Commonwealth v. Howard
Commonwealth v. Howard
Opinion of the Court
OPINION OF THE COURT
The Appellant, Melvin Howard, was convicted of first degree murder
In all cases where we affirm the judgment of sentence of death, this Court must conduct an independent review of the sufficiency of the evidence on the charge of murder of the first degree without regard to whether the Appellant had challenged his conviction on that ground. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3
The facts of the incident resulting in the death of Clarence Woodlock as established at trial are as follows. Shortly after midnight on September 27, 1987, Appellant was involved in an altercation with two men, one of whom was the decedent, at the intersection of 52nd and Market Streets in Philadelphia. Appellant called out for help, and four men came to the scene and chased the decedent and the other man away. Shortly thereafter, the decedent returned with a piece of wood, which he swung at Appellant. Appellant then pulled out a knife. The decedent and the other man took off in different directions. Appellant, along with three or four other men, pursued the decedent, who threw his piece of wood at Appellant but missed. Appellant continued to chase the decedent until the decedent fell, and as he started to get up Appellant punched him and knocked him to the ground. Appellant began to stab the decedent repeatedly, at one point using both hands to plunge the knife into decedent’s chest. Appellant then left the scene, fled to Georgia where his mother lived, and was eventually arrested there. The knife was not recovered.
Appellant was tried before a jury. The Commonwealth’s witnesses included an eyewitness who testified as to the events. Additionally, the investigating and arresting officers testified, as did the assistant medical examiner for the city and county of Philadelphia who testified that the decedent’s body contained 16 wounds consistent with those caused by a knife. Appellant did not testify, and the only witness presented by the defense was trial counsel’s assistant who testified that Appellant was right-handed.
Through appellate counsel, Appellant asserts various issues of trial error and ineffective assistance of counsel before this court with respect to the verdicts of guilt. These issues were raised in post-trial motions, and all were found to be meritless.
I. Error of the Trial Court
First, Appellant argues that the trial court erred in permitting the Commonwealth to introduce evidence of a statement by Appellant at the time of arrest which incorporated “other crimes” evidence. The arresting officer testified that when Appellant was arrested in Georgia, Appellant asked the police what he was being arrested for. “For murder,” he was told. Appellant then replied, “Which one?” Appellant alleges that this statement creates the inference that Appellant was referring to more than one murder that he had committed, that this was therefore evidence of prior crimes, and that such evidence is typically inadmissible absent a specific exception.
Appellant’s argument is erroneous. Appellant’s contention that this evidence referred to other murders committed by Appellant and that the jury would so interpret it that way is not a reasonable implication. In fact, it was only defense counsel that drew this conclusion in his closing argument, when he made a joke out of the idea that the Appellant may have committed so many murders that he had to inquire which among them he was being arrested for. The context in which this testimony was elicited would not create the inference that Appellant suggests. The response “Wfiiich one?” was an attempt by the Appellant to determine with whose murder he was being charged. The Commonwealth was clearly attempting to establish that Appellant had knowledge of the murder
Appellant also contends that the trial court erred when it ruled that Appellant could not offer evidence that he was right-handed — specifically, by signing his name for the jury to see — without being subject to cross-examination. Appellant argues that this ruling forced him to decline his name-writing demonstration and instead offer the testimony of counsel’s assistant. Appellant fervently argues that such demonstration should not be subject to cross-examination. Regardless of the merit of that contention, we fail to see how Appellant could have been harmed by the court’s ruling. Whether Appellant was right- or left-handed was of dubious relevance since according to the medical examiner who testified, handedness could not be definitively determined by knife wounds. Moreover, the testimony of the eyewitness indicated that Appellant used both hands while stabbing decedent. Finally, Appellant was in fact able to enter evidence as to his handedness; we cannot see how his demonstration would have been that much more probative than the assistant’s testimony so that his being precluded from presenting it would rise to the level of error requiring a new trial. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) (error is harmless if evidence is so overwhelming and prejudicial effect of the error is so insignificant that it is clear beyond a reasonable doubt that the error is harmless).
II. Ineffective Assistance of Counsel
Appellant raises several arguments alleging ineffective assistance of trial counsel. In order for Appellant to prevail on each claim of ineffective assistance of counsel, he must show (1) the underlying claim is of arguable merit; (2) the particular course of conduct of counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel’s ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
Appellant next contends that trial counsel was ineffective when he failed to object, move for a mistrial or request a cautionary instruction following introduction of evidence of Appellant’s post-arrest silence. During the testimony of the arresting officer, the following exchange occurred:
BY THE PROSECUTOR
Q: Now, did he say anything else to you about him being down there [in Georgia]?
A. No, sir.
Q. How about before he said, “Which one,” did he say anything abut how long you had seen him down there? A. The only oral statement he made to me were, you know, “Why you just arresting me now? You seen me before now.”
