HomeMy WebLinkAboutCP-21-CR-2383-2005
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
: CP-21-CR-2382-2005
SHELBY UNGER-BACZ : CP-21-CR-2383-2005
IN RE: PETITIONER’S POST CONVICTION RELIEF ACT PETITION
OPINION AND ORDER OF COURT
Masland, J., May 13, 2011:--
I. Introduction
1
In her Post Conviction Relief Act (“PCRA”) petition, Shelby Unger-Bacz
(Petitioner) seeks a new trial on the basis of numerous claims of trial counsel and
appellate counsel ineffectiveness, one claim of trial court error and one claim of
prosecutorial misconduct. An evidentiary hearing was conducted on September
3, 2010, following which the parties were directed to file post-hearing briefs. In
addressing the numerous claims raised, we will adhere to Petitioner’s method of
numbering the claims, which is consistent with the amended PCRA petition.
Also, for clarity, we will distinguish between Petitioner's two convictions for
possession with intent to deliver as the search warrant count and the historical
count. The search warrant count refers to the cocaine discovered on Petitioner's
person during the search of her residence. The historical count refers to
Petitioner's ongoing drug dealing activity over a period of several months.
Ultimately, we find that the majority of Petitioner's claims are without merit.
1
Referred to here as the PCRA or the Act. Act of April 13, 1988 (P.L. 336 No.
47), 42 Pa.C.S. §§ 9541-9546 (1988).
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However, we also conclude that Petitioner's counsel, Arthur Gutkin, Esquire
(Counsel) was ineffective for failing to request a bill of particulars and for failing to
litigate the applicability of the mandatory sentence for the historical count of
possession with intent to distribute. Accordingly, we will vacate that sentence
and schedule a new sentencing hearing.
In our discussion, following an overview of the law, we will first address
Petitioner's unsuccessful claims and then address her successful claims.
II. Law Governing PCRA Claims
A petitioner is eligible for relief under the PCRA when she establishes
three criteria by a preponderance of the evidence. First, the petitioner must show
that she is in custody, having been convicted of a crime and either serving a term
2
of probation, parole or incarceration or waiting to do so. Second, she must
demonstrate that the conviction resulted from, inter alia, “[i]neffective assistance
of counsel which, in the circumstances of the particular case, so undermine the
truth-determining process that no reliable adjudication of guilt or innocent could
3
have taken place.” Third, the petitioner must demonstrate that the error or
4
defect has not been waived or previously litigated.
With respect to Petitioner’s claims of ineffective assistance of counsel, she
2
42 Pa.C.S. § 9543(a)(1).
3
42 Pa.C.S. § 9543(a)(2)(ii).
4
42 Pa.C.S. § 9543(a)(3).
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must prove by a preponderance of the evidence both that her “counsel’s
performance was deficient” and that the “deficient performance prejudiced the
defense.” Commonwealth v. Reaves, 923 A.2d 1119, at 1127 (Pa. 2007) (citing
Strickland v. Washington, 466 U.S. 668 at 687 (1984)). Our Supreme Court
further clarified the performance part of the test as follows:
The constitutional ineffectiveness standard requires
the defendant to rebut the presumption of
professional competence by demonstrating that: (1)
his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did
not have some reasonable basis designed to
effectuate his interest; and (3) but for counsel’s
ineffectiveness there is a reasonable probability that
the outcome of the proceedings would have been
different. A failure to satisfy any prong of the test for
ineffectiveness will require rejection of the claim.
Reaves, 923 A.2d at 1127 (citations omitted).
Given the plethora of issues raised by Petitioner, we note that where
multiple instances of counsel’s deficient performance are found, prejudice may
be properly based upon the cumulative errors. Commonwealth v. Johnson, 966
A.2d 523, 532 (Pa. 2009). Before reviewing the disputed claims, we note that
Petitioner has withdrawn the following issues that were raised in her
amended petition: (19)(D), (L), (N), (O), (P), (Q), (R), (S), and 29(A) and (B).
