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HomeMy WebLinkAboutCP-21-CR-0518-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. CP-21-CR-0518-2007 : : CHARGE: 1. RECKLESSLY ENDANGERING : ANOTHER PERSON : 2. STALKING v. : 3. RETALIATION AGAINST : WITNESS OR VICTIM : 4. SIMPLE ASSAULT : 5. DRIVING UNDER THE : INFLUENCE, GENERAL : IMPAIRMENT WITH ACCIDENT : 6. RECKLESS DRIVING : (SUMMARY) : JOHN W. KICHMAN, JR. : OTN: K414245-6 : AFFIANT: CHIEF JAMES STONER IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 By Ebert, Jr., J., December 14, 2011 – PROCEDURAL HISTORY 1 On February 29, 2008, Defendant John Kichman, Jr. was found guilty at a non-jury trial 23 of (1) Recklessly Endangering Another Person (M2), (2) Stalking (M1), (3) Simple Assault 45 (M2), (4) Driving Under the Influence (“DUI”), General Impairment with Accident (M), (5) 67 Retaliation Against Witness or Victim (F3), (6) Reckless Driving, a summary offense, and not 8 guilty of (7) Stop Signs and Yield Signs. Defendant filed Post-Sentence Motions on March 7, 2008. On April 18, 2008, Defendant’s Post-Sentence Motions were denied by Order of this Court. Defendant then filed a 1 Order of Court, Feb. 29, 2008. 2 18 Pa.C.S. § 2705. 3 18 Pa. 2709.1(a) (1). 4 18 Pa.C.S. § 2701(a)(1). 5 75 Pa.C.S. § 3802(b). 6 18 Pa.C.S. § 4953. 7 75 Pa.C.S. § 3736(a). 8 75 Pa.C.S. § 3323(b). Notice of Appeal on May 8, 2008. This Court issued an Opinion pursuant to Pa.R.A.P. 1925 on August 1, 2008. The Superior Court of Pennsylvania denied the Defendant’s direct appeal by memorandum opinion filed October 20, 2009 and adopted this Court’s Opinion of August 1, 2008, as its own. Indicative of the way this Defendant has approached this case, a torturous appeal process followed which consisted of numerous pro se filings. On November 30, 2009, Defendant filed an “Application for Reconsideration/Reargument.” In 2010, the Defendant, pro se, filed among other things an “Application for Clarification” on February 1, 2010, an “Application to Dismiss” on February 8, 2010, and an “Application for Relief-Petition for Protection and Change of Venue” on March 17, 2010. Finally, on March 22, 2010, the Defendant filed a pro se Petition for Allowance of Appeal to the Pennsylvania Supreme Court. That matter was filed at docket number 314 MAL 2010. On March 23, 2010, the Superior Court denied the Defendant’s Application for Reconsideration/Reargument in their Court. On March 31, 2010, Defendant filed his first pro se Motion for Post Conviction Collateral Relief. On April 27, 2010, the Defendant filed a pro se Petition to Recuse this Court. Given the fact that Defendant still had a direct appeal pending in the Supreme Court of Pennsylvania, this Court denied the Defendant’s Motion for Post Conviction Collateral Relief by Order of Court dated May 13, 2010. On the same date, this Court denied Defendant’s “Petition for Judge M. L. Ebert to Recuse Himself” by separate Order. The Defendant immediately filed a pro se notice of appeal of these two orders to the Supreme Court of Pennsylvania. On June 15, 2010, the Supreme Court entered the following order: - 2 - th And now, this 15 day of June, 2010, whereas the Appellant is attempting to appeal the Cumberland County Court of Common Pleas Order denying Post Conviction Collateral Relief as premature dated May 13, 2010, the above captioned appeal is hereby transferred to the Superior Court of Pennsylvania pursuant to Pa.R.A.P. 751(b). The Superior Court accordingly docketed the matter to 990 MDA 2010. The Defendant filed a Concise Statement of Matters Complained of on Appeal on May 31, 2010. On June 21, 2010, this Court received a document from the Defendant entitled “CLARIFICATION OF ORDER APPEALED FROM AND APPELLANT’S REQUEST THAT APPEAL REMAIN IN SUPREME COURT” which in essence was a request to the Supreme Court that the Superior Court not hear his appeal but that his allegations of error be dealt with by the Supreme Court directly. Finally, on July 26, 2010, this Court received a letter from the Defendant indicating that he was withdrawing “all pending appeals and motions.” Shortly