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HomeMy WebLinkAbout00-2432 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 00-2432 CRIMINAL : CHARGE: (1) SIMPLE ASSAULT : (2) HARASSMENT : (3) DISORDERLY CONDUCT WILLIAM KAUTZ, JR. : AFFIANT: PTL. JAMES SOLLENBERGER IN RE: POST-SENTENCE MOTIONS BEFORE HESS, J. MEMORANDUM OPINION AND ORDER The defendant was convicted of simple assault and disorderly conduct following jury trial on March 6, 2001. The convictions arose out of an incident which occurred on October 27, 2000, during which he was alleged to have caused injury to his fiancee, Tammy Gumpher. The assault, according to the testimony, occurred at a mobile home at 17 Victor Drive, Mechanicsburg, Hampden Township, Cumberland County. The eyewitnesses to the assault viewed it from the mobile home at 16 Victor Drive. They described Mr. Kautz repeatedly striking the victim as she struggled to get away. At the trial of the case, the victim, Ms. Gumpher, testified on behalf of Mr. Kautz. She indicated that she was not assaulted and that Mr. Kautz was simply attempting to calm her down. At sentencing, the defendant indicated, among other things, that he grabbed his fiancee in order to keep her from driving drunk and that no harm or injury was ever intended. The defendant, on the advice of counsel, had not taken the stand during the trial. In his post-trial motions, the defendant contends that the evidence was insufficient to support his conviction and that, in any event, the conviction was against the weight of the 1 evidence. The defendant also seeks a new trial by virtue of the ineffectiveness of counsel. 1 Because of this allegation, new counsel was appointed for Mr. Kautz to represent him on these post-trial motions. 00-2432 CRIMINAL Mr. Kautz’s assignment of ineffectiveness include charges of lack of preparation, including the lack of a proper investigation of the background of witnesses and inadequate cross-examination of Commonwealth witnesses at trial. These allegations were effectively refuted by the testimony of trial counsel at a hearing on the defendant’s post-trial motions which was held June 4, 2001. Of particular concern to the court is the allegation of ineffectiveness having to do with advice concerning whether or not the defendant should testify. This is a case where, as we have noted, both the defendant and the alleged victim dispute the Commonwealth’s version of what occurred. In addition, questions have been raised concerning the ability of the eyewitnesses to observe what was occurring. Nonetheless, the jury, after a comparatively brief deliberation, found the defendant guilty. Despite our real concerns in this case, we must, in the end, be guided by the legal standards which govern our review of these matters. In that regard, it is not our role to substitute our judgement for that of the jury’s. Nor may we grant a new trial simply because we believe that, in retrospect, the defendant’s decision not to testify may have been unwise. In this case, the court conducted a colloquy with the defendant regarding his decision not to take the stand. Our colloquy was conducted after the jury retired to deliberate. While we no doubt should have conducted the colloquy earlier, we have found no case granting a new trial based on the timing of the colloquy. With respect to his decision not to testify, we had the following exchange with the defendant: THE COURT: … Mr. Kautz, we will address this comment to you. You decided not to take the stand in this case, am I correct? THE DEFENDANT: Yes, sir. 2 00-2432 CRIMINAL THE COURT: Do you understanding that I have instructed the jury that they may not hold that matter against you? By the same token, if there was something that you had desired to tell the jury that you thought might be helpful to you, do you realize that you have not done that? That decision is personal to you. Did you have the opportunity to talk about that decision with Mr. Clawges? THE DEFENDANT: Yes, sir. THE COURT: Do you understand though that in the end the decision of whether to testify is yours and yours alone, do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Am I correct that it was your desire not to testify in this case? THE DEFENDANT: Yes, sir N.T. 113-114. There is little dispute about trial counsel’s advice to the defendant in this case. Mr. Clawges was concerned that the defendant would be cross-examined concerning a crimen falsi crime (burglary). In addition, he was concerned that Mr. Kautz might not keep his composure under cross-examination and that the jury would perceive him as having a short temper. Whether or not counsel was ultimately right or wrong, we cannot say that his advice lacked a reasonable basis. More importantly, even though the defendant now has reason to question the wisdom of his decision, he acknowledged, at the time of trial, that the decision not to testify was his. It has been repeatedly held that a defendant who makes a knowing, voluntary and intelligent waiver of testimony may not later claim ineffective assistance of counsel for failure to testify. See Com. v. Lawson , 762 A.2d 753, 755 ( Pa.Super. 2000) and cases cited therein. 3 00-2432 CRIMINAL With regard to the defendant’s motion for ju dgment of acquittal and motion for new trial, we reiterate that our purpose is not to substitute our judgment for that of the jury. The credibility of the witnesses is solely within the province of the finder of fact which “is free to believe all, part, or none of the evidence.” Com. v. Mayfield , 401 Pa.Super. 560, 565, 585 A.2d 1069, 1071 (1991). We could, in the proper case, question the findings of a jury where they wrongly ignored evidence of innocence. See Com. v. Murray , 408 Pa.Super. 435, 597 A.2d 111, (1991). We are unable to reach that conclusion in this case. ORDER AND NOW, this day of August, 2001, the motion of the defendant for post- trial relief is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Mary-Jo Mullen, Esquire Chief Deputy District Attorney Dirk Berry, Esquire Court-appointed for Defendant Timothy Clawges Esquire Office of Public Defender 4 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 00-2432 CRIMINAL : CHARGE: (1) SIMPLE ASSAULT : (2) HARASSMENT : (3) DISORDERLY CONDUCT WILLIAM KAUTZ, JR. : AFFIANT: PTL. JAMES SOLLENBERGER IN RE: POST-SENTENCE MOTIONS BEFORE HESS, J. ORDER AND NOW, this day of Aug ust, 2001, the motion of the defendant for post- trial relief is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Mary-Jo Mullen, Esquire Chief Deputy District Attorney Dirk Berry, Esquire Court-appointed for Defendant Timothy Clawges Esquire Office of Public Defender : rlm