Com. v. Parker, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
JASON PARKER, :
:
Appellant : No. 286 EDA 2013
Appeal from the Judgment of Sentence December 21, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0014583-2011
BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 20, 2015
Appellant, Jason Parker, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following a bench
trial and his convictions for fleeing or attempting to elude police officer,1
criminal mischief,2 simple assault,3 and recklessly endangering another
person.4 Appellant challenges the sufficiency of evidence for his criminal
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3733(a).
2
18 Pa.C.S. § 3304(a)(2). This was graded as a second-degree
misdemeanor. Order, 9/12/12.
3
18 Pa.C.S. § 2701(a).
4
18 Pa.C.S. § 2705.
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mischief conviction, the trial court’s denial of his motion for a medical
expert, the weight of the evidence for all of his convictions, and whether his
trial counsel was ineffective by not having a medical expert testify. We
vacate his conviction and sentence for criminal mischief, and affirm the
remaining convictions. Because Appellant was sentenced to no further
penalty for criminal mischief, we need not remand for resentencing as we
did not disturb the trial court’s overall sentencing scheme.
We adopt the facts and procedural history set forth by the trial court.
See Trial Ct. Op., 10/28/13, at 1-11. We add that Appellant, although
represented by counsel, filed numerous pro se motions,5 including a motion
requesting $2,000 to pay for, inter alia, a “diabetic expert doctor” to testify
on his behalf. Appellant’s Pro Se Mot. to Provide Funds for the Def. to Hire
an [sic] Diabetic Doctor, 5/29/12, at 1. The court did not rule on any of
Appellant’s pro se motions.
After a bench trial and a guilty verdict, the court sentenced Appellant
on September 12, 2012, to nine to eighteen months’ incarceration for fleeing
or attempt to elude a police officer.6 The court imposed no penalty for the
remaining convictions. On September 14, 2012, Appellant filed a timely
counseled post-sentence motion, which did not challenge the weight of the
5
Appellant served his pro se motions on his counsel, among others.
6
We note Appellant rejected a plea offer of nine to twenty-three months’
imprisonment.
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evidence. Before the court ruled on Appellant’s post-sentence motion and
while still represented by his then-counsel, Appellant filed a pro se notice of
appeal on January 9, 2013.
On January 18, 2013, Appellant’s new counsel entered her
appearance. On February 5, 2013, the trial court ordered pro se Appellant
to comply with Pa.R.A.P. 1925(b), but did not serve the order on Appellant’s
new counsel. Appellant then filed a pro se Rule 1925(b) statement on
February 20, 2013. On March 1, 2013, Appellant withdrew his counseled
post-sentence motion. On April 19, 2013, the court granted Appellant’s new
counsel permission to file a revised Rule 1925(b) statement. Appellant’s
counsel filed a revised Rule 1925(b) statement on May 9, 2013.
Appellant raised the following issues on appeal:
Whether the verdict is insufficient as a matter of law
specifically with respect to criminal mischief where
[Appellant’s] acts do not meet the definition of the crime
because he did not utilize any hazardous materials or
tamper with any tangible objects as required by the
crime[.]
Whether the trial court erred in denying [Appellant’s]
motion for medical expert[.]
Whether the verdict was against the weight of the
evidence and insufficient as a matter of law where the
police officer’s testimony and the testimony of Nafakha
Muwwakkil were not credible and [Appellant] credibly
testified that he went into a diabetic shock and passed out
behind the wheel? Furthermore, the Commonwealth did
not prove the element of criminal intent as required by
each of the statutes[.]
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Whether the verdict is against the weight of the evidence
where the police did not have probable cause to stop
[Appellant] and pursue him where the police allegedly
attempted to pull him over for talking on a cell phone and
it was legal to do so. The police also did not have probable
cause to stop [Appellant] for failing to have insurance
where the uncontroverted evidence was that this vehicle
was insured[.]
Whether trial counsel was ineffective for failing to present
a medical expert who could have testified to the effects of
diabetes, failing to present [Appellant’s] wife who was an
eyewitness, and misrepresenting to [Appellant] that a
bench trial was in [Appellant’s] best interest?
Appellant’s Brief at 5 (reordered to facilitate disposition).
As a prefatory matter, we resolve the validity of Appellant’s pro se
notice of appeal while he was represented by counsel. In Commonwealth
v. Cooper, 27 A.3d 994 (Pa. 2011), our Supreme Court resolved a similarly
vexing procedural posture involving a premature pro se notice of appeal and
a subsequent, counseled post-sentence motion. Id. at 996. The posture
was further complicated by the trial court’s failure to forward the pro se
notice pursuant to Pa.R.Crim.P. 576(A)(4), the court’s denial of the
counseled post-sentence motion, and a timely counseled notice of appeal.
Id. at 1006-07. The Cooper Court resolved the conundrum by holding,
inter alia, that the pro se notice of appeal was premature and perfected after
the trial court denied the subsequent counseled post-sentence motion. Id.
at 1007.
Given that the instant procedural posture is analogous to the posture
in Cooper, we similarly hold that Appellant’s pro se notice of appeal—filed
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after counsel filed a post-sentence motion but before the court ruled on it—
was premature. Cf. id. at 1005-08. We also hold that Appellant perfected
his appeal after he withdrew the counseled post-sentence motion. Cf. id.
Furthermore, because the trial court failed to serve counsel with its Rule
1925(b) order and the court permitted counsel to file a revised Rule 1925(b)
statement, we decline to find any Rule 1925 waiver. Cf. id.
We now address the merits. In support of his first issue, Appellant
contends the evidence was insufficient to convict him for criminal mischief.
He maintains that he “collided with another car while driving down the wrong
way” of a one-way street. Appellant’s Brief at 14. He suggests that his
conduct was unintentional and, at best, the Commonwealth established
reckless behavior. Id. We hold Appellant is due relief.7
The standard of review for a challenge to the sufficiency of evidence is
de novo, as it is a question of law. Commonwealth v. Ratsamy, 934 A.2d
1233, 1235 (Pa. 2007).
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict.
7
We note the Commonwealth argued the evidence was sufficient for a
conviction under 18 Pa.C.S. § 3304(a)(5). See Commonwealth’s Brief at
12. Appellant, however, was convicted of violating 18 Pa.C.S. § 3304(a)(2).
Trial Ct. Op. at 1; accord Order, 9/12/12, at 1.
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Id. at 1235-36 (citations and quotation marks omitted). “When reviewing
the sufficiency of the evidence, an appellate court must determine whether
the evidence, and all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict winner, are
sufficient to establish all of the elements of the offense beyond a reasonable
doubt.” Id. at 1237 (citation and quotation marks omitted).