Additionally, during the closing argument, the prosecutor stated:
Mr. Alva [Appellant’s trial counsel] gets up here and says, the defendant says a lot of things. Well, who, me, what, where, when, how? I didn’t do that. Is that what you heard the defendant said [sic] when the officer arrested him? Or what it real clear what he said? Which one? You’re here, I got you, we have a murder warrant. Which one. You decide what that means, ladies and gentlemen.
Appellant’s ineffectiveness argument must fail because there is no merit to the underlying claim. Here, the prosecu
Appellant’s third allegation of ineffective assistance of counsel relates to trial counsel’s failure to request a cautionary instruction concerning a photograph of the Appellant. During examination of the eyewitness, a photograph of the Appellant was shown to the witness for identification purposes rather than having the witness identify Appellant by name because the witness only knew Appellant by his nickname, “Q,” or “Sin Q.” This photograph was never shown to the jury and was not admitted into evidence. On cross-examination, defense counsel showed the witness a photograph of another man, who was known as “QB,” and referred to such photograph as a “mug shot.” Apparently, trial counsel’s strategy was to imply that the eyewitness may have confused Appellant with this man known as “QB.” The photograph of QB was not shown to the jury, nor was it admitted into evidence.
During jury deliberations, the jury sent a request to the judge to view the “mug shots” of Appellant and QB. This request was denied. The next day, trial counsel requested a cautionary instruction with respect to the jury’s reference to the picture of Appellant being a “mug shot”; however, the jury returned with a verdict before the instruction could be given.
Appellant now argues that the jury’s conclusion that Appellant’s photograph was a “mug shot” demanded a cautionary instruction because the jury must have inferred prior criminal conduct by Appellant, and counsel’s failure to timely
Additionally, Appellant must show that, absent the alleged ineffectiveness of counsel, the result in his case would have been different. Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993); Pierce, supra. Based on these facts, we cannot conclude that the jury’s verdict was the result of any inference of prior criminal conduct by Appellant and that the result in this case would have been different had the jury been cautioned not to make such an inference.
Appellant next argues that trial counsel was ineffective when he failed to timely request that the jury be instructed that no adverse inference could be drawn from the defendant’s failure to testify (the “no-adverse-inference charge”).
First, we find merit in Appellant’s underlying claim that he was denied his constitutional rights in violation of Article I, Section 9 of the Pennsylvania Constitution
The Commonwealth here argues that the trial court gave the jury a clear no-adverse-inference charge during voir dire. In Lewis, this Court rejected a similar argument when the jury was given various instructions during voir dire, none of which specifically stated that no adverse inference could be drawn from the defendant’s failure to testify. This Court refused to recognize an indirect, piecemeal approach to charging the jury. In Lewis, this Court stated:
Having determined in this Commonwealth that a “no-adverse-inference” charge is necessary to secure the guarantees of Article I, section 9, the judge has either given the charge or he has not. Make-shift substitutes will not suffice. Juries must be told in no uncertain terms that no adverse inference may be drawn from a defendant’s failure to take the stand; otherwise, we are left to mere guesswork as to the meaning juries have ascribed to tangentially related words of the court.
Lewis, 528 Pa. at 450, 598 A.2d at 980.
The record here indicates that the jurors were specifically told during voir dire that if the defendant failed to present evidence or take the stand in his defense, that could not be held against him; however, such charge was not repeated at the end of the trial when the jury was given its final instructions. Although in Lewis no clear statement of the no-adverse-inference charge was given at all, we believe that the reasoning in Lewis applies equally to this situation— where the jury is given the no-adverse-inference charge but only during voir dire — and hold that the no-adverse-inference
Second, there was no reasonable basis for trial counsel’s course of conduct. Here, trial counsel failed to request the instruction until after the jury had been sent out to deliberate. This request was patently not “timely.” It is quite evident from the record that trial counsel’s failure to request the charge in a timely manner was unreasonable. Although as the trial court noted, not requesting the no-adverse-inference charge may in certain circumstances be a reasonable course of conduct, see, e.g., Commonwealth v. Edwards, 535 Pa. 575, 637 A.2d 259 (1994); Lewis, 528 Pa. at 455 n. 14, 598 A.2d at 983 n. 14; this argument is irrelevant to the facts here, where trial counsel did ask for the charge, but in an untimely manner. It is true, as the trial judge also noted, that the reasonableness of counsel’s actions must be viewed from an objective standard established by the record, not a subjective one. However, the trial court’s conclusion that trial counsel was reasonable from an objective standpoint — that is, that it was counsel’s strategy not to ask for the no-adverse-inference charge, and such strategy is objectively reasonable — cannot stand in light of the detailed record on this point.
