DocketNumber： 736
Judges： Hester, Johnson, Popovich
Filed Date： 11/18/1983
Status： Precedential
Modified Date： 10/19/2024
concurring and dissenting:
While I concur with the majority opinion that the lower court correctly resolved the four allegations of ineffective assistance of counsel alleged by appellant against his trial counsel for failing to file certain motions concerning: 1) a delay in the preliminary arraignment; 2) a delay in the preliminary hearing; 3) holding a preliminary hearing without assistance of counsel for appellant; and 4) double jeopardy. I believe these issues merit discussion due to the complex factual nature of this case and errors contained in the lower court’s reasoning regarding their resolution. Thus, I will first discuss the procedural history of this case to better elucidate the issues that are now before us.
Appellant, through his counsel, filed an appeal with this Court alleging error with the first and the third ■ trials. Appellant also filed a pro se brief claiming ineffective assistance of counsel in all three trials. In remanding the convictions stemming from the first two trials to the lower court, we ruled:
“Inasmuch as we are unable to determine from the record before us whether or not defendant was represented by ineffective counsel either pretrial, trial, or post trial in either of the first two trials (one on September 21, 1977 and the other on November 15, 1977), we are remanding the cases tried on those two dates. The court below is directed to hold an evidentiary hearing to determine the question of effectiveness of counsel. If it is determined that counsel for defendant was ineffective in one or both of said trials, then the defendant shall be granted a new trial in one or both series of charges. If on the other hand it is determined that counsel was not ineffective in either of said trials, the judgment of said sentences following those trials will be affirmed.
We affirm the convictions in the cases tried on January 23, 1978, however, this group of cases is remanded to the*283 court below for resentencing in the event that a new trial should be granted in either of the other series. After the court below has made its decisions, either party may appeal.”
Commonwealth v. Corbin, 268 Pa.Super. 526, 535, 408 A.2d 1128, 1132 (1979). A hearing was held in accordance with our Order on October 17-18, 1979, and on December 5, 1979. Following the hearing and the submission of briefs by both parties, the lower court granted a new trial as to the first trial but affirmed the convictions secured by the second trial.
The present appeal is thus limited to appellant’s claim of ineffective assistance of counsel at his second trial on November 14-15, 1977. First, I will address appellant’s contention that neither his preliminary arraignment nor preliminary hearing was timely. In the case sub judice, appellant was arrested on June 22, 1977 on a parole violation. Appellant was not arrested on the charges for which he was tried on three separate occasions until July 12, 1977. On that same day, appellant was taken before District Magistrate Wesley J. Read in Dubois, Pennsylvania, for his preliminary arraignment. Thus, appellant’s contention that his preliminary arraignment was untimely is meritless.
The Commonwealth, fully prepared to proceed with the preliminary hearing, objected to any further delays. Magistrate Read granted the Commonwealth’s motion to proceed and thereafter held appellant for trial on three counts of forgery, four counts of receiving stolen property, and eight counts of criminal conspiracy.
I conclude that appellant’s allegation that his preliminary hearing was untimely is without merit in that the first scheduled hearing was well within the prescribed time limits and the continuances were granted for good cause.
Appellant next contends that his lack of representation at the August 5, 1977 preliminary hearing constituted reversible error, and that his court-appointed trial counsel was ineffective for not raising this issue. It is axiomatic that the preliminary hearing is a “critical stage” of a criminal proceeding at which appellant is entitled to the assistance of effective counsel. Coleman v. Alabama, 399 U.S. 1, 90
Appellant has made no allegation of specific prejudice and the record reveals none, for appellant received a second preliminary hearing prior to his second trial. Furthermore, as noted by the district attorney at the evidentiary hearing, the Commonwealth had all of its witnesses present on both August 5, 1977, and July 26, 1977. Moreover, even though the hearing on July 26, 1977, was continued due to a conflict arising between the Commonwealth’s and appellant’s counsel, appellant’s counsel stated that he would have not represented appellant at that hearing due to the fact that he had not received his fee. In addition, Mr. Garshak arrived an hour late for the August 5, 1977, hearing, and then withdrew his appearance as a result of not having been compensated. The Commonwealth’s witnesses were so infuriated by the delays that one left, resulting in the Commonwealth being unable to proceed in one of its cases against appellant.
