Commonwealth v. Evans
Commonwealth v. Evans
Opinion of the Court
We here study an appeal from a judgment of sentence imposed following a jury trial at which appellant was found guilty of second degree murder, robbery, kidnapping, conspiracy and prohibited offensive weapons and sentenced to serve a life term.
As the victim, a 68 year old man, approached his parked Cadillac in a shopping center in Lower Merion, Pennsylvania, appellant’s two accomplices forced him at the point of appellant’s sawed-off shotgun into the back seat of the Cadillac and proceeded to follow appellant who was driving a Volkswagen. Appellant and his accomplices drove through Fairmount Park where they took the victim’s wallet before releasing him. The complaint of the victim was recorded by a radio dispatcher:
CALLER: I was coming out of the Acme in Bala and my wife was waiting and I walked to my car and these guys were waiting for me.
RADIO: And what happened?
CALLER: They put me, I can’t talk, I have a heart condition.
RADIO: Yeah, well just ...
CALLER: They put me in the car, cleaned me out. They let me out down here. They had a sawed-off shotgun on me. Okay.
RADIO: Okay.
CALLER: So, I’m standing here waiting.
RADIO: All right, what’s your car there?
CALLER: No, they went with it. I got a black Seville, Cadillac.
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RADIO: Two males?
CALLER: Pardon me?
RADIO: Two males?
CALLER: Yeah, two black ones and, and there was one in a, another one or two in a little Volkswagen was following.
* * Jit * * *
RADIO: Just try, try to relax if you can. They’ll be right there.
*124 CALLER: Okay.
RADIO: I’m gonna just keep you on the line.
CALLER: Okay.
RADIO: Which way did they go in your Cadillac, do you have any idea?
CALLER: They kept riding along this road that goes past the Playhouse.
RADIO: Do you have any medication that you could be taking or anything?
CALLER: Yeah, I got a nitro.
RADIO: You got it with you?
CALLER: Yeah, I took one.
RADIO: Okay.
CALLER: I’m having a little trouble breathing.
RADIO: Yeah, I, I know it’s tough to relax.
CALLER: Yeah, I ...
RADIO: But, but the worst ...
CALLER: I was very ...
RADIO: You know ...
CALLER: Yeah, that’s all ...
RADIO: I, I know it’s a frightening experience.
CALLER: The first time I ever had this happen.
RADIO: Yeah, If you have to go to the hospital you just tell the police when they get there if that’s your condition.
CALLER: No, I don’t want, I don’t think I have to go to the hospital.
RADIO: All right. I just want to stay on there until you see a, the police come up on you because in that Park sometimes it’s a little tricky.
CALLER: I wish they’d get here.
RADIO: Yeah, they, they’ll be, they should be there any second. Let me know when you, you know, when they come up on you, they, they should be there by now. You don’t see anything yet?
CALLER: I’m having trouble breathing, I wish ...
*125 RADIO: You are? Well, they, they, I ... didn’t see anybody fly by you did you, any police cars?
CALLER: No, no.
RADIO: Well, there’s several units enroute there, I, I’m following it on the screen here..... I mean, the job’s been on.
CALLER: I’m having trouble breathing.
RADIO: You are?
CALLER: Yeah, I’m having......yeah, here they are now.
RADIO: All right, tell them about your breathing. Shortly after the police arrived, they rushed the victim to a nearby hospital where he died within four hours as a result of cardiac arrest.
Appellant contends that trial counsel was ineffective since he did not express, and thereby preserve, certain issues in post-verdict motions. The limits of our review upon this contention are well established:
When we study a claim of ineffectiveness of counsel, we first determine whether the claim is of arguable merit. Only if the underlying claim is of arguable merit do we consider whether the strategy chosen by trial counsel has some reasonable basis designed to effectuate the interest of the client. Commonwealth v. Evans, 489 Pa. 85, 94, 413 A.2d 1025, 1028 (1980); Commonwealth v. Kaufman, 307 Pa.Super. 63, [73], 452 A.2d 1039, 1044 (1982). Our review of the claim that counsel was ineffective is governed by the standard enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):
[Counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon*126 as it is determined that trial counsel’s decisions had any reasonable basis.
Id., 427 Pa. at 604-05, 235 A.2d at 352-53. (emphasis in original).