Finally, Appellant must show that he was prejudiced by trial counsel’s actions. As noted above, this Court has held under Pierce and its progeny that a defendant is required to show actual prejudice; that is, that counsel’s ineffectiveness was of such magnitude that it “could have reasonably had an adverse effect on the outcome of the proceedings.” Pierce, 515 Pa. at 162, 527 A.2d at 977. This standard is different from the harmless error analysis that is typically applied when determining whether the trial court
Here, Appellant does not specifically identify how he was in fact prejudiced, but appears to simply rely on Lewis. Lewis, however, in and of itself does not answer the question whether a defendant is prejudiced by his or her attorney’s failure to request the no-adverse-inference charge. Lems stands for the proposition that it can never be harmless error for the trial court to fail to give the charge if it is timely requested by counsel. However, as discussed above, it is not axiomatic that what can never be harmless error by the trial court equates to ineffective assistance of counsel. Under Pierce and its progeny, a defendant is required to show that counsel’s ineffectiveness was of such magnitude that the verdict essentially would have been different absent counsel’s alleged ineffectiveness. Appellant has not identified to this Court how he was in fact prejudiced. Nor can we discern from an independent review of the record how Appellant was prejudiced. Therefore, because Appellant has failed to meet the third prong of the Pierce test, this claim must fail.
Appellant’s last claim of ineffective assistance of counsel involves trial counsel’s failure to object to a jury instruction on prior inconsistent statements when the instruc
In any event, we find that the trial judge’s instruction was proper. The instruction did not limit the examination of the witness’s prior statements for impeachment purposes only. Because the court did not preclude the jury from considering these statements as substantive evidence, there was no basis for an objection by counsel. Blount, 387 Pa.Super. at 612-613, 564 A.2d at 957.
Finally, pursuant to 42 Pa.C.S. § 9711(h)(3), we have the duty to affirm the sentence of death unless we determine that:
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;
(ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or
(iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
After review of this case, we find that the sentence imposed was not the product of passion, prejudice, or any other arbitrary factor. We also find that the evidence supports the jury’s finding of the aggravating circumstance specified in 42 Pa.C.S. § 9711(d)(9). The record establishes that at
In addition, after reviewing the information compiled by our Administrative Office in accordance with the requirements set forth in Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, cert. denied, 469 U.S. 968, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984), we do not find the sentence imposed upon this defendant to be disproportionate to the sentence imposed upon defendants in similar cases.
Accordingly, we affirm the Judgment of Sentence of Death imposed upon the Appellant, Melvin Howard, by the Court of Common Pleas of Philadelphia County.
Judgment of Sentence affirmed.
. 18 Pa.C.S. § 2502(a).
. 18 Pa.C.S. § 907.
: A sentence of guilt without further penalty was imposed for the violation of 18 Pa.C.S. § 907.
. 42 Pa.C.S. §§ 722(4), 9711(h)(1); Pa.R.A.P. 702(b).
. 42 Pa.C.S. § 9711(d)(9) (the defendant has a significant history of prior felony convictions involving the use or threat of violence to the person.)
. The no-adverse-inference charge as included in the Pennsylvania Suggested Criminal Jury Instructions is as follows:
3.10A (Crim) DEFENDANT’S FAILURE TO TESTIFY NOT EVIDENCE OF GUILT
It is entirely up to the defendant in every criminal trial whether or not to testify. He has an absolute right founded on the Constitution to remain silent. You must not draw any inference of guilt from the fact that the defendant did not testify.
. These facts were stipulated to for the record by defense counsel, the prosecutor and the trial judge after the reading of the verdicts.
. Article I, Section 9 provides as follows:
Sec. 9. Rights of accused in criminal prosecutions In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face-to-face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers of the law of the land.
. The Lewis case was, however, presented to the trial judge on post-trial motions.
. Although we note that as a general rule counsel cannot be found ineffective for failing to anticipate changes in the law, see e.g., Commonwealth v. Johnson, 516 Pa. 407, 532 A.2d 796 (1987), we emphasize that in this case Carter was available to counsel and counsel was in fact aware of the importance of the no-adverse-inference charge, as evidenced by his request, albeit untimely, for the charge.
. The Prothonotary of the Supreme Court is directed to transmit the complete record of the case sub judice to the Governor of Pennsylvania. 42 Pa.C.S. § 971 l(i).
Dissenting Opinion
dissenting.
I dissent. I cannot conclude as the majority has that Appellant’s counsel was effective in light of the majority’s proper analysis that Appellant was denied his constitutional rights in violation of Article 1, Section 9 of the Pennsylvania Constitution. I agree with the majoritys analysis that trial counsel acted improperly when he failed to request a “no-adverse inference” jury instruction and that no reasonable basis existed for trial counsel’s course of conduct. My dis
The burden placed on the Appellant by the majority in this instance is both impossible and absurd and highlights the unfairness of the prejudice element of the Pierce standard.
As can be seen by this scenario, Appellant could never establish the required prejudice. As such, I would adhere to my reasoning set forth in my dissent in Commonwealth v. Pierce, supra, that if there is no reasonable basis to support trial counsel’s action, his action a fortiori was prejudicial to his client. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), Zappala, J., dissenting.
. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee, v. Melvin HOWARD, Appellant
- Cited By
- 156 cases
- Status
- Published