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HomeMy WebLinkAbout94-1437 CRIMINALCOMMONWEALTH V. CHRISTOPHER HESS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-1437 CRIMINAL TERM IN RE: OPINION PURSUANT TO Pa. R.A.P. Guido, J., May ,2002 On September 8, 1995, a jury found the petitioner guilty of rape and various related sex offenses. On June 13, 2001, he filed this request for relief under the Post Conviction Relief Act (PCRA). ~ An evidentiary hearing was held before us on November 21, 2001.2 At that hearing, petitioner abandoned all issues except the claimed ineffectiveness of his trial counsel in allowing an objectionable page of the victim's hospital records to go out with the jury during deliberations. At his request, the hearing was continued. A second evidentiary hearing was held on February 27, 2002. At the conclusion of that hearing we denied petitioner's request for relief. Ineffective assistance of counsel may be grounds for relief under the PCRA. 42 Pa. C.S.A. § 9543 (a)(2)(ii). However, in order for relief to be granted, the petitioner must prove his claim by a preponderance of the evidence. 42 Pa. C.S.A. § 9543. In the instant case, petitioner did not meet that burden. 42 Pa. C.S.A. 9541, et seq. See Transcript of Proceedings, November 21, 2001, page 2. NO. 94-1437 CRIMINAL The defendant did not present any testimony to support his claim. He merely offered into evidence portions of the trial record. These included 1) the objectionable page of the medical records,3 2) a statement which petitioner contends was made by the prosecutor in his closing argument and 3) a statement by the trial judge to counsel at the conclusion of his jury instructions. While neither counsel made reference to the objectionable material in their closing argument, one attorney made the following promise to the jury: And one of the exhibits that you will receive, the hospital record, you will see where (the victim) was interviewed by the nurses at the hospital, and on the one page of that report - - you'll have a chance to look at it.4 At the conclusion of his instructions, the trial judge directed counsel to "try and work out an agreement which exhibits should go out.''5 Petitioner contended that those excerpts from the trial record were sufficient to establish that the objectionable page of the medical records was given to the jury. We disagreed. We were not persuaded that the jury ever saw the objectionable portion of the victim's records. To the contrary, we were persuaded that it did not. While the record is silent as to which exhibits went to the jury during its deliberations, there was ample evidence to support our conclusion. In the first instance, it is clear from the record that the statement referenced in the closing argument was not referring to the objectionable portion of the nurse's notes.6 Furthermore, we cannot conclude that the jury saw any 3 The objectionable material was contained in a portion of the nurse's notes which quoted the victim as stating that petitioner was "on probation for raping 3 women." See Petitioner's Exhibit 1. 4 See Petitioner's Exhibit 3. s See Petitioner's Exhibit 2. 6 In point of fact, it appears that Petitioner's Exhibit 3 does not even come from the prosecutor's closing argument, but rather comes from defense counsel's closing statement. The reference to the hospital record is made to attack the credibility of the complaining witness, and refers to statements that do not appear on Petitioner's Exhibit 1. NO. 94-1437 CRIMINAL portion of that record simply because it was promised in closing argument. However, the most convincing evidence came from petitioner's trial counsel, who testified as follows: Mr. Andrews, you've been the Chief Public Defender here in Cumberland County since sometime in the 1970's is that correct? Since October of 1976. When you would have tried this case on behalf of Mr. Hess, you had over 20 years of experience as a trial lawyer? As a trial lawyer, yes, more than 20 years. Can you recall any cases in which you would have allowed exhibits to be admitted without first reviewing them? No. Okay. Can you recall any cases in which you would have allowed exhibits to go to the jury without first reviewing them? No. So would it be a fair statement that in this case, although you have no specific recollection, that you would have reviewed the hospital records? That's my conclusion. And if you would have reviewed the hospital records, you would have found the particular page to be objectionable? Absolutely. And would not have agreed with Mr. Gery that it go out to the jury? Absolutely. So if it would have gone out to the jury, it would appear on the record that Judge Sheely would have decided that dispute between counsel? That' s correct. Transcript of Proceedings, February 27, 2002, at 11 - 12. Counsel is presumed to be effective and "the unshifting burden to prove ineffectiveness always rests upon the defendant." Commonwealth v. Rivers, 567 Pa. 239, 786 A.2d 923,937 (2001). Since petitioner was unable to establish that the jury ever saw the objectionable material, he did not meet that burden. Therefore, his request for relief was denied. NO. 94-1437 CRIMINAL DATE: Edward E. Guido, J. Jaime M. Keating, Esquire Darrell C. Dethlefs, Esquire