Commonwealth v. Mayfield, 318 Pa.Super. 450, 451-54, 465 A.2d 40, 41-42 (1983). Accord Commonwealth v. Clem-mons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984). In light of these principles, we address appellant’s claims of ineffectiveness.
Appellant first contends that trial counsel was ineffective for failing to preserve in post-verdict motions the assertion that since there was no probable cause to believe that he was a felon, his arrest was unlawful. Appellant argues, therefore, that his inculpatory statement
The function of this Court, when reviewing the denial of a motion to suppress, is to determine:
[Wjhether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.
Commonwealth v. W.P., 302 Pa.Super. 66, 69, 448 A.2d 97, 98 (1982) quoting Commonwealth v. Hunt, 280 Pa.Super. 205, 207-208, 421 A.2d 684, 685 (1980). The record, viewed in accordance with this standard, reveals that appellant and three companions were arrested while driving in a different stolen car
The benchmark of a warrantless arrest is the existence of probable cause, namely, whether “the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.” Commonwealth v. Wagner, 486 Pa. 548, 556, 406 A.2d 1026, 1030 (1979) quoting Commonwealth v. Perry, 468 Pa. 515, 520, 364 A.2d 312, 315 (1976). “A warrantless arrest for a felony will be upheld where police have probable cause to believe (1) that a felony has been committed and (2) that the person to be arrested is the felon.” Commonwealth v. Derrick, 322 Pa.Super. 517, 532, 469 A.2d 1111, 1119 (1983). An arresting officer, in executing a valid arrest, may rely upon radio broadcasts emanating from police facilities provided, however, that the arresting officer has been either (1) ordered or directed to perform the arrest by an officer in possession of facts justifying the arrest; (2) received information justifying arrest; or (3) heard information which, coupled with facts he personally observed, provided probable cause to arrest. Commonwealth v. Gambit, 274 Pa.Super. 571, 577-578, 418 A.2d 554, 557 (1980) aff'd., 501 Pa. 453, 462 A.2d 211 (1983). Accord Commonwealth v. Prengle, 293 Pa.Super. 64, 67, 437 A.2d 992, 994 (1981). Moreover, it is
We believe that the NCIC information in and of itself provided the arresting officer with sufficient probable cause to justify the warrantless arrest of appellant. Moreover, the arrest was further justified by the plain view discovery of the sawed-off shotgun from within the car. Thus, the arrest was lawful and this claim of ineffective assistance of counsel must be rejected.
Nor is there any merit to the claim that counsel was ineffective by reason of the failure to assert in post-verdict motions that the confession of appellant should have been suppressed on the grounds that appellant had not knowingly and intelligently waived his Miranda
Appellant further claims that the stewardship of trial counsel was less than effective by reason of the failure of counsel to preserve the assertion that the evidence was insufficient to sustain a conviction of second degree murder. Appellant argues that since the death of the victim
The evidence was clearly sufficient to convict appellant of second degree murder. The Commonwealth introduced testimony of a forensic pathologist who opined:
The cause of death was due to the arteriosclerotic heart disease, the heart disease I described aggravated by the robbery and the kidnapping. The manner of death was homicide.
The statute defining second degree murder does not require that a homicide be foreseeable; rather, it is only necessary that the accused engaged in conduct as a principal or an accomplice in the perpetration of a felony. It cannot be denied that the felonious conduct of appellant not only “started an unbroken chain of causation”, but also was a “direct and substantial factor” in bringing about the death of the victim. There is, therefore, no merit to this sufficiency assertion. Accordingly, the claim that counsel was less than effective for this reason is rejected.