The absence of counsel at the August 5, 1977, hearing was the fault of appellant and his counsel, Mr. Garshak. At his preliminary arraignment on July 12, 1977, appellant was advised of his right to have court-appointed counsel and he failed to exercise that right. The original preliminary hear
Appellant next raises the issue of whether he was subjected to double jeopardy. In Commonwealth v. Miller, 278 Pa.Super. 103, 106-107, 419 A.2d 1378, 1380 (1980), we stated the law to be applied in such instances:
“In the case of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), our Supreme Court held that double jeopardy considerations require a prosecutor to bring, in a single proceeding, all known charges against a defendant arising from a ‘single criminal episode.’ Shortly after that decision, the General Assembly put into effect section 110 of the Crimes Code which provides in pertinent part:
‘Although a prosecution ... is based on different facts [than a former prosecution], it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title ... and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense;
*287 Applying section 110 to the instant situation, we conclude that appellant is not entitled to discharge. To win discharge under § 110(l)(ii), appellant would have to prove that his offenses were ‘based on the same conduct or ar[ose] from the same criminal episode.’ See Commonwealth v. Shelhorse, 252 Pa.Super. 475, 381 A.2d 1305 (1977). The record in the instant case reveals that indictments numbers 305 and 47 charged appellant with theft and conspiracy offenses occurring on the same premises and against the same victim. The criminal incidents represented by each indictment entailed, however, distinct entries into the same residence and were temporally separated by a period of at least six hours. Under these circumstances, we hold that the ‘same criminal episode’ test of Campana and section 110 has not been met, and therefore the instant prosecution is not prohibited.”
In the present case, the offenses faced by appellant in his second trial not only occurred at a different time than the offenses charged in the first trial as in Miller, supra, but also involved different locations and parties. I therefore conclude that appellant was not subjected to double jeopardy in the lower court proceeding, and thus, his trial counsel was not ineffective for failing to raise this issue.
Regarding appellant’s final issue concerning appellant’s allegation that his trial counsel was ineffective for not perserving for appellate review the issue involving the search of appellant’s vehicle, I must respectfully dissent concerning this issue. The facts surrounding this search and seizure are as follows. On May 13, 1977, Sergeant Nearing of the Warren Borough Police Department observed a Cadillac automobile parked in a no parking zone
Failing to secure a record for the vehicle, Officer Moore, Sergeant Nearing’s partner at the scene, checked through the windshield to view the vehicle I.D. number. Finding it to be missing, the officers subsequently impounded the vehicle. The next day, they procured a national auto theft book and searched the vehicle for an identification number. During this search, the officers followed the instructions in the book and opened the glove compartment. Although they did not find the missing number, they did discover the corporate seal of the Spruce Hill Equipment Corporation in plain view. Continuing their search for the vehicle identification number, the officers inspected the trunk of the vehicle where they observed in plain view a check-writing machine and a box of checks belonging to the Spruce Hill Equipment Corporation. These objects were subsequently used as evidence at appellant’s second trial.
The police officers quite properly impounded the car after learning that the license plate was not registered and that the dashboard vehicle identification number was absent. However, the record is devoid of any mention as to whether the officers who conducted the search of the entire vehicle, including the glove compartment and trunk, possessed a search warrant or whether appellant’s counsel had knowledge of the existence of such a warrant.
In South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976), the United States Supreme Court, in upholding the warrantless search of a motor vehicle, stated:
*289 When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property. United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, supra [386 U.S. 58] at 61-62, 17 L.Ed.2d 730, 87 S.Ct. 788 [at 790-791]. The practice has been viewed as essential to respond to incidents of theft — or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 31 L.Ed.2d 807, 92 S.Ct. 1501 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned. (Emphasis added).