The Pennsylvania Crimes Code defines criminal mischief as follows:
(a) Offense defined.—A person is guilty of criminal
mischief if he:
* * *
(2) intentionally or recklessly tampers with tangible
property of another so as to endanger person or
property;
18 Pa.C.S. § 3304(a)(2).
Section 302 of the Crimes Code defines intentionally and recklessly as
follows:
(b) Kinds of culpability defined.—
(1) A person acts intentionally with respect to a
material element of an offense when:
(i) if the element involves the nature of his conduct
or a result thereof, it is his conscious object to engage
in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
* * *
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(3) A person acts recklessly with respect to a material
element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of
such a nature and degree that, considering the nature and
intent of the actor’s conduct and the circumstances known
to him, its disregard involves a gross deviation from the
standard of conduct that a reasonable person would
observe in the actor’s situation.
18 Pa.C.S. § 302(b)(3).
The material element is “tamper,” which is not defined by Chapter 33
of the Crimes Code. Section 302, however, mirrors the proposed language
in the Model Penal Code. Model Penal Code § 220.3(1)(b) (1962) (“A person
is guilty of criminal mischief if he: . . . purposely or recklessly tampers with
tangible property of another so as to endanger person or property”). The
Model Penal Code comment sheds some light on the intended reach of the
statute:
Tampering with Property. Subsection (1)(b) extends
the traditional malicious-mischief offense to situations
where the defendant tampers with the property of another
in a way that may not itself cause damage but that
creates a risk of danger to person or property. Examples
would be the unauthorized moving of a railroad switch, or
the unauthorized setting of a control lever in an industrial
plant in a way that endangers workmen or the quality of
the product. The offense requires that the actor purposely
or recklessly tamper with the tangible property of another
“so as to endanger person or property.” The quoted
phrase describes an actual risk of danger that must exist,
as to which the defendant must at least be reckless.
Actual harm need not occur.
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Model Penal Code § 220.3 note (emphasis added). One dictionary defines
“tamper” as “to interfere so as to weaken or change for the worse.”
Webster’s Third New International Dictionary, Unabridged 2336 (1986).
The Commonwealth must “prove that the nature of [the defendant’s]
conduct was to consciously cause the result the statute here in question
seeks to guard against, i.e., tampering with tangible property of another
with the intent to place person or property in danger.” Commonwealth v.
Moll, 543 A.2d 1221, 1223 (Pa. Super. 1998) (plurality). 8 In Moll, the
defendant was charged with criminal mischief under subsection (a)(2) for
“cutting a hole in a fifteen-inch storm drain pipe.” Id. at 1222. The
defendant admitted to damaging the pipe but denied he had criminal intent:
[The defendant] denies, however, that he was motivated
by malice, i.e., an evil motive, to endanger property.
Rather, he claims that this act was necessary to protect
his property from flooding. The flooding caused damage
to the understructure of [the defendant’s] property, and
his method of “self-help” actually alleviated the problem
because it facilitated surface drainage of water from his
property. We believe [the defendant’s] reasoning here to
be that his conduct did not rise to the level of harm which
the criminal mischief statute was designed to prevent.
Id. at 1223.
8
In Moll, two of the three judges on the panel concurred in the result. “We
are of course mindful that plurality decisions are not binding as precedent.”
Commonwealth v. Antoszyk, 985 A.2d 975, 981 (Pa. Super. 2009)
(citation omitted).
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The Moll Court held that the Commonwealth failed to establish the
defendant intended to damage the pipe with the intended result of
“clogging” and backing up the pipe with the ultimate result of “ponding of
water.” Id. at 1224. The Court also held the Commonwealth did not
demonstrate that the defendant “disregarded an unjustifiable and substantial
risk that his conduct would produce the intended result,” i.e., was reckless.
Id. Thus, regardless of whether the defendant intentionally or recklessly cut
the pipe, the Superior Court held the Commonwealth did not demonstrate
the defendant’s conduct “cause[d] the harm which the statute seeks to
protect against.” Id. at 1225.
Instantly, viewing the record in the Commonwealth’s favor, the
evidence believed by the fact-finder established that Appellant’s vehicle hit
the victim’s car on the passenger side, backed up and “skimmed” the
victim’s car, and then drove back the opposite way, damaging the victim’s
car on the driver’s side. N.T. Trial, 9/12/12, at 14-16. We also acknowledge
that Appellant conceded his actions at least constituted recklessness.
Appellant’s Brief at 14.
Nonetheless, we cannot agree that the record established Appellant
recklessly, i.e., consciously disregarded a substantial and unjustifiable risk,
by interfering—in a non-damaging fashion—with the victim’s car in such a
manner as to create a risk of danger to person or property. See Model
Penal Code 220.3 note (extending “malicious-mischief offense to situations
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where the defendant tampers with the property of another in a way that
may not itself cause damage but that creates a risk of danger to person or
property”). The fact that Appellant recklessly drove his vehicle into the
victim’s car and damaged it is simply not analogous to “the unauthorized
moving of a railway switch, or the unauthorized setting of a control lever in
an industrial plant,” each a non-damaging action. See id. Analogous to the
defendant in Moll, who lacked the intent to clog the pipe, Appellant engaged
in the instant behavior while fleeing from the police. Cf. Moll, 543 A.2d at
1225. Accordingly, even after considering the evidence believed by the fact-
finder, we cannot hold that the evidence was sufficient to establish Appellant
recklessly tampered with the victim’s car in a non-damaging fashion as to
create a risk to person or property. Cf. Model Penal Code 220.3 note;
Webster’s Third New International Dictionary, Unabridged 2336 (1986).
For his second issue, Appellant argues the court erred by denying his
pro se motion for funds to pay for a medical expert to testify about diabetes.
We deny Appellant relief. As noted above, Appellant was represented by
counsel when he filed his pro se motion; thus, the court could not—and did
not—rule on his motion. See Pa.Crim.P. 576(A)(4). Because Appellant did
not properly move for relief through counsel, the trial court did not rule on
the merits of Appellant’s pro se motion. Accordingly, there is no ruling that
could be reviewed on appeal. See generally Pa.R.A.P. 302.
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We summarize Appellant’s arguments for his third and fourth issues.
In support of his third issue, Appellant contends the Commonwealth failed to
introduce evidence establishing an intent to flee the police and damage
another vehicle. He maintains “he blacked out after a diabetic episode and
could not remember what happened.” Appellant’s Brief at 11. For his fourth
issue, Appellant argues the police officer’s testimony was not credible and
thus the police lacked probable cause to stop him for using a cellular phone
while driving and for not having insurance. He maintains that he introduced
evidence he was insured. For both of these issues, Appellant suggests the
verdict was against the weight of the evidence. We hold Appellant waived
his issues.
An argument that witnesses are not credible is an argument
challenging the weight of the evidence. Commonwealth v. Lewis, 911
A.2d 558, 566 (Pa. Super. 2006). The evaluation of the credibility of
witnesses is within the exclusive domain of the fact-finder.
