HomeMy WebLinkAbout00-1909 CriminalCOMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES: (1) SUMMARY HARASSMENT (2) RECKLESSLY ENDANGERING
(3) RETAIL THEFT
(4) DRIVING UNDER
SUSPENSION
KELLY J. HOCK
OTN: E328214-5
NO. 00-1909 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., September 24, 2001.
In this criminal case, Defendant has appealed to the Pennsylvania Superior
Court from a judgment of sentence following a non-jury trial in which this court
found her guilty of retail theft, a second or subsequent offense (a misdemeanor of
the second degree),~ harassment (a summary offense),2 recklessly endangering
another person (a misdemeanor of the second degree),3 and driving under
suspension, a second or subsequent offense (a summary offense).4 The sentences
imposed did not include incarceration. S
At trial, Defendant conceded that she had been guilty of driving under
suspension,6 but contested the remaining charges] Following the imposition of
~ Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, as amended, 18 Pa. C.S.A. § 3929(a)(1) (West
1998 & Supp. 2001).
2 18 Pa. C.S.A. § 2709(a)(1). As requested by defense counsel at trial, and with the concurrence
of the prosecution, the Court considered summary harassment as a lesser-included offense of
simple assault, which had been charged. N.T. 90, Trial, January 25, 2001 (hereinafter Trial
3 18 Pa. C.S.A. § 2705.
4 Act of June 17, 1976, P.L. 162, No. 81, § 1, as amended, 75 Pa. C.S.A. § 1543(a); see Trial N.T.
90-91.
s Order of Court, March 27, 2001.
6 Trial N.T. 81, 86.
7 Trial N.T. 5, 71-75, 78, 87-89.
sentence, she filed a post-sentence motion for a new trial, based upon allegedly
ineffective assistance of her trial counsel.8
The post-sentence motion asserted that Defendant's trial counsel had "never
met Defendant prior to the day of trial," that he "failed to impeach witnesses by
using the transcript of the preliminary hearing to show changes in their testimony
from the preliminary hearing," and that he "was clearly unprepared and knew
nothing about the case prior to trial.''9 A hearing on the motion was held on June
18, 2001. Following the hearing, the motion was denied,l°
In a statement of matters complained of on appeal, Defendant has indicated
that the sole ground for the appeal is that "the court erred in failing to find trial
counsel ineffective.''~ This opinion in support of the judgment of sentence is
written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
The trial in Defendant's case was held on January 25, 2001. The evidence
presented at trial, viewed in the light most favorable to the Commonwealth, may
be summarized as follows:
On Tuesday, February 15, 2000, at about 12:40 in the afternoon, in a Weis
food market in East Pennsboro Township, Cumberland County, Pennsylvania,
Defendant was being observed by a loss prevention officer named Francis D.M.
Hill, Jr.~2 As he watched her, Defendant furtively placed a container filled with
salad, a 20-ounce Diet Coke, and a package of turkey luncheon meat in her
pocketbook, walked past the cash registers, and proceeded through an initial set of
doors to exit the store.~3
8 Defendant's post-sentence motion for a new trial, filed April 6, 2001.
9 Defendant's post-sentence motion for a new trial, paragraph 5.
l0 Order of Court, June 18, 2001.
~ Concise Statement of Matter Complained of on Appeal, filed August 9, 2001.
~2 Trial N.T. 6-7.
~s Trial N.T. 8-11.
2
Mr. Hill approached Defendant, identified himself as a loss prevention
officer, told her that he needed to speak with her about the merchandise which she
had in her pocketbook, and escorted her to an office in the stere.TM In the office, in
the company of an assistant grocery manager named Jane Dunn and another Weis
employee named Sherry Leedy, Mr. Hill opened Defendant's purse and removed
the three items of merchandise.~5 Defendant apologized for her actions. She also,
as it developed, provided a false address as to her residence.~6
Mr. Hill left the office to check the prices of the items which Defendant had
taken, leaving Defendant in Ms. Dunn's charge. Defendant began showing signs
of agitation and ultimately left the office in spite of Ms. Dunn' s efforts to stop her.
Defendant then began running for the exit. ~7
Ms. Dunn caught up to Defendant at the first set of exit doors, and was
struck by Defendant's purse in the head and knocked into the doors. Her pants
were torn at the knee, and she sustained a scratch on the forearm,la
Defendant fled through the second set of exit doors, ran into the parking lot,
got into the driver's seat of a full-size gray automobile, and locked the deers.~9
Mr. Hill, who had been paged and had pursued Defendant into the parking lot,
banged on the window of the vehicle and told her to unlock the door. Defendant
20
started the car.
In an attempt to block Defendant's escape route, Mr. Hill positioned
himself behind her car. Knowing that he was behind her, Defendant accelerated
the car backward at a high rate of speed, causing Mr. Hill's body to slide up onto
~4 Trial N.T. 11.