III. Unsuccessful Claims
A. Pretrial and Trial Issues
The following unsuccessful claims were raised in the amended PCRA
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petition regarding the ineffective assistance of Counsel in pre-trial and trial
matters:
19(J) Trial counsel was ineffective for failing to raise
petitioner’s competency to stand trial;
19(K) Trial counsel was ineffective for failing to raise
issues in a pretrial motion regarding a cavity search of
petitioner;
19(L) Trial counsel was ineffective for failing to keep
petitioner informed and apprised of the charges
against her;
19(Q) Trial counsel was ineffective for failing to
adequately conduct any form of pretrial investigation
and failed to interview or investigate any potential
witnesses that petitioner had provided to counsel; and
19(R) Trial counsel was ineffective for failing to call
Thomas Mack as a witness at trial.
1. Issue 19(J) – Petitioner’s Competency to Stand Trial
Petitioner claims that Counsel was ineffective for failing to allege that she
was mentally incompetent to stand trial. By all accounts Petitioner was
“distraught” and “a mess.” However, that does not equate with being
incompetent to stand trial. Likewise, Petitioner’s admission that she was “on
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drugs” prior to trial and most likely during trial does not automatically amount to
being incompetent to stand trial. Although portions of Counsel’s testimony gave
5
N.T. PCRA at 92.
6
N.T. PCRA at 225.
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us pause, we find that he testified credibly with respect to Petitioner’s
performance at trial:
She was scared, as anybody should be scared that
they can go to jail for a long time. She was nervous
and upset, as everybody would be, to stand trial. I’m
not really presently happy to be sitting up here right
now. I may look like I’m not nervous or anything but I
am. I’m being truthful about it. But that doesn’t make
you incompetent to be on the witness stand.
When she testified on the witness stand, she
did rather well. I asked her about her background.
She mentioned her background. She told all the
terrible things that happened in her life. She
mentioned how Santiago threatened her.
She sat there at the counsel table and told me
at the counsel table things to ask. She told me about
the pretrial. She said she gave me witness lists, what
people to ask. She sat down with me. She came to
my office. She drove two and a half hours each way
sometimes to come to my office and be interviewed.
Those things are things of a competent person.
I mean, being nervous and being scared is not
incompetent. Incompetency is inability to cooperate
with your attorney and to be able to communicate with
your attorney. She had all the mental acuities to be
able to communicate with me. She was able to stand
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trial.
After acknowledging that Petitioner was using drugs during trial, Counsel
was asked if he was concerned that such use affected her competency. Again,
his response was credible and forceful:
Absolutely not. Because she cooperated. She was
complaining to me about, you know, this witness, that
witness. They were liars. [Senior Deputy Attorney
General] Heather [Adams] was you know, betraying
7
N.T. PCRA at 192-193.
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her. Heather was going to make a deal with her. She
was able to communicate with me. She was able to
talk with me. She was coming in on time. She was
able to get here on her own. She was having fights
with her boyfriend, Mr. Dick, whatever he was to her.
She was able to communicate.
I would have looked for any way to have gotten
her out of that trial, and if I could’ve claimed that she
was incompetent to get her out of that trial, I would
have. But one thing I was as an attorney is being
truthful to the court, and I did not BS the court and file
frivolous motions. Like, I wouldn’t file a motion to
suppress that I knew that I would lose, and I wouldn’t
say to the court my client was incompetent just to
delay a trial when I knew my client was competent. If
I thought she was on drugs and that she couldn’t
communicate with me, I would have stopped that trial.
We do not question the testimony of Petitioner’s expert Dr. William
Russell, that Petitioner had extensive mental health issues, extensive addiction
issues, extensive romantic relationship issues and extensive issues of domestic
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violence. Nevertheless, those issues did not render her incapable of
competently participating in her trial.
2. Issue 19(K) – Cavity Search
Petitioner argues that Counsel was ineffective for failing to challenge the
constitutionality of the body cavity search conducted following the execution of a
search warrant at her residence. Counsel testified that he did not raise the
8
In fact, there is an overriding Dickensian theme throughout this case with
Petitioner cast as “Nancy” and George Santiago as “Bill Sikes” in a remake of
Oliver Twist. Although Dickens’ Nancy was not fortunate enough to get to trial,
we suspect she too would have been competent to participate in her case.
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9
issue because it was frivolous and without merit. We agree.
Petitioner had been taken into custody immediately prior to the time
police conducted the body search which lead to the discovery of cocaine on her
10
person. Moreover, the record demonstrates that when officers entered the
residence to execute the search warrant, one of the officers observed Petitioner
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placing something into the crotch area of her clothing. The observation of
Petitioner’s movements by the officers suggesting the concealment of some
object created a reasonable articulable suspicion that petitioner was hiding
contraband or a weapon, which justified the search of her person. See
Commonwealth v. Murray, 936 A.2d 76 (Pa. Super. 2007); Commonwealth v.