Commonwealth v. Akers, 572 A.2d 746, 752 (Pa. Super. 1990). This
Court cannot “entertain a challenge to the weight of the evidence since [its]
examination is confined to the ‘cold record.’” Commonwealth v. Brown,
648 A.2d 1177, 1191 (Pa. 1994) (citation omitted). We only review whether
the trial court abused its discretion when it evaluated the challenge. Id.
(limiting review of weight of evidence to whether trial court abused
discretion and not assessing credibility of witnesses). For these reasons, a
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challenge to the weight of evidence may not be raised for the first time on
appeal. Id.; see also Pa.R.Crim.P. 607(A). Thus, if the issue is not raised
with the trial court initially, it is waived. Commonwealth v. Sherwood,
982 A.2d 483, 494 (Pa. 2009).
Instantly, Appellant argues the testimony of the Commonwealth’s
witnesses were not credible. Appellant’s argument challenges the weight of
the evidence. See Lewis, 911 A.2d at 566. Appellant, however, did not
raise a weight claim in his post-sentence motion, which he withdrew. Thus,
because Appellant failed to raise his weight claims before the trial court, he
has waived them on appeal. See Sherwood, 982 A.2d at 494.
With respect to Appellant’s last issue, it is well-settled that challenges
to the effectiveness of counsel are generally deferred until collateral review.
See Commonwealth v. Grant, 813 A.2d 726, 739 (Pa. 2002). There are
two exceptions:
First, we appreciate that there may be extraordinary
circumstances where a discrete claim (or claims) of trial
counsel ineffectiveness is apparent from the record and
meritorious to the extent that immediate consideration
best serves the interests of justice; and we hold that trial
courts retain their discretion to entertain such claims.
Second, with respect to other cases and claims,
including cases such as [Commonwealth v. Bomar, 826
A.2d 831 (Pa. 2003)] and the matter sub judice, where the
defendant seeks to litigate multiple or prolix claims of
counsel ineffectiveness, including non-record-based claims,
on post-verdict motions and direct appeal, we repose
discretion in the trial courts to entertain such claims, but
only if (1) there is good cause shown, and (2) the unitary
review so indulged is preceded by the defendant’s knowing
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and express waiver of his entitlement to seek PCRA review
from his conviction and sentence, including an express
recognition that the waiver subjects further collateral
review to the time and serial petition restrictions of the
PCRA.
Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013) (citation and
footnotes omitted).
Instantly, we agree with the trial court that Appellant failed to raise his
ineffectiveness claims for consideration by the trial court and, moreover, did
not knowingly waive his right to seek PCRA review. See id. Accordingly, we
decline to address Appellant’s ineffectiveness claims on direct appeal, and he
is free to raise them again in a PCRA petition. See Grant, 813 A.2d at 739.
Accordingly, we reverse Appellant’s conviction for criminal mischief, vacate
the sentence for criminal mischief, affirm his remaining convictions, and
affirm the judgment of sentence in part.
Conviction for criminal mischief is reversed and judgment of sentence
thereto is vacated. In all other respects, the judgment of sentence is
affirmed. Jurisdiction relinquished.
Judge Allen joins the memorandum.
President Judge Gantman concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2015
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COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PA CP-51-CR-0014583-2011
v. TRIAL DIVISION
JASON PARKER SUPERIOR COURT DOCKET NO.:
286 EDA 2013 CP-51-CR-0014583-2011Cornm. v. Parker, Jason
Op1n1on
OPINION OF THE TRIAL COURT
11111 II 11111111111 Ill\ II\
7078651371
This is the defendant, Jason Parker's, appeal of this Court's findings of September 12,
2012. The defendant filed a timely Notice of Appeal on January 9, 2013, following the denial of
a post-trial motion for reconsideration.
On September 12, 2012, at a non-jury trial, this Court adjudged the defendant guilty of
Fleeing or Attempting to Elude Officer (75 Pa.C.S §3733(a)); Criminal Mischief -Tampering
with Property (18 Pa.C.S §3304(a)); Simple Assault (18 Pa.C.S §2701 (a); and, Recklessly
Endangering Another Person (18 Pa.C.S. §2705). He was sentenced to nine (9) to eighteen (18)
months incarceration to be followed by two (2) years of probation on the fleeing or attempting to
elude charge, with no further penalty on all of the other charges. Further, the defendant was
adjudged not guilty of Resisting Arrest (18 Pa.C.S. §5104).
1,
In his Revised l 925(b) Statement of Matters Complained of on Appeal the defendant
raises the following issues:
I
Prior to the entry of appearance by current counsel, on February 20, 2013, the defendant, in a prose capacity, filed
a rambling, handwritten, 11 point (plus subparts). 15 page l 925(b) Statement of Matters Complained of on Appeal.
After the appearance of current counsel, this Court granted counsel permission to file a revised l 925(b) statement,
after her review of the Notes of Testimony, in order to refine the appellate issues.
Circulated 03/31/2015 04:09 PM
1. The verdict was against the weight of the evidence and insufficient
as a matter of law where the police officer testimony and the testimony of
Nafakha Muwwakkil was not credible and the Defendant credibly testified
that he went into diabetic shock and passed out behind the wheel.
Furthermore, the Commonwealth did not prove the element of criminal
intent as required by each of the statutes.
2. The verdict is insufficient as a matter of law specifically with respect
to criminal mischief where the Defendant's acts do not meet the definition
of the crime because he did not utilize any hazardous materials or tamper
with any tangible objects as required by the crime.
3. The verdict was against the weight of the evidence where police did
not have probable cause to stop the Defendant and pursue him where the
police allegedly attempted to pull him over for talking on a cellular
telephone and it was legal for the Defendant to do so. The police also did
not have probable cause to stop the Defendant for failing to have insurance
where the uncontroverted evidence was that this vehicle was insured.
4. The trial court erred in denying the Defendant's motion for a medical
expert.
5. Trial counsel was ineffective for:
a. failing to present a medical expert who could have testified to
the effects of diabetes,
b. failing to present the Defendant's wife who was an
eyewitness,
c. misrepresenting that it would be the defendant's best interest
to select a bench trial.
On September 12, 20 I 2, the Commonwealth presented the testimony of two (2)
individuals, an eyewitness/victim, Ms. Nafakha Muwwakkil, and Philadelphia Police Officer
Brad Momme. The defendant testified on his own behalf and also presented the testimony of his
automobile insurance agent, Steven Torpey, Jr. Defendant's wife testified during the sentencing
stage of the proceedings, but was present during the trial. This Court also accepted into evidence,
over the Commonwealth's objection, certain hospital/medical paperwork relative to treatment
received subsequent to defendant's arrest on December 12, 2011 (Exhibit D-1).