Appellant further contends that trial counsel was ineffective for failing either to express a motion in limine to preclude admission of evidence of other crimes or to move for a mistrial when the Commonwealth sought to introduce such evidence. The Commonwealth presented testimony concerning the circumstances surrounding the arrest of appellant and included reference to (1) the NCIC broadcast which verified that appellant and his accomplices were riding in a car which had been stolen or used in a crime and were armed; (2) the fact that appellant had produced a registration card for that vehicle and indicated that it was his uncle’s car; and (3) the discovery of the sawed-off shotgun from under the driver’s seat. The Commonwealth, in addition, cross-examined appellant upon the open charges against him in connection with that stolen automobile. “It is well settled in Pennsylvania that evidence of criminal activity not charged in the indictment or information on which the defendant is being tried cannot be introduced at trial except in certain limited circumstances.” Common
As heretofore observed, our preliminary .inquiry in reviewing an allegation of ineffective assistance of counsel is whether the claim that counsel failed to assert possessed arguable merit. Commonwealth v. Parker, 503 Pa. 336, 339, 469 A.2d 582, 584 (1983); Commonwealth v. Lesko, 502 Pa. 511, 514, 467 A.2d 307, 309 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 276, 372 A.2d 687, 695 (1977). Only where the underlying issue is found to be of arguable merit do we proceed to determine whether the particular course of action chosen by counsel had some reasonable basis designed to effectuate the interests of his client. Commonwealth v. Clemmons, supra, 505 Pa. at 361, 479 A.2d at 957; Commonwealth v. Garvin, 335 Pa.Super. 560, 564, 485 A.2d 36, 38 (1984).
We agree with appellant that there is arguable merit to his contention that trial counsel should have attempted to prevent the jury from learning of the criminal activity which resulted in his arrest in Atlantic City, New
This Court, sitting en banc, in Commonwealth v. Garvin, supra, concluded that the use of the harmless error standard is appropriate in determining whether a defendant is entitled to a new trial based upon a claim of ineffective assistance of counsel. “A finding that appellant is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant.” Commonwealth v. Garvin, supra, 335 Pa.Superior Ct. at 566, 485 A.2d at 39 (citations omitted). See also Commonwealth v. Galloway, 302 Pa.Super. 145, 154, 448 A.2d 568, 573 (1982).
We are convinced as a result of a review of the evidence in the instant case, which included appellant’s confession, that appellant was not prejudiced by the failure of counsel, even if it was the result of neglect, to challenge the admission of evidence concerning the unrelated criminal activity. Since we find the omission, even if error, to have been harmless, we reject appellant’s argument that he is entitled to a new trial as a result of counsel’s failure to attempt to prevent the admission of the evidence of unrelated criminal activity.
Appellant next challenges the legality of his sentence on the basis of the statutory bar against conviction of multiple inchoate crimes which is set forth in Section 906 of the Crimes Code, 18 Pa.C.S. § 906. “A person may not be convicted of more than one Section 906 offense defined by
Judgment of sentence affirmed with the exception of the judgment of sentence for prohibited offensive weapons which is vacated. Jurisdiction relinquished.
. Appellant was sentenced to a term of life imprisonment for second degree murder and to concurrent sentences of from five years to ten years for conspiracy and from two and one-half years to five years for the weapons offense, the latter to be served in consecutive fashion. The sentencing judge concluded that the offenses of kidnapping and robbery merged into the second degree murder conviction.
. Appellant is represented by new counsel on appeal and has thus satisfied the rule that “ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents the appellant.” Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978) .
. Prior counsel filed a brief to this Court containing assertions which had neither been raised in post-verdict motions nor expressed in the statement of matters complained of. Nonetheless, newly appointed appellate counsel states in his brief: “issues raised in the prior brief filed by [trial counsel] are adopted by counsel and no additional argument will be made on those issues.” Since trial counsel not only failed to comply with Pa.R.Crim.P. 1123, but also failed to heed the directive of the trial judge that a statement of matters complained of be filed, and since appellate counsel does not claim that trial counsel was ineffective by reason of the failure to properly preserve the assertions set forth in the prior brief, those assertions have been waived. See Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) ; Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983).
. Appellant gave the following statement on September 30, 1980, each page of which he initialed and signed:
"Me, Mark and Wyatt was over at my house on Thursday, 9-18-80. So we decided to go up to City Line Avenue and find somebody to rob.
We drove my brother’s, Reggie’s blue Volkswagen. So we rode up there to City Line & 47th Street.
So Mark looked over and saw a man parking his car in the parking lot. So Mark jumped out and ran over to see where the man went. We found out where the man went and he came back and got back in the Volkswagen, told me to pull up aside him.
So I pulled up aside him and went over to the donut shop and bought some donuts and as I was coming out they was putting the man inside the car.
I got in the Volkswagen and started turning down 47th Street and Mark and them turned all the way around from the parking lot and they followed me all the way down 47th Street.
I turned to Conshohocken and then Belmont and Monument and made a left turn and went up all the way up the road. I turned around because I couldn’t see Mark and him. And I saw Mark and then turning the wrong way.