thereafter, on August 3, 2010, this Court did receive a Notice of Discontinuance of the action docketed to 990 MDA 2010 from the Superior Court of Pennsylvania. All remained quiet for approximately seven months, when on March 9, 2011, the Defendant filed his second Motion for Post Conviction Collateral Relief. Counsel was appointed to represent the Defendant and given thirty (30) days within which to file an amended petition. A hearing on the matter was held on October 5, 2011. At the hearing, Defendant’s counsel advised the Court that while the Defendant had filed a rather voluminous Motion for Post Conviction Collateral Relief, (hereinafter PCCR), that he now decided to pursue only one allegation. That allegation was that the Defendant had requested both of his counsel, Attorney Rominger and Attorney Gover, to withdraw his request for non-jury trial and to proceed with the matter at a jury trial. On the record, the Defendant personally stated that this was his only remaining PCCR allegation. (PCCR Hearing 10/05/11, page 3). On October 7, 2011, the Court - 3 - denied the Defendant’s Motion for Post Conviction Collateral Relief. In that Order the Court made the following specific Findings of Fact: 1. Defendant did not ask either of his counsel to withdraw his waiver of jury trial or to request a jury trial in his case; 2. The recommendation by both of Defendant’s attorneys to waive jury trial was a reasonable course of conduct designed to effectuate Defendant’s interest; 3. Both Defendant’s attorneys provided effective assistance of counsel. The Defendant then filed a Notice of Appeal to the Superior Court on October 20, 2011. On November 4, 2011, the Defendant filed his Concise Statement of the Errors Complained of on Appeal as follows: 1. Defendant wishes to raise issues regarding ineffectiveness of prior counsel, Matthew Gover and Karl Rominger, at trial because he wished to withdraw his jury trial waiver and informed both attorneys at the time that he wished to do so. Defendant believes that he was deprived of his Constitutional right to a jury trial and believes that a jury would have decided the outcome of his case differently had his counsel withdrawn his jury trial waiver as requested; current counsel will be filing a motion to withdraw since there are no issues of arguable merit. Accordingly, the Defendant raises one issue on appeal: ineffectiveness of counsel. Defendant argues that he was deprived of his constitutional right to a jury trial because both attorneys deliberately failed to act upon his supposed request to withdraw his jury trial waiver. He now states that he believes that a jury would have decided the outcome of his case differently had his counsel withdrawn his jury trial waiver. This Opinion is made pursuant to PA.R.A.P. 1925(a) in support of this Court’s earlier finding that Defendant’s counsel was not ineffective given the facts of the case. - 4 - STATEMENT OF THE FACTS At the time Defendant committed his crimes, Patricia Kichman and Defendant were 9 involved in a very contentious bifurcated divorce, pending a property settlement. Ms. Kichman testified that she filed a harassment charge against Defendant because he towed her car from her 10 work place, canceled the tags on her car, and filled her voice mail at work. Accordingly, Ms. Kichman was the alleged victim of the criminal harassment charge and a party to the civil divorce matter. Hearings on both these outstanding cases were scheduled to take place on 11 December 4, 2006. On the morning of November 9, 2006, at approximately 7:00 a.m. Ms. Kichman was on her way to work when she was forced off the roadway and onto the nearby curb to avoid a head 1213 on collision with an on-coming SUV. The SUV was being driven by Defendant. After blocking Ms. Kichman’s way by stopping his car across the center of the road, Defendant got out 14 of his car and approached Ms. Kichman’s car and began banging on the window and yelling. Ms. Kichman drove away and Defendant jumped back into his vehicle and began to pursue her around the blocks of a local residential area. During his pursuit Defendant drove onto 15 the lawns of surrounding houses in an attempt to catch Ms. Kichman. Twice during the pursuit Defendant crashed his SUV into Ms. Kichman’s car with enough force to “buckle the back 16 doors” and cause $4,000 worth of damage to her car. 9 Notes of Tr., Feb. 29, 2008, at 32-34, (Hereinafter “N.T._”). 