2
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Prior to the start of trial, this Court performed an on the record colloquy of the defendant
to determine if his election to waive his right to a jury trial was voluntary, knowing and
intelligent. Based upon the defendant's responses, this Court concluded that he did, in fact,
voluntarily, knowingly and intelligently waived said right. See N.T., 09- 12-12, P. 5, L. 10 to P.
12, L.4. The defendant waived formal arraigmnent and entered pleas of not guilty to all charges.
The Commonwealth first called Nafakha Muwwakkil who testified that on December
12, 2011, at about 8:23 p.m., she was operating her friend's motor vehicle in the area of 7100
Andrews A venue, Philadelphia, Pa. She was at the stop sign of Andrews A venue and Uber Street
N.T., 09-12-12, P. 13, L. 7-15.
While she was at the stop sign, a car coming from the opposite direction on Uber St.,
traveling in the wrong direction on Uber St., turned and hit the vehicle she was operating. This
vehicle then backed up and skimmed her car. It then proceeded in the opposite direction past her,
again hitting her on the driver's side. N.T., 09-12-12, P. 14, L. l-6. As a result of being struck,
the vehicle she was driving sustained damages to the passenger side front end, passenger door,
driver's side and the driver's door. N.T., 09-12-12, P. 15, L. 23 to P. 16, L. 6. Ms. Muwwakkil
waited in the vehicle until an ambulance arrived and took her to the hospital. N.T., 09-12-12, P.
16, L. 12-19. She suffered injuries to her neck, back and knee and missed a week from work
N.T., 09-12-12, P. 16, L. 22-25. She received several months of medical care. N.T., 09-12-12, P.
18, L. 8-9.
After the vehicle struck the car she was operating, it sped off, but because it was dark, she
could not see the operator. N.T., 09-12-12, P. 19, L. 14-21. This concluded her direct testimony.
The defense did not cross-examine her.
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The Commonwealth then called Police Officer Brad Momme, Badge No. 7631, of the
14111 Police District. Officer Momme positively identified the defendant in Court as the person
with whom he had contact on the date, time and location giving rise to these charges .. N. T., 09-
12-12, P. 21, L. 5-8. He testified that he attempted to stop the defendant who was operating a cell
phone while driving a vehicle. N.T., 09-12-12, P. 21, L. 17-21. An NCIC/PCIC check revealed
that:
N.T., 09-12-12, P. 22:
6 the registration was suspended due to
7 insurance cancellation. We attempted to pull
8 the vehicle over on the 2000 block of 72nd
9 Avenue with lights and sirens activated,
IO that's when the vehicle began to speed off at
11 a high rate of speed. The vehicle turned
12 westbound on Andrews and began from there. It
13 went on for approximately six, seven blocks.
14 The vehicle went northbound on the 1900 block
15 of Dallas, which was the wrong way. It was
16 one way southbound, which he turned back onto
17 Andrews A venue when he struck a blue Toyota
18 Solera with a PA tag of GJX7621, filled out an
19 accident report, 201114090920, that's the
20 accident report taken for that incident. The
21 defendant struck the driver's side fender and
22 door. That vehicle was being operated by a
23 female. He struck that door, proceeded to
24 kind of push the vehicle -- try to over
25 compensate into the park vehicle, bounce off
N.T., 09-12-12, P. 23:
1 that vehicle, and continued to drive at a very
2 high speed away from that incident, we were
3 still pursuing the vehicle as the vehicle took
4 off.
5 We continued to chase the vehicle
6 approximately two to three blocks, where it
7 came to stop, a male fell out of the vehicle,
8 left the vehicle running on the 7000 block of
9 71 st. He bailed out on foot, left the vehicle
4
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10 running, heavy front-end damage. I gave
11 chase, never losing sight of the male. I
12 caught the male on the 1900 block of Dallas,
13 the male was taken into custody. The vehicle
14 was Live Stopped. The defendant did take --
15 I'm sorry, did receive three different
16 citations. One for the registration being
17 suspended, also reckless driving, and license
18 being suspended.
Officer Momme testified that the speed limit in the area is 25 mph and after the defendant
sped off, he estimated that the defendant was operating his vehicle at least twice that speed
during the 1 to 3 minute police chase. This officer never lost sight of the defendant's vehicle.
N.T., 09-12-12, P. 24, L. 22 to P. 25, L. 20. The chase took place over more than a six (6) block
area and the defendant disregarded numerous stop signs. N.T., 09-12-12, P. 26, L. 9-19. During
the entire chase, this Officer observed the defendant not using turn signals, swerving, hitting two
(2) vehicles and fleeing the scene. N.T., 09-12-12, P. 27, L. 5-8.
The defendant was issued three (3) citations, one each for registration suspended for
insurance cancelation; reckless driving; and, license suspended due to being a scofflaw with 56
outstanding tickets. The defendant's vehicle was "Live Stopped>' due to the insurance
cancellation. N.T., 09-12-12, P. 28, L. 1-16.
On cross-examination, Officer Momme admitted that the reason for attempting to pull the
defendant over was for use of a cellphone while driving, which he stated was a code violation,
and also for the insurance cancelation per the NCIC/PCIC check. N.T., 09-12-12, P. 29, L. 3 to
P. 30, L. 7. At the end of the chase, the defendant stopped his vehicle and then attempted to flee
on foot. N.T., 09-12-12, P. 31, L. 1-3. He was arrested and then transported from the scene by
other officers. N.T., 09-12-12, P. 31, L. 22-23.
5
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With the admission of Commonwealth Exhibits C-1, C-2 and C-3 into evidence without
objection, the Commonwealth rested.
This Court found both the testimony of Ms. Muwwakkil as well as Officer Momme
credible in regard to the events of this police chase involving the defendant. Cross-examination
failed to reveal any discrepancies, conflicts or other inconsistencies in their testimony and no
bias or prejudice of either witness was exposed. This Court accepted their testimony as truthful,
credible and reliable.
It is well established that the trier of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth, v. Smith, 2013 Pa. Super. 100 (Pa. Super. Ct. May l, 2013). This Court chose
to believe these witnesses' testimony. Further, the defendant claims that since their testimony is
not credible, the evidence is not sufficient to support the verdict. This claim is misplaced, as
credibility applies to the weight of the evidence, not its sufficiency. See Commonwealth I'.
Dougherty, 860 A.2d 31, 36 (Pa. 2004) (sufficiency claim attacking credibility of the evidence is
not sufficiency claim at all; it is a weight claim and therefore fails). Regardless, these witnesses'
testimony was sufficient to prove the elements of the crimes for which this defendant was found
guilty, as detailed below.
The defense then presented its case and called Steven Torpey, Jr, an insurance agent for
Allstate Insurance Company, as its first witness. Mr. Torpey testified that the vehicle being
operated by the defendant (and owned by his wife, Tamara Parker) was insured on December 12,
2011, with coverage having been in place with his company since July 14, 2011 and without any
lapse in coverage during that time. N.T., 09-12-12, P. 34, L. 2~12.