Morris, 619 A.2d 709 (Pa. Super. 1992).
Based on the officers’ observations, which information was in a police
report provided to Petitioner and Counsel prior to trial, there was no valid basis
to challenge the search. As Counsel explained at the hearing, for these reasons
plus the “inevitable discovery rule” any challenge of the search would have been
12
frivolous. Therefore, this claim fails.
9
N.T. PCRA at 203.
10
Trial transcript, September 25 and 26, 2006, at 110, 128; N.T. PCRA at 206.
11
N.T. PCRA at 205-206, Commonwealth Exhibit No. 3.
12
N.T. PCRA at 203-204, 208.
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3. Issues 19(Q) and 19(R) – Failure to Conduct Pre-trial Investigation and
Failure to Call a Witness
Petitioner testified that she provided a list of witnesses to Counsel prior to
13
trial and had requested that he subpoena certain people for trial. Although it
appeared at the hearing that Petitioner was claiming Counsel was ineffective for
failing to call John Baum (Baum), Petitioner’s brief focuses solely on Thomas
Mack (Mack). The purpose in calling Mack was to support Petitioner’s duress
defense. Mack testified at the hearing that he observed George Santiago
threaten Petitioner on four occasions and witnessed physical abuse on three
14
occasions. In addition, Mack testified that he had seen Santiago prevent
15
Petitioner from leaving the residence “many times.” Significantly, Mack also
testified that there were times he heard Petitioner refuse to cooperate with
16
Santiago regarding drugs, a fact that might have undermined the duress
defense.
Regardless, the failure of Mack to testify does not establish the prejudice
prong of the ineffective assistance of counsel standard. Counsel had elicited
testimony about several severely violent physical assaults perpetrated by
13
N.T. PCRA at 96, 97.
14
N.T. PCRA at 140, 141.
15
N.T. PCRA at 141.
16
N.T. PCRA at 142.
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17
Santiago on Petitioner through his cross-examination of Baum. Similar
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testimony was elicited from Valerie Keeseman. We agree with the
Commonwealth that the failure to have Mack testify to a few more incidents,
which would have been merely cumulative, does not establish prejudice. There
may have been gaps in Counsel’s preparation, but the suggestion by Petitioner
that Counsel did not prepare at all for trial are belied by the testimony presented
at trial by the above witnesses. In particular, Counsel’s cross-examination
enabled him to raise the specter of the duress defense in the minds of the jurors.
Therefore, this claim fails.
B. Expert Witness Issues
In paragraph 19(O) of the amended PCRA petition, Petitioner alleges that
Counsel was ineffective by failing to obtain expert witness testimony that was
critical to Petitioner’s defense. Further, in paragraph 19(P) Petitioner claims
Counsel was ineffective for failing to present her prior mental health records to
the court. We will address both these issues below.
1. 19(O) – Failure to Obtain Expert Witness Testimony
Petitioner presented the testimony of forensic psychologist Dr. William
Russell (Dr. Russell), who was qualified as an expert witness with respect to both
17
N.T. Trial at 82-89.
18
N.T. Trial at 162, 163, Tower Swartz, N.T. Trial at 190-196, Lisa Mullet, N.T.
Trial at 232-236, Martha Jane Unger, N.T. Trial at 239-242, and from petitioner
herself, N.T. Trial at 249-285.
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forensic psychology in general and domestic violence in particular. The thrust of
Dr. Russell’s testimony was that Petitioner possessed:
the chronology and history, [of] an individual with
serious mental health issues, with long-standing
addiction problem, with a history of domestic violence
and inappropriate relationships, and probably a
significant personality disorder. When you take all
those issues, it would take an expert to make sense
of them to a lay person, especially how they intertwine
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and can impact on behavior.”
In addition to reviewing Petitioner’s medical records, the PCRA petition
and correspondence from the Petitioner, Dr. Russell reviewed the trial transcript.
