding a reliable adjudication of guilt or innocence, or otherwise. The result obtained by counsel for Petitioner arguably represented a highly favorable outcome in light of the serious possibility of a first degree murder conviction and mandatory life sentence; the result could not properly be characterized as a "manifest injustice" from the Petitioner's standpoint. Finally, Petitioner's plea was not shown to have been involuntary or unknowing. As is implicit in the foregoing discussion, the court does not feel that the plea resulted'from 14 NO. 96-0071 CRIMINAL TERM legal representation on the part of Petitioner's counsel which was arguably unsound or, in any event, unreasonably based; nor has any coercive or intimidating factor been shown to have existed in counsel's relationship with Petitioner. Furthermore, the extensive colloquy engaged in at the time of the guilty plea effectively negates any inference that the plea was not knowing. For these reasons, the following order will be entered: ORDER OF COURT AND NOW, this 18th day of March, 1997, upon consideration of Petitioner's petition under the Post Conviction Relief Act, following a hearing, and for the reasons stated in the accompanying opinion, the petition is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Jaime M. Keating, Esq. Chief Deputy District Attorney Michael A. Scherer, Esq. Court-Appointed Counsel for Petitioner : rc 15