10 N.T. 36, Commonwealth Exhibit No. 24 (Hereinafter “Comm. Ex.”). 11 Comm. Ex. No. 25. 12 N.T. 17. 13 N.T. 32. 14 N.T. 18-20, 48 15 N.T. 21 16 N.T. 23, 25, 31; Comm. Ex No. 5 - 5 - With “tires squealing” Defendant chased Ms. Kichman approximately three times around 17 the surrounding neighborhood streets striking Carl Malinak’s car two times. During the chase 18 one of Defendant’s tires went flat and he was driving on the tire’s rim. Ms. Kichman was 19 eventually able to escape Defendant’s pursuit and drive back to her home. A local school bus driver, who was on route to pick up children who were standing along the streets of the neighborhood, testified that at one point Defendant’s vehicle came within inches of her bus filled 20 with children. She also described Defendant’s driving as “speeding erratically out of control” 21 while pursuing Ms. Kichman. Corporal Tamanosky first interacted with Defendant upon arrival at the scene and noticed 22 distinct indicia of intoxication. Defendant had “bloodshot” and “glassy” eyes and a noticeable 23 odor of alcohol. The Corporal, based on his nine and a half years of experience, made the 24 determination that Defendant was incapable of safe driving. During the field sobriety tests administered to Defendant, Officer Gelnett noted that he was unable to follow the simple directions such as not moving his head during the horizontal gaze nystagmus test or taking the 25 proper number of steps during the walk and turn test. Defendant was then transported to the 26 Cumberland County Booking Center for the purpose of criminal processing. Defendant stated that he had around five or six, twelve to eighteen ounce beers the night prior at 11:00 p.m., but all the officers testified that the Defendant still had the odor of alcoholic beverage well up to 17 N.T. 45, 80, 81 18 N.T. 53, 80 19 N.T. 31 20 N.T. 89 21 N.T. 88 22 N.T. 95 23 Id. 24 N.T. 96. 25 N.T. 109-11. 26 N.T. 126. - 6 - 2728 8:30 a.m. Defendant submitted to a breathalyzer test at the Booking Center. The result of the test was that Defendant’s blood alcohol content was 0.07% within two hours of his vehicle chase 29 of the victim. During his interview with Booking Agent Charles Rhinehart, Defendant was specifically asked “In your opinion are you under the influence of an alcoholic beverage now?” 30 The Defendant answered yes. DISCUSSION Defendant’s sole issue on appeal is whether he received ineffective assistance of counsel. Defendant specifically appeals on the grounds that both of his attorneys ignored 31 his alleged request to withdraw his jury trial waiver and be tried by jury. The general rule for raising the issue of ineffective assistance of counsel is that a defendant “should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Because Defendant’s claim has been raised and, in this Court’s opinion, fully developed at a Post- Sentence Motion hearing held on October 5, 2011, Defendant has properly raised this issue on direct appeal. In Pennsylvania, counsel is presumed to be effective until the defendant proves counsel was ineffective. See Commonwealth v. Hall, 701 A.2d 190, 200-01 (Pa. 1997). To prove counsel was ineffective, Defendant must show: (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 interests; and (3) but for counsel’s ineffectiveness, there is 27 N.T. 95, 113, 123, 132. 28 N.T. 126. 29 N.T. 127. 30 Commonwealth’s Exhibit No. 22. 