~s Trial N.T. 11-12, 42.
16 Trial N.T. 14-16, 80.
~7 Trial N.T. 16, 42-44.
~8 Trial N.T. 44-46.
19 Trial N.T. 18, 45.
20 Trial N.T. 16-18.
3
the trunk lid and then fall to the ground. Mr. Hill got up, but was thrown to the
ground a second time when Defendant sped from the parking lot as he tried to hold
her door handle.2~ Defendant's driver's license was under suspension at the
time.22
Defendant was apparently located by police at a later time.
At the conclusion of the trial, the court found Defendant guilty of the
offenses enumerated at the beginning of this opinion.23 She was sentenced on
March 27, 2001.24 Following the imposition of sentence, she filed a post-sentence
motion for a new trial, based upon allegedly ineffective assistance of her trial
counsel in the particulars recited above.25
A hearing was held on the post-sentence motion on June 18, 2001. At the
hearing, Defendant's counsel withdrew the allegation that her trial counsel had not
met with her prior to the day of trial.26 The evidence at the hearing tended to show
that Defendant's trial counsel was the chief public defender for Cumberland
County,27 who had extensive experience as a criminal defense attorney.28 A
graduate of Dickinson Law School in 1972, he had served as a full-time public
defender in Philadelphia from 1972 to 1974, and had been Cumberland County's
chief public defender for the past 25 years.29 His professional experience included
2~ Trial N.T. 18-21.
22 Trial N.T. 81, 86.
23 Order of Court, January 25, 2001. At trial, Defendant denied that she had placed the items in
her purse, denied that she knew she was being detained at the store, denied any improper contract
with Ms. Dunn, and denied that she had backed into Mr. Hill. Trial N.T. 71-75, 78. The court
did not find her testimony credible.
24 Order of Court, March 27, 2001.
25 Defendant's post-sentence motion for a new trial, paragraph 5.
26 N.T. 3, Hearing on Defendant's post-sentence motion, June 18, 2001 (hereinafter Post-sentence
Motion Hearing N.T. ~.
27 Post-sentence Motion Hearing N.T. 4.
28 Post-sentence Motion Hearing N.T. 13-14.
29 Post-sentence Motion Hearing N.T. 13.
4
numerous jury and non-jury criminal trials.3° His membership in various pertinent
organizations was recounted as follows:
... I'm a member of the Pennsylvania Bar Association, the
Pennsylvania Association of Criminal Defense Lawyers, the
National Legal [Aid] and Defender Association. I'm one of 14
Chief Public Defenders in the nation that's elected to their
policy group.
I am a former chair of the criminal law section of the
Pennsylvania Bar Association, former president of the Public
Defender Association of Pennsylvania, current
secretary/treasurer of that association, amongst others.3~
Defendant's trial counsel testified that his office had been appointed to
represent Defendant at her formal arraignment on November 6, 2000, that she was
interviewed by another attorney in his office on November 27, 2000, that on
December 19, 2000, he wrote to Defendant that he would be assuming
responsibility for her case, that Defendant failed to remain for a scheduled
appointment with him on January 2, 2001, and that a bench warrant was issued for
her arrest on that date as a result of her nonappearance in court for a pretrial
conference.32 He further testified that he immediately sent Defendant a letter
advising her of the bench warrant and indicating that, with her cooperation in the
form of an appearance, he could avoid the consequence of incarceration on the
bench warrant--a result which he accomplished when she appeared on January 12,
2001, and was permitted to remain at liberty on her own recognizance.33
Defendant's trial counsel also testified that he conducted an interview with
Defendant on January 12, 2001, met with her again on January 22, 2001, and
participated in her waiver of a jury trial in court on that date.34 According to his
Post-sentence Motion Hearing N.T. 9.
Post-sentence Motion Hearing N.T. 14.
Post-sentence Motion Hearing N.T. 4-5.
Post-sentence Motion Hearing N.T. 5.
Post-sentence Motion Hearing N.T. 6.
5
testimony, his office had also transcribed the notes of testimony of Defendant's
preliminary hearing (at which Defendant had been represented by private
counsel)35 and was prepared to use the transcript for purposes of impeachment at
trial should the occasion have arisen.36
He stated that, at trial, no advantage to Defendant from use of the transcript
for such purpose presented itself.37 Defendant adduced no testimony at the
hearing which contradicted evidence favorable to the Commonwealth on
Defendant's motion, and the court found the testimony of Defendant's trial
counsel to have been wholly credible. An order was entered on June 18, 2001,
denying Defendant's post-sentence motion for a new trial based upon allegedly
ineffective assistance of counsel.3a
Defendant's notice of appeal to the Pennsylvania Superior Court from the
judgment of sentence was filed on July 18, 2001.
DISCUSSION
Statement of Law
Ineffective assistance of counsel. "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 148 (2d ed.
1998).