Dr. Russell acknowledged that Counsel’s opening statement unveiled the
defense of duress and that there were efforts throughout the trial to demonstrate
Mr. Santiago’s violence and control over Petitioner. But, Dr. Russell
emphasized:
at no time was there any coordinated attempt to
present information about how her mental health, her
addiction, her history, her current functioning, her
pattern of falling into abusive relationships intertwined
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to impact on her ability to think and behave.
The record is replete with both clear and cloudy references to duress and
abuse from the opening statements through closing arguments. The issue
before us is whether Counsel’s strategy of not calling an expert to clarify and
19
N.T. PCRA at 24 and 25.
20
N.T. PCRA at 31.
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explain his client’s behavior, was reasonable. Counsel’s concern that the
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testimony of an expert could have caused more harm than good is juxtaposed
with Dr. Russell’s firm belief that such expert testimony was essential. However,
Dr. Russell acknowledged that his review was “on the surface of the evidence”
and that a full evaluation would have been necessary to definitively state the
extent to which Petitioner’s state of mind was impacted by the panoply of
physical, mental and emotional concerns.
Assuming the limited documentation that Dr. Russell reviewed was not
self-serving, as much of it was provided by the Petitioner, the question remains
whether that not only justified a defense of duress, but also required the
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explanation of an expert. There were certainly facts of record that satisfied the
Honorable Edgar B. Bayley that the duress instruction was necessary, and he
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read the charge on duress not once, but twice to the jury. Then, after
deliberating for one hour, the jury requested that the court “explain in layman’s
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terms the paragraph in which you explained intimidation, duress?” After
apologizing for the legalese involved in the definition, Judge Bayley reviewed the
21
N.T. PCRA at 194, 227.
22
N.T. PCRA at 40, 47, 64.
23
N.T. Trial at 322-336.
24
Footnote to 340 at the trial.
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duress instruction two more times. Clearly, the jury knew what to focus on.
Therefore, the question boils down to whether counsel reasonably and
intentionally determined that an expert would hurt his case or if his “decision” was
merely the result of him dropping the ball.
Petitioner, of course, contends that it was the latter. Her testimony was
compelling regarding the scope of Counsel’s retention, which included funds for
26
trial, appeal and the retention of an expert witness. Petitioner understandably
27
assumed that an expert would be hired because she had paid for one;
however, she was told by Counsel that the judge would not allow such an
2829
expert. Not surprisingly, Petitioner never met with an expert prior to trial.
Counsel testified regarding his familiarity with and affection for psychology
and psychological issues in general, having graduated from George Washington
University in 1967 with a degree in psychology. Counsel shared an office at
Montgomery County Community College with a psychologist and even taught
25
N.T. Trial at 340-347.
26
N.T. PCRA at 71 and 72.
27
N.T. PCRA at 92-93.
28
N.T. PCRA at 93. Petitioner’s statement has a troubling ring of truth. It is not
uncommon for counsel to blame the court, but this explanation, if indeed it was
given by Counsel, has the tinny sound of an excuse given to a legally
unsophisticated client.
29
N.T. PCRA at 96.
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30
duress for nineteen years at the community college. We note for the record
that Counsel is not a licensed psychologist and is no longer licensed to practice
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law although it appears he may be licensed to sell real estate in Pennsylvania.
Counsel testified that he gave up his license to practice law “willingly and
happily,” however, it appears that he also had a run-in, albeit successful, with the
32
Disciplinary Board as a result of a complaint from Petitioner. The court, knows
firsthand the value of an undergraduate degree in psychology; however, relying
on it to address a client’s complex state of mind is something we would be chary
to do. Counsel proceeded unabashedly where wiser souls might fear to tread.
In examining Counsel’s rationale for not calling an expert, it is best to use
his own words. Waxing extemporaneously on the difference between duress and
battered woman’s syndrome, he explained:
… [D]uress is a defense which is a one-time
defense usually, and a Battered Woman’s Syndrome
is a long-term defense rather than a one-time
incident. Usually duress is when someone threatens
you or your family to do an act; such as, I will kill your
wife or your children unless you do this particular act
at this particular time or your family or your child will
be harmed at this particular time. A Battered
Woman’s Syndrome act is where a woman is under a
long-term period of duress and they are constantly
afraid of their spouse, and instead of doing something
like selling drugs, they turn and they go against their
30
N.T. PCRA at 182 and 183.
31
N.T. PCRA at 181.
32
N.T. PCRA at 181 and 235.
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spouse and harm their spouse.