So I told them to turn and go this way and there was only Mark and Wyatt in the front seat. And so they followed me to North Philly to my grandmother’s house, 25th & Nicholas Streets.
We talked about who could we sell the car to. So we couldn’t find anybody to sell it to. So all three of us drove home in the Volkswagen and went to bed. We split up the money and they gave me $5.00 and they kept the rest.” (N.T. 191-93)
The statement of appellant also includes, in part, the following dialogue between the investigating detective and appellant:
QUESTION: “Did Mark and Wyatt have any guns?”
*127 ANSWER: “They had a shotgun.”
QUESTION: "Who had the shotgun?”
ANSWER: “Mark did.”
QUESTION: "Describe the shotgun.”
ANSWER: "Sawed-off shotgun, Sears Roebuck.”
QUESTION: “Whose shotgun is it?”
ANSWER: "It’s mine. I bought it off the street two years ago.” ******
QUESTION: “What was taken from the white man?”
ANSWER: “His wallet and the car.”
******
QUESTION: “Whose idea was it to rob somebody?”
ANSWER: "All of ours.” (N.T. 193-97).
. It was established at the suppression hearing that this car had been stolen earlier that same day in Philadelphia by appellant and his accomplices who accosted its owner and forced him into the car by placing a sawed-off shotgun to his head. Again, the trio took a wallet and vehicle registration from the victim before releasing him.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. See and compare: Commonwealth v. Hicks, 483 Pa. 305, 386-387, 396 A.2d 1183, 1186-1187 (1979) (murder conviction sustained where 63 year old victim died from acute cardiac failure due to pre-existing arteriosclerotic heart disease which had been aggravated by severe stress as a result of an assault by the accused); Commonwealth v. Kingsley, 480 Pa. 560, 566-570, 391 A.2d 1027, 1030-1032 (1978) (evidence sufficient to sustain finding that decedent’s death was caused by accused where decedent died nine hours following a physical assault and after decedent had refused medical attention); Commonwealth v. Rice, 477 Pa. 221, 225, 383 A.2d 903, 905 (1978) (felony-murder conviction sustained where the accused grabbed the victim’s purse as a result of which she fell to the ground and struck her head on the sidewalk causing her death); Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 804-805 (1976) (voluntary manslaughter conviction upheld where multiplicity of blows by accused complicated the victim’s pre-existing heart condition causing his death).
Concurring Opinion
concurring:
I agree that the conviction for second degree murder and conspiracy should be affirmed and that the sentence for prohibited offensive weapons should be vacated. However, I believe the issue of whether the prohibited offensive weapons sentence must be vacated merits further discussion.
The Commonwealth now argues that Brown is precedent for the proposition that Section 906 was intended to apply only to conspiracy, solicitation and attempt and, therefore, that the sentence for prohibited offensive weapons should be allowed to stand. I find the Commonwealth’s argument to be most disingenuous.
As noted above, the statement in Brown relied upon by the Commonwealth is not binding precedent, but merely dicta. Furthermore, the language in the sole case relied on in that dicta, Zappacosta, was itself dicta. There, as in Brown, the court held that the two inchoate offenses charged had not involved conduct designed to culminate in the commission of the same crime. There, as in Brown, the court nevertheless went on to state that Section 906 was meant to apply only to conspiracy, solicitation and attempt.
Considering the dicta relied on by the Commonwealth, the numerous cases holding contrary to that dicta, and the express language of Section 906, I must conclude that that section does not apply only to the offenses of conspiracy, solicitation and attempt. Since I find that Section 906 can also prohibit a conviction for the inchoate offense of prohibited offensive weapons, I agree that the judgment of sentence for prohibited offensive weapons must be vacated.
. I note that Brown is the only appellate decision to have ever cited Zappacosta.
Concurring in Part
concurring and dissenting:
I agree with the majority that there is at least arguable merit to appellant’s contention that trial counsel should have prevented the jury from learning about the unrelated crimes for which appellant was arrested in Atlantic City. I am unable to agree, however, that the introduction of evidence of unrelated criminal activity was harmless. See generally: Commonwealth v. Martinez, 301 Pa.Super. 121, 447 A.2d 272 (1982). Therefore, I would remand for an
In all other respects I agree with and join Judge McEWEN’s careful analysis and disposition.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Reid EVANS, Appellant
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- 44 cases
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- Published