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On cross-examination, Mr. Torpey testified that Mrs. Parker had been a customer since
June or July, 2011, even though the letter marked as C-4 addressed the six month period of
coverage from December 14, 2011 to June 14, 2011. N.T., 09-12-12, P. 35, L. 19-20.; N.T., 09-
12-12, P. 36, L. 17-21. This Court accepted Mr. Torpey's testimony as credible, but not relevant
to any of the charges or on the issue of probable cause for the reasons set forth below.
In his 1925(b) Statement, the defendant claims that defense counsel was ineffective for
failing to call his wife, Tamara Parker, who was allegedly an eyewitness to the events occurring
on the evening of December 12, 20 I 1. This contention, however, is contradicted by the record, as
defense counsel initially called Mrs. Parker as a witness in regard to only the insurance issue,
then decided she would not testify due to her testimony being cumulative to Mr. Torpey's
testimony, stating:
16 MS. MURBARGER: Defense calls at
17 this point Tamara Parker.
18 MS. GALIETT A: It's my understanding
19 the testimony from Tamara Parker is cumulative
20 of Mr. Torpey.
21 MS. MURBARGER: Given Mr. Torpey's
22 testimony, I will not need Tamara Parker. I
23 will not call Tamara Parker. I will call my
24 client Jason Parker.
N.T., 09-12-12, P. 40.
During the sentencing phase, Mrs. Parker did, however, address the Cami on her
husband's behalf, stating:
N.T., 09-12-12, P. 59:
23 ... It was just unfortunate what
24 happened on that day. I had finals on that
25 particular day, and I couldn't do what I was
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N.T., 09-12-12, P. 60:
l supposed to do and prepare/or him being out
2 and going out and doing whatever tutppened tltat
3 day....
Emphasis added.
Clearly, by her own testimony as to "whatever happened that day," Mrs. Parker was not
an eyewitness to the events of December 12, 2011 and, therefore, this Court concludes that her
not being called as a witness for the defense in its case in chief is a meritless issue on appeal as it
relates to an ineffective assistance claim, since Mrs. Parker would not have been in a position to
provide any testimony to this Court on the defendant's behalf. Had she been an eyewitness with
information helpful to the defense, she would not have been present to just provide testimony
related to the insurance issue, but eyewitness testimony as well.
The defendant also testified on his own behalf. His testimony was brief. On direct
examination, he testified as follows:
N.T., 09-12-12, P. 46:
5 Q. Mr. Parker, on the day you were arrested, did
6 you take your normal medications?
7 A. No, I did not.
8 Q. What kind of medications do you normally take?
9 A. I take insulin and I take oral medications for
l O diabetes.
11 Q. Why didn't you take your medication that day?
12 A. Because I received a call at 7:00 a.m. to go
13 take care of my mother, she just had cancer
14 surgery, so I was supposed to evaluate her and make
15 sure she was stable. So I just rushed over to her
16 house to watch over her.
17 Q. And did you ever take your medication that
18 day?
19 A. No, I didn't have a chance too.
20 Q. Now, what happened when you went out that
21 evening after 8:00 o'clock?
22 A. I remember my wife went to school and we came
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23 home -- she picked me up from my morn's house, and
24 we came home, and we were watching jeopardy or
25 something, and I started feeling cold sweats and
N.T., 09-12-12, P. 47:
1 light-headed and I knew I had to eat and take my
2 medication, so we called Little Caesar Pizza around
3 the corner, we ordered pizza and chicken and paid
4 for it, and that's the last thing I remember.
5 Q. Did you -- so do you have any memory of
6 driving your car?
7 A. None.
8 Q. Do you have any memory of a crash or arrest?
9 A. No, I just remember waking up in the hospital
10 handcuffed to the bed, and they were given me
11 orange juice and insulin, and Iwas asking
12 everybody what happened. The police just kept
13 telling me to shut the F up, shut the F up.
The defense then marked Exhibit D-1, a packet of hospital records, which was admitted
into evidence over the Commonwealth's objection that it was not a complete record. Exhibit D-1
consisted of several pages of records from Albert Einstein Medical Center (AEMC) Emergency
Department date December 12, 2011, and a March 12, 2012 handwritten note of Azad Khan,
M.D., which statds:
Mr. Parker has uncontrol [sic] Diabetes Mellitus, he is on insulin and oral
hypoglycemic medication. He is also treated for Anxiety, Bipolar disorder and
Paranoid Schizophrenia. Isl Azad Khan, M.D.
The AEMC notes indicate that Mr. Parker was seen in the Emergency Department from
9:25 p.m. to approximately l 0:30 p.m. During that time, his blood sugar was determined to be
241.
On cross-examination, Mr. Parker was asked the following:
N.T., 09-12-12, P. 49:
4 Q. Mr. Parker, do you remember having contact
5 with the officer that testified here today?
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6 A. I just remember seeing him at the hospital. I
7 asked him what happened? Why I am handcuffed? He
8 said, shut the F up.
9 Q. Mr. Parker, do you remember seeing him out on
10 the street?
11 A. No, I don't.
12 Q. Do you remember at some point hitting another
13 vehicle?
14 A. No, I don't.
In order to clarify the record in regard to the defendant's claims that his actions were the
result of his diabetic condition, this Court questioned the defendant as follows:
N.T., 09-12-12, P. 49:
19 THE COURT: Are you a type one or
20 type two diabetic?
21 THE DEFENDANT: I'm a type two, Your
22 Honor.
23 THE COURT: Insulin dependent?
24 THE DEFENDANT: Insulin and I take
25 oral medications?
N.T., 09-12-12, P. 50:
1 THE COURT: What do you take?
2 THE DEFENDANT: Glucotrol and
3 Biguanides and Metformin, something like that.
4 THE COURT: And what's the reason
5 you didn't take your insulin that day?
6 THE WITNESS: My brother called me
7 and said --
8 THE COURT: I know about mother,
9 later in the day, why didn't you take it?
10 THE DEFENDANT: After we left my
11 mother's house, we went to my doctor to get my
12 medication filled, and we went to the ·
13 pharmacy, and we were waiting and waiting.
14 They said they were backed up, and we had to
15 go pick up our daughter like 6:00 o'clock,
16 6:30, so we had to leave and come back to get
17 the medication from the pharmacy, so that's
18 why I was not able to take it, because the
19 pharmacy was backed up, and we had to go pick
20 up our daughter.
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21 THE COURT: You have no insulin at
22 home on hand?
23 THE DEFENDANT: No, I didn't, Your
24 Honor.
This Court did not believe the defendant's testimony, as it lacked a scintilla of credibility.