So a Battered Woman’s Syndrome is an act
against their spouse in physically harming their
spouse. Where an act of duress is you do something
in order to present harm to somebody. So an act of
duress is a one-time event which is a temporal event,
where a Battered Woman’s Syndrome is over a long
time event, but they have different outcomes. Duress
is an event where you’re saving somebody, and a
Battered Woman’s Syndrome defense is where you’re
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harming somebody.
In further explaining his approach to the duress defense at trial, Counsel
acknowledged that he apparently had an appointment for Petitioner to meet with
an expert which was cancelled because, in his words:
as I sit here
… I realized, , that – and what the expert
was the expert was wrong here about, in my opinion,
is that a duress defense is a defense of a one-time
act.
I presented duress, and Heather [Adams]
as, I
missed it. The judge never should have allowed
think about it now
, the duress defense to have been
what it was because it wasn’t a duress because it
wasn’t a one-time event where he was saying do it
now or else this will happen or do it now. She had the
opportunity to leave.
I figured if I brought in an expert, he’s going to
say, no, this is not a duress defense. This is a
Battered Woman’s Syndrome, and now I have lost
that duress defense. And I realized if I brought in an
expert and he realizes that I am producing a Battered
Woman’s Syndrome defense rather than a duress
defense that I have now sabotage my own defense.
If I presented a duress defense and the AG’s
Office missed it, which the AG’s Office did, too bad,
the AG’s Office missed it, I now have brought in an
expert that has now said -- may say, you know what,
33
N.T. PCRA at 184.
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Gutkin, you’re presenting a Battered Woman’s
Syndrome. You’re not presenting a duress defense.
And a Battered Woman’s Syndrome I have
never seen used in order to get out of drug dealing,
but a duress defense may get you out of a drug
dealing defense. So to have a doctor come in and
realize I am using a Battered Woman’s Syndrome
defense rather than a duress defense may have
backfired on me so I said I better back off of this and
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so I went with the duress defense. (Emphasis
35
added).
The parties disagree as to whether or not the defense of duress was
appropriate. The Commonwealth cites Commonwealth v. Baskerville, 681 A.2d
195, 200 (Pa. Super. 1996) for the proposition that the Petitioner must prove she
committed each criminal act “under an immediate or imminent threat of death or
serious bodily injury” and “no reasonable opportunity to escape the threatened
harm except by committing the criminal act.” In short, the Commonwealth claims
that absent an immediate threat the duress defense would not apply to the
historical counts of drug delivery because they encompassed numerous acts
between 2003 and 2005.
Conversely, the defense cites Commonwealth v. Ely, 578 A.2d 540, 542
(Pa. Super. 1990), for the proposition that the defense of duress does not require
immediacy or imminence of harm but must be “determined by considering
34
N.T. PCRA at 194-195.
35
Every attorney leaves the courtroom with a mind full of “I shoulda saids,” and
justifying strategies is an occupational necessity. Nevertheless, the emphasized
phrases cause us to ponder when Counsel came up with his theories.
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whether under the totality of the circumstances (including past abuse and the
appellant’s mental capacity), the threat (implicit or explicit), or use of force was
such that a person of reasonable firmness would have been unable to resist.”
Regardless whether the defense was appropriate, it was the theme that
played throughout the trial and echoed into the jury deliberation room. In order
for Petitioner to prevail on this claim for the failure to call an expert, she must
demonstrate: (1) that the witness existed; (2) that the witness was available; (3)
that counsel was informed of the existence of the witness or should have known
of the existence of the witness; (4) that the witness was available and prepared
to cooperate; and (5) that the absence of the testimony prejudiced the petitioner.
Commonwealth v. Laurey, 784 A.2d 795, 800 (Pa. Super. 2001). Manifestly,
Petitioner has demonstrated one through four, but has she demonstrated that the
absence of the testimony prejudiced her case? As much as we are troubled by
Counsel’s rationale and his apparent failure to follow through, in and of itself, it
constitutes a near miss. Although it adds to Counsel’s cumulative errors,
focusing on the fact that the claim was squarely placed on the record, argued by
Counsel and considered by the jury, we determine that Petitioner has failed to
demonstrate prejudice in this claim.