31 See Concise Statement of the Errors Complained of on Appeal. - 7 - a reasonable probability that the outcome of the challenged proceeding would have been different. Bomar, 826 A.2d at 855. Given the burden on Defendant for showing ineffective assistance of counsel, this issue is decided largely on Defendant’s credibility in the case. For the reasons below, this Court finds Defendant has not met any of the three prongs of the test because Defendant’s assertions are not credible. First, Defendant’s claim lacks arguable merit. Defendant himself waived his right 32 to a jury trial before Judge Guido. At the hearing, held July 11, 2007, Judge Guido explained to Defendant that he had the right to a jury trial and asked in a colloquy whether Defendant wanted to waive a jury trial, which would result in a trial before a 3334 judge. Defendant waived jury trial and requested a trial before a judge. It makes little sense Defendant can now appeal for ineffective assistance of counsel for an action Defendant himself undertook and validated before Judge Guido. Second, the record indicates Defendant never notified his attorneys that he wanted a jury trial and that Defendant’s counsel took reasonable actions to effectuate Defendant’s interests. Mr. Gover, Defendant’s first attorney, testified on direct 35 examination that he could not recall Defendant ever asking for a jury trial. The Defendant claims that Commonwealth’s Exhibit No. 1, a memorandum from Attorney Gover to the Kichman file supports his claim that he told Attorney Gover that he wanted 32 Order of Court, filed September 18, 2007. 33 Id. 34 Id. 35 Notes of Tr., Oct. 5, 2011, at 54, (Hereinafter “N.T. (10/11) _”). - 8 - 36 a jury trial. An examination of the memorandum provides no support for the Defendant’s claim. The memorandum states as follows: On February 27, 2008, I had two discussions with John Kichman and requested that he come to the office to prepare him for his court date on Friday. He indicated to me that he was not going to come into the office and was not going to cooperate in his defense. He indicated that he would merely sit passive. He further requested that Karl Rominger join him in walking out of the courtroom during the trial. I told him that I would have to request permission to withdraw 37 from the judge. Further that I can’t be put in that type of position. Clearly the memorandum establishes that Attorney Gover wanted the Defendant to come to his office to prepare for his trial which had been scheduled for Friday, February 29, 2008. The memorandum rather than establishing that the Defendant wanted a jury trial shows that the Defendant was planning not to cooperate in his defense and that he wanted to create a public display where he would walk out of the courtroom during the trial. Attorney Gover knew that this was not proper and consequently requested permission to 38 withdraw from the case. Mr. Gover’s request to withdraw as Defendant’s counsel was 39 due to professional and ethical conflicts he had with Defendant. Attorney Gover, an experienced criminal defense attorney, stated that “we were forced into the position of having to litigate it and --- and the non-jury seemed to me given the type of case it was, 40 the best way to challenge some of the charges.” Mr. Gover on cross examination 36 N.T. 13. 37 Commonwealth’s Exhibit No. 1. 38 N.T. (10/11) 54-55. 39 N.T. (10/11) 56. 40 N.T. (10/11) 57. - 9 - repeated his testimony that Defendant never gave any indications, oral or written, that he wanted to request a jury trial. Mr. Rominger, Defendant’s second attorney who was retained after Defendant waived a jury trial, similarly testified that Defendant never approached or communicated 41 to him that Defendant wanted a jury trial. Mr. Rominger further explained that because Defendant’s defense was a technical legal defense, choosing a non-jury trial would be more strategic because a judge could discern and evaluate the Defendant’s technical legal 42 issues better than a jury. Mr. Rominger specifically mentioned he wanted to guard against a “domino effect” in which the jury, finding Defendant guilty on one charge, simply found him guilty of the other charges without understanding the Defendant’s 43 relatively detailed defense strategy. This was a very intelligent strategy. A Defendant at 7:00 a.m. in the morning after a night of drinking cannot be ramming multiple people’s cars, driving through their yards, and endangering children who are waiting on the sidewalk for the school bus. Defendant’s case simply did not have any “jury appeal.” On cross, Mr. Rominger stated that he recalled Defendant approaching him about 44 withdrawing Defendant’s waiver of a jury trial only after the trial. Mr. Rominger elaborated that requesting a jury trial before the trial would have been an interesting tactic 45 because he could have “jammed [Judge Ebert]” and delayed the trial. The Court finds this testimony both enlightening and truthful. Mr. Romingerwanted to delay the trial. There is no doubt that had the Defendant asked him to withdraw his jury waiver he would 41 N.T. (10/11) 38-39. 