The defendant had specific recall of the numerous events leading up to the time the police
attempted to stop his vehicle, and then conveniently has absolutely zero recollection of the police
chase, despite the fact that the testimony indicates that he was in full control of the vehicle and
took drastic, dangerous actions in an attempt to flee the police. He remembers ordering food
from Little Caesar's and next waking up in the hospital, but nothing at all in between, A person
who has "passed out" would not be able to lead police on a chase of this magnitude. This Court
finds this testimony lacking honesty and truthfulness.
To further support this Court's finding of lack of credibility, it is noted that the defendant
2
has a crimen falsi conviction for theft - receiving stolen property. "[T]he credibility of a witness
may be impeached by evidence that he has prior crimen falsi convictions, meaning those that
bear on a witness's honesty and truthfulness." Commonwealth v. Causey, 833 A.2d 165, 169
(Pa. Super. 2003), appeal denied, 848 A.2d 927 (Pa. 2004) (citing Pa.R.E. 609).
The defendant now raises the issue that the police did not have probable cause to stop
him for talking on a cellphone while driving and for the failure to have insurance. This issue was
not raised at trial, however, this Court will address this argument, as this issue fails on two (2)
levels.
First, Officer Momme testified that the defendant had been observed using a cellphone
while driving, which he had termed as a "code violation." This testimony was uncontroverted. It
is believed that the defendant will raise the issue of lack of probable cause on this issue due to
2 The Quarter Sessions file was marked as Exhibit C-5, relating to Co111111onwealth v. Parker, CP-5 l-CR-06084 l l-
I 996, which does indicate a conviction for Theft RSP. Exhibit C-5 was admitted without objection.
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the enactment of changes to the Vehicle Code at 75 Pa. C.S. § 3316(e), which expressly
preempted Philadelphia Code § 12-1132 (Prohibiting Use of Mobile Telephones by Persons
Operating Vehicles), which would negate a reason, i.e., probable cause, to have stopped the
defendant. Defendant's anticipated reliance upon this change in the law is misplaced. Although
this change was signed into law on November 9, 2011, approximately one month before the
defendant's arrest, its effective date was March 8, 2012, nearly 60 days after. Until the law took
effect, the Philadelphia Code section cited above was still in effect. Therefore, Officer Momme
had probable cause to pull the defendant over for this observed code violation.
Further, a NCIC/PCIC check performed by Officer Momme revealed insurance
cancellation on the vehicle. This information also provided a good faith, sufficient basis for
Officer Momme to pull the defendant's vehicle over for further investigation. Although it
appears that the NCIC information may have been inaccurate, the defendant still had the
obligation to pull over. The charges in this case stemmed from the actions taken by the
defendant after the police attempted to initiate a vehicle stop after activation of the lights and
sirens on the police vehicle. The defendant cannot be excused for such actions.
Further, it is well established that NCIC checks can form the basis for probable cause.
When the police possess articulable, reasonable grounds to suspect a violation of the Motor
Vehicle Code, probable cause exists. Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983,
985 (2001 ). Since NCIC reports can form the basis of probable cause, Officer Momme had
sufficient probable cause to stop Defendant when he learned through the NCIC report that the
vehicle being driven by defendant lacked proper financial responsibility. Commonwealth v.
Riley, 284 Pa.Super. 280, 425 A.2d 813, 816 (1981 ).
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Thus, this officer had specific articulable facts that led him to believe that violations of
both the Philadelphia Code and the Motor Vehicle Code were occurring. Given that defendant
was being stopped with sufficient probable cause supported by reasonable and articulable
grounds, the attempt to stop him was legal. Commonwealtlt ,,. Bolton, 2003 Pa. Super. 314, 831
A.2d 734, 736-37 (Pa. Super. Ct. 2003).
Had the NCIC/PCIC information been inaccurate, the resulting citations could have been
disputed in the appropriate court with jurisdiction over such matters and Mr. Torpey could have
appeared to testify as he did before this Court regarding the insurance issue. For the defendant
not to comply by pulling over and instead choosing to flee, he set into motion the criminal acts
which resulted in the charges which the defendant now claims the Commonwealth failed to
prove beyond a reasonable doubt.
In regard to the sufficiency of the evidence presented at trial, the defendant claims that
the Commonwealth failed to prove the element of criminal intent as required by each of the
statutes upon which he was found guilty. This claim is without merit. With this Court finding
the defendant's testimony not credible as it relates to him "passing out behind the wheel" (See
Defendant's 1925(b ), Paragraph ( 1 )), it was required to look to the direct and circumstantial
evidence in order to determine the defendant's intent. Commonwealth v. Alexander, 477 Pa.
190, 383 A.2d 887, 889 (1978) ("Criminal intent may be proven by direct or circumstantial
evidence.").
This Court looked to the acts of the defendant as stated by the two (2) eyewitnesses in
order to glean his intention. "Where the intention of the actor is obvious from the act itself, the
finder of fact is justified in assigning the intention that is suggested by the conduct."
Commonwealth v. Meredith, 490 Pa. 303, 416 A.2d 481, 485 ( 1980).
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The testimony of the witnesses clearly shows the defendant did not pass out, but instead
took affirmative and direct actions behind the wheel once the police initiated the attempt to pull
him over for traffic violations. The defendant drove for numerous city blocks over a period of
several minutes, striking cars, going from forward to reverse and back to forward, maintaining
control over the vehicle, accelerating, making numerous turns, then bringing his vehicle to a
stop, exiting it and then attempting to flee on foot. A person who has "passed out behind the
wheel" would not be able to perform any of those acts. The witnessed acts of the defendant belie
his claims and, therefore, this Court did not find his testimony credible in the least that he
remembers nothing about the incident. His claim of passing out is nothing more than an
unaccepted excuse without legal or logical basis. The facts here justify the conclusion that the
defendant's intent was supported by his witnessed and reckless conduct.
In regard to the findings of guilt on the following specific charges, under a totality of the
testimony standard, the Commonwealth met its burdens in regard to the following:
A person is guilty of 75 Pa.C.S.A. § 3733 - Fleeing or attempting to elude police officer
when a driver of a motor vehicle willfully fails or refuses to bring his vehicle to a stop, or who
otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible
signal to bring the vehicle to a stop.
Defenses to this charge are statutorily set forth as (1) the pursuing police officer's vehicle
was not clearly identifiable by its markings or (2) the defendant can show by a preponderance of
the evidence that the failure to stop immediately for a police officer's vehicle was based upon a
good faith concern for personal safety.
Officer Monune testified that he was in a marked patrol car (N.T., 09-12-2012, P. 23, L.
20-23) when he activated his lights and sirens. It was at that point, that the defendant sped off
14
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(N.T., 09-12-2012, P. 22, L 20-23) and set his criminal acts into motion. This shows the
defendant's mental wherewithal as to his surroundings, as he knowingly tried to escape. Further,
the defendant failed to provide any testimony as to the applicability of the second statutory
defense, therefore, the evidence was sufficient to support the finding of guilt on this charge.