2. 19(P) Mental Health Records
Petitioner next claims that Counsel was ineffective because he failed to
present her mental health records at trial. She testified that she had requested
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Counsel to get records pertaining to her mental health, providing him with the
names of doctors, and that he did get some of those records but failed to use
36
them at trial. Although Petitioner argues that the failure to produce these
medical records compounds the failure to offer expert testimony, the fact remains
that Petitioner was unable to point to the existence of any specific records that
might have been relevant at trial and whether there was any reasonable
likelihood that the outcome would have been different if they had been
presented. In short, Petitioner has failed to meet her burden and this claim is
denied.
C. Appellate Issues
In claim 19(G), Petitioner argues that Counsel was ineffective for failing to
preserve a challenge to the trial court’s denial of a motion for trial continuance
after it became clear that co-defendant Santiago would not testify at trial due to
the pendency of his own criminal case and his reported intention to invoke his
right to remain silent. The following language from the Superior Court’s
memorandum opinion is determinative of this claim:
Finally, even if properly preserved, appellant has
failed to state an adequate argument. Appellant is
specifically complaining that the testimony of her
paramour, George Santiago, was unavailable to her
because Santiago would have invoked the Fifth
Amendment if called at trial. Appellant maintains that
Santiago’s testimony is vital to her defense of duress
because he was the individual who was responsible
36
N.T. PCRA at 90 and 91.
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for intimidating her. Essentially, appellant is arguing
that with the availability of Santiago’s testimony, she
will have after-discovered evidence that merits a new
trial. Appellant however has no indication as to what
the testimony might entail. There is no reason to
believe that even if he were compelled to testify that
Santiago would necessarily offer favorable testimony
and might simply deny intimidating appellant. After-
discovered evidence provides the basis for an award
of a new trial only were the evidence is of such a
nature and character that a different verdict will result
if a new trial is granted. Neither appellant nor we
have any indication what Santiago’s testimony would
be and whether it would bolster appellant’s case.
Thus, even if properly preserved, appellant’s issue
would not provide relief. Commonwealth v. Unger-
Bacz, No. 2185 MDA 2006 (April 9, 2008, Mem. Op.
at 4) (citation omitted).
Thus, the ineffectiveness claim at 19(G) must be denied.
Petitioner’s claims at 19(H) and 19(I) follow closely on the heels of the
previous claim. Petitioner argues that Counsel should have created a record
regarding Santiago’s invocation of his right to remain silent and that he should
have requested a hearing on whether Santiago could have properly invoked his
Fifth Amendment right. Regardless, we still have no basis to conclude that
Santiago, even if compelled to testify, would have said anything that benefited
Petitioner’s case and therefore we deny these claims as well.
Finally, Petitioner claims in 19(M) that Counsel was ineffective for failing to
preserve or create a record regarding the court’s jury instruction on the defense
of duress. As noted previously, the court gave its charge on duress on two
separate occasions, repeating the language each time. Therefore, in essence
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the jury heard the instruction four times. We have reviewed the charge and do
not find it erroneous, confusing or misleading. Moreover, we note that this issue
was addressed on direct appeal by the Honorable Edgar Bayley in his opinion
pursuant to Pennsylvania Rule of Appellate Procedure 1925 which was filed on
February 16, 2007. Therefore pursuant to the law of the case doctrine, the
contention that the jury instruction was defective has already been rejected by
this court.
IV. Successful Claims - Sentencing Issues
With respect to ineffective assistance of counsel at sentencing,
Petitioner’s claims focus, once again, on the historical case. Specifically, she
contends:
19(A) Trial counsel was ineffective by failing to
request a bill of particulars and/or by failing to motion
the court for a dismissal of the information based
upon the ambiguous quantity of controlled substance
that petitioner was alleged to have possessed with the
intent to deliver;
A. Failure to Litigate Applicability of Mandatory Sentence
At trial, Counsel employed a strategy of conceding Petitioner's guilt but
sought an acquittal based on the affirmative defense of duress. Essentially, he
argued that Petitioner's former paramour, George Santiago, battered and
threatened the Petitioner to coerce her to participate in his cocaine trafficking
operation. In support of this defense, Counsel introduced a great deal of
testimony establishing Santiago's lengthy history of physical abuse of Petitioner.
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Nonetheless, the jury was unconvinced and convicted Petitioner of all charges.