42 N.T. (10/11) 39. 43 Id. 44 N.T. (10/11) 49. 45 N.T. (10/11) 49. Mr. Rominger explained that he contemplated the idea because this Court had denied his motion for a continuance earlier in the pre-trial process. - 10 - have acted on the request immediately because the denial of the jury trial by the Court would have at minimum created a viable appeal issue. Again, faced with such a fundamental constitutional right, the Court may have been inclined to avoid such an issue and simply grant the request which would have required a continuance to the next scheduled jury trial week. However, on both direct and cross, Mr. Rominger never mentioned another time Defendant requested a jury trial or instructed either himself or Mr. Gover to request a jury trial. Lastly, assuming, arguendo, that Defendant’s counsel was ineffective in choosing a non-jury trial, counsel’s ineffective assistance did not result in Defendant’s conviction. Defendant’s case, simply put, has no jury appeal. Defendant even admitted at his October hearing that he committed and was guilty of some of his crimes. At trial, it would be undisputed that Defendant committed a number of illogical, self-destructive violent acts. Presenting this evidence would bias most juries against the Defendant, whereas a judge could sift through any visceral reaction to the facts and listen to Defendant’s legal arguments. Having a judge instead of a jury is particularly important to the Defendant in this case because, as Defendant’s counsel noted, he was running a technical legal defense. A judge is able to discern and fairly decide these issues, giving Defendant a better chance of acquittal. Thus Defendant’s counsel made a reasonable strategic choice in electing a non-jury trial. Of course, had Defendant withdrawn his waiver of a jury trial prior to his trial, his counsel would have been obligated to withdraw the waiver regardless of any tactical advantages. However, nothing in the record indicates Defendant withdrew his waiver. This Court finds that the testimony establishes Defendant did not make any request to withdraw his jury waiver before his trial. On this issue, the Defendant’s - 11 - testimony was simply not credible. Given the history of this case, this Court is convinced that this Defendant will say or do anything which he feels will advance his position with very little regard for reality or the truth. Therefore, Defendant’s counsel acted reasonably in trying to effectuate Defendant’s interests. CONCLUSION This Court rejects the Defendant’s argument that both of his attorneys were ineffective in not requesting a jury trial for Defendant’s case. Defendant has failed to pass the three pronged test for establishing ineffective assistance of counsel. Defendant’s claim has no arguable merit because Defendant’s counsel did not know Defendant wanted a jury trial and Defendant gave no indications he wanted one until after trial. Furthermore, Defendant himself waived a jury trial before Judge Guido, stating he fully understood his actions. In choosing a non-jury trial this Court finds Defendant’s counsel made strategic choices based on reasonable legal grounds given their choice of presenting a technical legal defense. Finally, it is unlikely that but for Defendant’s counsel electing a non-jury trial, Defendant would have been acquitted. Accordingly, this Court believes Defendant is not entitled to any relief. By the Court, M. L. Ebert, Jr., J. Matthew P. Smith Chief Deputy District Attorney Stephanie L. Cesare, Esquire Assistant Public Defender - 12 -