The Pennsylvania Supreme Court has stated a general rule for the analysis
of a claim of ineffective assistance of counsel as follows:
s5 Post-Sentence Motion Hearing, Defendant's Exhibit 1.
36 Post-sentence Motion Hearing N.T. 6.
s7 Post-sentence Motion Hearing N.T. 6.
s8 Order of Court, June 18, 2001.
6
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 ....
Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); see
Commonwealth v. Beasley, 544 Pa. 554, 564-65, 678 A.2d 773, 778 (1996), cert.
denied 520 U.S. 1121, 117 S. Ct. 1257, 137 L. Ed. 2d 337 (1997); Commonwealth
v. Hess, No. 94-1437 Criminal Term (Cumberland Co., March 11, 1997) (Sheely,
P.J.).
The Pennsylvania Superior Court has noted in this context that "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); see generally Commonwealth v. Kimball, 555 Pa. 299,
306-07, 724 A.2d 326, 330 (1999).
Mere shortness in time of counsers preparation for trial does not of itself
establish that assistance of counsel was ineffective. Commonwealth v. Shirk, 228
Pa. Super. 356, 361,323 A.2d 99, 102 (1974).
Retail theft. Under Section 3929(a)(1) of the Crimes Code,
[a] person is guilty of a retail theft if he... takes possession of,
carries away, transfers or causes to be carried away or
transferred, any merchandise displayed, held, stored or offered
for sale by any store or other retail mercantile establishment
with the intention of depriving the merchant of the possession,
use or benefit of such merchandise without paying the full
retail value thereof ....
18 Pa. C.S.A. §3929(a)(1).
It is further provided in Section 3929(c) of the Crimes Code as follows:
7
Any person intentionally concealing unpurchased property
of any store.., on the premises.., of such store.., shall be
prima facie presumed to have so concealed such property with
the intention of depriving the merchant of the possession, use
or benefit of such merchandise without paying the full retail
value thereof.., and the finding of such unpurchased property
concealed, upon the person or among the belongings of such
person, shall be prima facie evidence of intentional
concealment ....
18 Pa. C.S.A. §3929(c).
The inferences which may be drawn under this provision are not, however,
to be equated with irrebuttable presumptions. See Commonrvea/th v. Martin, 300
Pa. Super. 497, 446 A.2d 965 (1982).
Summary harassment. Under Section 2709(a)(1) of the Crimes Code, a
person commits the crime of summary harassment when
with intent to harass, annoy or alarm another, the person...
strikes, shoves, kicks or otherwise subjects the other person to
physical contact, or attempts or threatens to do the same ....
18 Pa. C.S.A. §2709(a)(1).
The right of the agent or employee of a merchant to detain a person whom
he or she has probable cause to believe has committed a retail theft is set forth in
Section 3929(d) of the Crimes Code:
A... merchant's employee or an agent under contract with
a merchant, who has probable cause to believe that retail theft
has occurred.., on or about a store or other retail mercantile
establishment and who has probable cause to believe that a
specific person has committed.., the retail theft may detain
the suspect in a reasonable manner for a reasonable time on...
the premises for all or any of the following purposes: to require
the suspect to identify himself, to verify such identification, to
determine whether such suspect has in his possession
unpurchased merchandise taken from the mercantile
establishment and, if so, to recover such merchandise, to
inform a peace officer, or to institute criminal proceedings
against the suspect.
18 Pa. C.S.A. §3929(d).
Recklessly endangering another person. Under Section 2705 of the Crimes
Code, "Ia] person commits a misdemeanor of the second degree if he recklessly
engages in conduct which places or may place another person in danger of death
or serious bodily injury." 18 Pa. C.S.A. §2705. "Serious bodily injury" is
"[b]odily injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of any
bodily member or organ." 18 Pa. C.S.A. §2301.
Application of Law to Facts
In the present case, the evidence at the hearing on Defendant's post-
sentence motion for a new trial did not support the proposition that Defendant's
trial counsel had either (a) overlooked an opportunity to impeach a
Commonwealth witness through use of testimony at Defendant's preliminary
hearing or (b) been unprepared for the trial. In this sense, Defendant's claims of
ineffective assistance were not of arguable merit. Nor was Defendant able to
demonstrate any prejudice of the type which would warrant a new trial on the
basis of ineffective assistance.
A review of the record of the trial and of the hearing on Defendant's post-
sentence motion reveals, to the contrary, that Defendant's highly qualified trial
counsel gave Defendant's case his close attention, that he was well prepared for
the trial, and that he provided a vigorous defense on behalf of Defendant in the
face of overwhelming evidence as to her guilt. For these reasons, Defendant's
post-sentence motion for a new trial on the basis of allegedly ineffective assistance
of counsel was denied.
BY THE COURT,
J. Wesley Oler, Jr., J.
Michael W. Mervine, Esq.
Assistant District Attorney
9
Allen C. Welch, Esq.
Attorney for Defendant
10