Counsel's strategy was unorthodox and unsuccessful but reasonable in
light of the overwhelming evidence of Petitioner's guilt. An essential feature of
this defense was to concede Petitioner's guilt in all respects. However, when trial
Counsel continued this strategy during sentencing and failed to litigate the
applicability of the mandatory minimum sentence sought by the Commonwealth,
he did so without a reasonable basis and was therefore ineffective. As will be
explained more fully below, Counsel failed to request a bill of particulars or
request a sentencing hearing, both crucial steps that would have provided
Petitioner an opportunity to contest the applicability of the mandatory sentence
she received for the historical charge.
B. Failure to Request a Bill of Particulars
The bill of particulars provides an accused notice of the offenses charged
in order to permit her to prepare a defense, avoid surprise, and be placed on
notice of any restrictions upon the Commonwealth's proof. Commonwealth v.
March, 551 A.2d 232, 235-36 (Pa. Super. 1989). At trial, a defendant cannot be
convicted of an offense for acts other than those listed in the bill. Id. at 236. The
failure to request a bill of particulars can amount to ineffective assistance of
counsel. Id. at 238-39.
At her PCRA hearing, Petitioner credibly testified that she asked Counsel
to request a bill of particulars, but he did not. Her stated reason for the request
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was that she never truly understood the quantity of cocaine she was
charged with possessing. In lieu of the bill, Counsel provided Petitioner with the
Commonwealth's discovery packet to show her how much cocaine was at issue.
These documents did not resolve Petitioner's confusion as the charging
information did not list a specific amount of cocaine for the historical count. As
such, neither Petitioner nor Counsel knew the specific amount of cocaine at issue
in the historical count.
Counsel did not consider this a significant issue because, at trial, there
was ample testimony of Petitioner's significant involvement in a wide-ranging
cocaine distribution ring. Accordingly, Counsel concluded there was no doubt
that she possessed enough to qualify for the heavier mandatory minimum
sentence and any attempt to contest its applicability would be frivolous. The
court disagrees.
Before imposing a mandatory minimum sentence, the sentencing court
must determine whether the predicate offense falls within the parameters of the
sentencing scheme. Commonwealth v. Carroll, 651 A.2d 171, 173 (Pa. Super.
1995). In making this determination, the sentencing court, "shall consider
evidence presented at trial, shall afford the Commonwealth and the defendant an
opportunity to present necessary additional evidence and shall determine, by a
preponderance of the evidence, if this section is applicable." 18 Pa. C.S.
§7508(b) (emphasis added). At the sentencing hearing, a defendant has the
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opportunity to introduce evidence to prove some portion of the narcotics she
possessed were for her personal use rather than for delivery.
In Carroll, the defendant was convicted of possessing heroin with the
intent to distribute. Carroll, 651 A.2d at 172. The total amount of heroin
recovered was 2.7 grams and based on this amount, the defendant potentially
faced a mandatory sentence. Id.; 18 Pa. C.S. §7508. At a sentencing hearing,
the defendant presented extensive evidence of his twenty-five year history of
heroin abuse. Id. Based on this evidence and the evidence at trial, the
sentencing judge found by a preponderance of the evidence that less than 2
grams of heroin had been intended for delivery while the rest had been
possessed for personal use. Id. Accordingly, the sentencing court determined
that the heightened mandatory minimum sentence for possession of more than 2
grams of heroin was inapplicable. The Commonwealth appealed and the
Superior Court affirmed concluding that in light of the additional evidence
adduced at the sentencing hearing, the sentencing court's determination did not
contradict facts found at trial. Id. at 174.
Here, Counsel did not take the opportunity to present additional evidence
and conceded the applicability of the Commonwealth's mandatory minimum
sentence. However, a review of the Commonwealth's presentence investigation
(PSI) indicates that the basis for Petitioner's mandatory sentence for the
historical count was her possession of 101 grams of cocaine. By possessing
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over 100 grams, Petitioner became eligible for a seven to fourteen year
mandatory sentence. 18 Pa. C.S. §7508(a)(3)(iii). As previously stated, there
was ample evidence at trial of Petitioner's involvement in a drug distribution ring.
However, the trial testimony also established, and Counsel was well-aware, that
Petitioner was heavily addicted to cocaine throughout her involvement in the drug
ring. As such, it is virtually certain that at least some of the cocaine Petitioner
possessed at any given time was for her personal use.