In regard to the determination of guilt on the criminal mischief charges, the defendant
claims that since he did not utilize any hazardous materials or tamper with any tangible object,
he could not have been guilty of this charge. The evidence presented at trial was sufficient to
prove that the defendant intentionally damaged the personal property of another, where the
credible trial testimony of Ms. Muwwakkil and Officer Momme established that defendant hit
the vehicle occupied by Ms. Muwwakkil, backed up and sped forward, again striking it and
causing damage to a vehicle that he did not own. This testimony was sufficient to support a
finding of guilt on the criminal mischief charge, as his actions clearly fell within the scope and
intent of the statute.
The testimony was also sufficient to support the finding of guilt on the simple assault
charge, 18 Pa.C.S.A. § 2701, which is defined as - A person is guilty of assault ifhe attempts to
cause or intentionally, knowingly or recklessly causes bodily injury to another. This Court has
already determined that the defendant knowingly and intentionally attempted to elude the police.
The resulting charges all stemmed from that initial action. Unfortunately an innocent person,
Ms. Muwwakkil, was injured as she testified to on direct examination. Since Ms. Muwwakkil
sustained bodily injured as a result of the defendant's criminal actions, the evidence was
sufficient to support a finding of guilt on this charge.
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The evidence was also sufficient to support a finding of guilt for reckless endangerment.
This crime is defined as when a person recklessly engages in conduct which places or may place
another person in danger of death or serious bodily injury. See 18 P.S. §2705.
To sustain a conviction under Section 2705, the Commonwealth must prove that the
defendant had an actual present ability to inflict harm and not merely the apparent ability to do
so. Danger, not merely the apprehension of danger, must be created. The mens rea for recklessly
endangering another person is "a conscious disregard of a known risk of death or great bodily
harm to another person." Commonwealth l', Klein, 795 A.2d 424, 427-428 (Pa. Super. 2002),
(quoting Commonwealth v. Hopkins, 747 A.2d 910, 915-916 (Pa. Super.2000) (citations and
quotation omitted)).
A person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature and degree that, considering the nature
and intent of the actor's conduct and the circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a reasonable person would observe in the
actor's situation. Commonwealth v. Cordoba, 902 A.2d 1280, 1289-1290 (Pa. Super.2006)
(citing 18 Pa.C.S.A. § 302(b)(3)).
As stated above, the Commonwealth presented sufficient evidence to establish a prima
facie case against the defendant on all charges for which he was found guilty, as the offered
evidence showed that the defendant fled from police at a high rate of speed (at least double the
speed limit) on numerous city streets for several minutes, drove down streets in the wrong
direction, disregarded stop signs, and struck an occupied vehicle twice, causing the occupant
injury. These reckless acts were not due to complications from a medical condition, but were
16
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due to the defendant knowingly driving on a suspended license and aware his scofflaw status
with over 50 outstanding tickets, which would result in his arrest. This Court concluded that the
circumstances surrounding defendant's actions presented an actual, foreseeable risk of danger.
See Commonwealth v. Reynolds, 835 A.2d 720, 729 (Pa. Super. 2003) .
.--···
As to defendant's claim that this Court erred in denying his motion requesting funds to
"hire a diabetic doctor," it should be noted that the defendant filed numerous motions prose, but
under the guise of his appointed counsel. This claim, like the others raised, is without merit.
On May 29, 2012, defendant filed a motion claiming that the incident leading to his arrest
was "medically induced" and had been "viewed by two witnesses, defendant's wife and his
brother, and his primary care physician ... " As previously indicated, defendant's wife was not an
eyewitness to this incident and this Court is unaware of defendant's brother's knowledge as he
did not appear at trial to testify on defendant's behalf.
The defendant also claimed that his "primary care physician had seen [him] on the date of
his arrest and had ordered him medications" and to prove the defense that he was "sick that day,"
the "defendant needs the testimony of his or another diabetic expert doctor."
The defendant contends that without an expert diabetic physician, he was prevented from
presenting evidence concerning his inability to form a specific intent to commit the above crimes
due to complications of his medical condition. This appellate issue is without merit.
The decision to appoint an expert witness is within the sound discretion of the trial court
and will not be disturbed except for a clear abuse of that discretion. Commonwealth v. Gelonno,
327 Pa.Super. 219, 475 A.2d 765 (1984). There is no obligation on the part of the
Commonwealth to pay for the services of an expert, except in capital cases. Commonwealth v.
Williams, 522 Pa. 287, 294, 561 A.2d 714, 718 (1989) ( citing Com111011wea/t/1 v. Box, 481 Pa.
17
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62, 391 A.2d 1316 (1978)); Cotnmonweattlt v. Roe/tester, 305 Pa.Super 364,. 451 A.2d 690
(1982). Furthermore, an indigent defendant does not have the right to choose his own expert or
receive funds to hire his own expert. Commonwealth v. Wholaver, 605 Pa. 325, 346, 989 A.2d
883, 895 (2010) (relying upon Ake ii. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53
(1985)).
The denial of the defendant's motion did not violate his due process or equal protection
rights as alleged. There is no constitutional mandate that an expert is to be appointed to assist the
defendant in the preparation of a defense at the public expense. Gelormo, 327 Pa. Super. at 229,
475 A.2d at 770 (citations omitted). Therefore, this issue is without merit.
Lastly, the defendant raises an ineffective assistance claim. The first two (2) issues
raised3 are without legal basis. To establish a claim of ineffective assistance of counsel, a
defendant must show that: (1) the claim is of arguable merit; (2) counsel had no reasonable
strategic basis for his or her action or inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome of the proceedings would have been
different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (Pa. 1999). A defendant's
counsel is presumed to be effective, and a defendant must overcome that presumption and prove
all three of the factors referenced above. Commonwealth v. Singley, 582 Pa. 5, 19, 868 A.2d
403, 411 (2005).
The first allegation of ineffective assistance of counsel related to the failure of trial
counsel to retain an expert witness fails for the reasons stated above. The defendant was indigent
and represented by the public defender. The defendant did not have a right to have a court
3
5. Trial counsel was ineffective for:
a. failing to present a medical expert who could have testified to the effects of diabetes,
b. failing to present the Defendant's wife who was an eyewitness
18
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appointed expert. A motion to that effect was made and denied. Although the defendant filed the
motion under his signature, but allegedly through Defender's Association counsel, Steven
Fleury, the attempt to have the Commonwealth pay for an expert was made. Defendant cannot
claim his appointed counsel was ineffective for not presenting testimony of an expert witness,
when said request for funds to retain this expert was not required nor permitted by this Court.
Counsel is not required to pursue motions which have no arguable merit. Co111111011wea/t!, v.