Without a bill of particulars, Counsel lacked crucial information necessary
to litigate the applicability of the mandatory sentence. Merely because one’s trial
strategy constitutes a “Hail Mary” pass (Counsel’s terminology) does not
preclude, and in fact demands, parallel planning for the high probability that the
pass will be dropped. The simple act of counting the number of players on the
opposite side of the line of scrimmage may not result in a completion, but will
reduce the chances of being sacked on one’s blindside. Counsel went into trial
with a badly exposed blindside and instead of demanding strict proof of the
amount of cocaine, Counsel extended his strategy of conceding the
Commonwealth's case in all respects to the sentencing phase. While this was a
reasonable strategy in pursuit of the duress defense, following Petitioner's
conviction, Counsel had no reasonable basis not to request a sentencing hearing
and litigate the applicability of the mandatory sentence. See Commonwealth v.
London, 7 Pa. D. & C. 5th 73 (Lancaster Co. 2008) (failure to litigate mandatory
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sentence can be basis for PCRA relief). Further, Petitioner was clearly prejudice
by being subjected to a mandatory sentence of seven to fourteen years rather
than five to ten years.
For these reasons, Counsel was ineffective in failing to litigate the
applicability of the mandatory sentence as to the historical count. Petitioner is
granted PCRA relief on this count and her sentence is vacated and a new
sentencing hearing shall be scheduled.
V. Conclusion
Our criticism of Counsel might lead one to question his effectiveness on
both counts, and not merely his failure with respect to sentencing of the historical
count. To be sure, there is much that we find lacking, but ultimately Petitioner
bore the burden of overcoming the presumption of Counsel’s effectiveness and
she largely failed to do so. At trial, Counsel pursued a novel defense strategy
that failed. However, a strategy’s success or failure is not the measure of the
effectiveness of counsel. Instead, the court looks only to whether there was a
reasonable basis for the chosen strategy. For this reason, despite our misgivings
about some of Counsel’s actions, we are constrained to find his representation
effective in all respects, but for his failure to request a bill of particulars and his
failure to litigate the applicability of the mandatory sentence for the historical
count. Accordingly, the following order is entered:
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ORDER OF COURT
AND NOW, this day of May, 2010, upon consideration of
Petitioner’s Post-Conviction Relief Act petition, after hearing thereon and a
thorough review of the record and the briefs of the parties, we find that Petitioner
has met her burden with respect to Counsel’s failure to request a bill of
particulars and failure to litigate the applicability of the mandatory sentence in the
historical count docketed at CR-2382-2005. In all other respects, Petitioner’s
claims fail. Therefore, we vacate that sentence and direct that a sentencing
hearing be scheduled for Tuesday, June 28, 2011, at 10:00 a.m., in Courtroom
Number 5, on docket CR-2382-2005.
By the Court,
Albert H. Masland, J.
William R. Stoycos, Esquire
Appeals and Legal Services Section
th
16 Floor, Strawberry Square
Harrisburg, PA 17120
Senior Deputy Attorney General
Jacob Jividen, Esquire
For Shelby Unger-Bacz
District Attorney’s Office
:saa
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
: CP-21-CR-2382-2005
SHELBY UNGER-BACZ : CP-21-CR-2383-2005
IN RE: PETITIONER’S POST CONVICTION RELIEF ACT PETITION
ORDER OF COURT
AND NOW, this day of May, 2010, upon consideration of
Petitioner’s Post-Conviction Relief Act petition, after hearing thereon and a
thorough review of the record and the briefs of the parties, we find that Petitioner
has met her burden with respect to Counsel’s failure to request a bill of
particulars and failure to litigate the applicability of the mandatory sentence in the
historical count docketed at CR-2382-2005. In all other respects, Petitioner’s
claims fail. Therefore, we vacate that sentence and direct that a sentencing
hearing be scheduled for Tuesday, June 28, 2011, at 10:00 a.m., in Courtroom
Number 5, on docket CR-2382-2005.
By the Court,
Albert H. Masland, J.
CP-21-CR-2382-2005
CP-21-CR-2383-2005
William R. Stoycos, Esquire
Appeals and Legal Services Section
th
16 Floor, Strawberry Square
Harrisburg, PA 17120
Senior Deputy Attorney General
Jacob Jividen, Esquire
For Shelby Unger-Bacz
District Attorney’s Office
:saa
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