Goosby, 461 Pa. 229, 336 A.2d 260 (1975). Defendant's logic in raising this issue fails, as this
position lacks arguable merit, thereby failing to fulfill the first prong of an ineffectiveness of
counsel argument.
As for the ineffectiveness of trial counsel in not presenting the defendant's wife as
witness, this argument also fails. Mrs. Parker was present in the courtroom at the trial of this
matter, but v. ,as not an eyewitness to these events for the reasons stated above. Her testimony
would have been limited to the insurance issue only. Based upon the foregoing reasoning and
determination by this Court, this claimed issue fails to satisfy any of the three (3) prongs of an
ineffectiveness of counsel argument.
In regard to the defendant's third claim that trial counsel was ineffective for
misrepresentation related to waiver of his right to a jury trial, this Court, as stated above,
performed an on the record colloquy of the defendant. The defendant also signed a written jury
waiver form and his ability to understand the contents thereof was placed on the record, as
follows:
N.T., 09-12-2012, P. 8:
17 THE COURT: Mr. Parker, I'm holding
18 up a waiver of jury trial form, do you see
19 this form I'm holding up here?
20 THE DEFENDANT: Yes, Your Honor.
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21 THE COURT: Now, did you go over
22 this entire form with your attorney?
23 THE DEFENDANT: Yes, very
24 thoroughly, Your Honor.
25 THE COURT: And you do understand
N.T., 09-12-2012, P. 9:
1 what this form says?
2 THE DEFENDANT: Yes, Your Honor.
3 THE COURT: Now, at the bottom of
4 this page that I'm pointing to, right here,
5 there's a signature, do you see that? I'm
6 going to have it handed back to you?
7 THE DEFENDANT; I can see it. I
8 seen it, yes.
9 THE COURT: Now, is that your
IO signature at the bottom of the page there on
11 this form?
12 THE DEFENDANT: Yes, Your Honor.
13 THE COURT: And did you sign this
14 form of your own free will?
15 THE DEFENDANT: Yes, Your Honor.
N.T., 09-12-2012, P. IO:
12 THE COURT: Now, according to the
13 form that you signed, that you said you
14 discussed thoroughly with your attorney and
15 that you've indicated that you understood, you
16 have agreed to give up your right to a jury
17 trial and allow me to listen to all the
18 evidence and decide whether you are guilty or
19 not guilty of the charges against you; do you
20 understand that this is what have you signed?
21 THE DEFENDANT: Yes,Ido, Your
22 Honor.
23 THE COURT: NO\V, do you agree to
24 have this case heard by me today sitting
25 without a jury?
N.T., 09-12-2012, P. 1 I:
1 THE DEFENDANT: Yes, Your Honor.
2 THE COURT: Have any promises been
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3 made to you to give up your right to a jury
4 trial?
5 THE DEFENDANT: No, Your Honor.
6 THE COURT: Have any threats been
7 made to you to give up your rights to a jury
8 trial?
9 THE DEFENDANT: No, Your Honor.
The defendant did not raise any issue at the time, despite having been given the
opportunity to do so. Further his 1925(b) is silent as the nature of this alleged misrepresentation.
The right to trial by jury is recognized by Rule 620 of this Court's Rules of Criminal
Procedure, which provides:
In all cases, the defendant and the attorney for the Commonwealth may
waive a jury trial with approval by a judge of the court in which the case is
pending, and elect to have the judge try the case without a jury. The judge shall
ascertain from the defendant whether this is a knowing and intelligent waiver,
and such colloquy shall appear on the record. The waiver shall be in writing,
made a part of the record, and signed by the defendant, the attorney for the
Commonwealth, the judge, and the defendant's attorney as a witness.
Pa.R.Crim.P. 620.
When a presumptively valid jury waiver is collaterally attacked under the guise of
ineffectiveness of counsel, it must be analyzed like any other ineffectiveness claim.
Commonwealth. v. Mallory, 941 A.2d 686, 596 Pa. 172, Sup.2008, cert. denied 129 S. Ct. 257,
555 U.S. 884, 172 L. Ed. 2d 146, on remand2009 WL 6978587.
Since this Court was made aware of this issue for the first time on appeal, there is no
record for the basis of this claim for which this Court can reference. Due to the defendant's
failure to file a PCRA petition with this Court, there has been no ability for collateral review.
This Court relies on Commonwealth v. Barnett, 25 A.3d 371, 377 (Pa. Super. 2011), where an
en bane panel held:
This Court [the Superior Court] cannot engage in review of ineffective
assistance of counsel claims on direct appeal absent an "express, knowing and
voluntary waiver of PCRA review." With the proviso that a defendant may
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waive further PCRA review in the trial court, absent further instruction from
our Supreme Court, this Court ... will no longer consider ineffective assistance
of counsel claims on direct appeal. (citing Commonwealth v. Wright, 599 Pa.
270, 961 A.2d 119 (2008) and Commonwealth v. Liston, 602 Pa. 10, 28, 977
A.2d 1089, 1100 (2009).
See also Commonwealth v. Grant, 8 I 3 A.2d 726 (Pa. 2002) ( establishing a general rule
that claims of ineffective assistance of counsel should ordinarily be reserved for collateral
review).
The defendant never raised his ineffective assistance of counsel claims at the trial court
level and no record has been developed on this issue due to this failure. Consequently, according
to Barnett, supra, and Grant, supra, defendant is presently foreclosed from raising his
ineffectiveness of counsel issues on direct appeal because these issues were ripe for a PCRA
petition to this Court. Therefore, this issue should be dismissed in accordance with the holding in
Barnett (dismissing Barnett's claims of ineffective assistance of counsel without prejudice to
raise them in a subsequent PCRA petition) limiting the PCRA issue solely to the waiver of his
right to a jury trial based upon the alleged misrepresentations by his court appointed counsel.
As to the challenges made by the defendant on his convictions, it is requested that the
verdict of this Court be affirmed on appeal or in the alternative, remanded for the limited issue of
determination of the issue raised in regard to defendant's waiver of his right to a jury trial
through a proper PCRA petition.
BY THE COURT:
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Circulated 03/31/2015 04:09 PM
COMMONWEALTH V. JASON PARKER
CP-51-CR-0014583 -2011
286 EDA 2013
PROOF OF SERVICE
I hereby certify that I am this day serving the forgoing Opinion upon the person(s),
And in the manner indicated below, which satisfies the requirements of Pa. R. Crim. P. 114:
COUNSEL:
Emily B. Cherniack, Esquire
Attorney for Jason Parker
1500 Walnut Street, Suite 1100
Philadelphia, PA 19102
Hugh J. Burns, Esq.
Chief, Appeals Unit
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Superior Court Prothonotary
530 Walnut Street, Suite 315
Philadelphia, PA 19106
TYPE OF SERVICE: FIRST CLASS MAIL
Dated: October~
-~ o+!"2013