And at 428 U.S. 367-68, 96 S.Ct. 3096, 1004 of 49 L.Ed.2d:
This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are “effects” and thus within the reach of the Fourth Amendment, Cady v. Dombrowski, 413 U.S. 433, 439, 37 L.Ed.2d 706, 93 S.Ct. 2523 (1973), warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. Cardwell v. Lewis, 417 U.S. 583, 589, 41 L.Ed.2d 325, 94 S.Ct. 2464 [2468], 69 Ohio Ops.2d 69 (1974); Cady v. Dombrowski, supra [413 U.S.] at 439-440, 37 L.Ed.2d 706, 93 S.Ct. 2523 [at 2527]; Chambers v. Maroney, 399 U.S. 42, 48, 26 L.Ed.2d 419, 90 S.Ct. 1975 [1979] (1970).
The reason for this well-settled distinction is two-fold. First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity,*290 rigorous enforcement of the warrant requirement is impossible. Carroll v. United States, 267 U.S. 182, 153-154, 69 L.Ed. 543, 45 S.Ct. 280 [285], 39 ALR 790 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 29 L.Ed.2d 564, 91 S.Ct. 2022 [2034-2035] (1971). But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction. Chambers v. Maroney, supra [399 U.S.] at 51-52, 26 L.Ed.2d 419, 90 S.Ct. 1975 [at 1981-1982]; Cooper v. California, 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788 (1967). Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. In discharging their varied responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Cady v. Dombrowski, supra [413 U.S.] at 442, 37 L.Ed.2d 706, 93 S.Ct. 2523 [at 2528]. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.
The expectation of privacy as to automobiles is further diminished by the obviously public nature of automobile travel. Only two Terms ago, the Court noted:
“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects____ It travels public thoroughfares where both its occupants and its contents are in plain view.” Cardwell v. Lewis, supra [417 U.S. 583] at 590,*291 41 L.Ed.2d 325, 94 S.Ct. 2464 [at 2469], 69 Ohio Ops.2d 69.
And at 428 U.S. 371, 96 S.Ct. 3098, 1006 of 49 L.Ed.2d:
The majority of the Federal Courts of Appeals have likewise sustained inventory procedures as reasonable police intrusions. As Judge Wisdom has observed:
“[W]hen the police take custody of any sort of container [such as] an automobile ... it is reasonable to search the container to itemize the property to be held by the police. [This reflects] the underlying principle that the fourth amendment proscribes only unreasonable searches.” United States v. Gravitt, 484 F.2d 375, 378 (CA5 1973), cert. denied, 414 U.S. 1135, 38 L.Ed.2d 761, 94 S.Ct. 879 (1974).
And at 428 U.S. 372-73, 96 S.Ct. 3098-99, 1007 of 49 L.Ed.2d:
The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable. In the first such case, Mr. Justice Black made plain the nature of the inquiry before us:
“But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment.” Cooper v. California, 386 U.S., at 61, 17 L.Ed.2d 730, 87 S.Ct. 788 [at 790] (emphasis added).
And, in his last writing on the Fourth Amendment, Mr. Justice Black said:
“[T]he Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only ‘unreasonable searches and seizures.’ The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.” Coolidge v. New Hampshire, 403 U.S., at 509-510, 29 L.Ed.2d 564, 91 S.Ct. 2022 [at 2059-2060] (concurring and dissenting) (emphasis added).
*292 In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. In Cooper v. California, supra, the Court upheld the inventory of a car impounded under the authority of a state forfeiture statute. Even though the inventory was conducted in a distinctly criminal setting and carried out a week after the car had been impounded, the Court nonetheless found that the car search, including examination of the glove compartment where contraband was found, was reasonable under the circumstances. This conclusion was reached despite the fact that no warrant had issued and probable cause to search for the contraband in the vehicle had not been established. The Court said in language explicitly applicable here:
“It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.” 386 U.S., at 61-62, 17 L.Ed.2d 730, 87 S.Ct. 788 [at 790-91].
In the present situation, the police were attempting to determine if the vehicle had been stolen since the dashboard vehicle I.D. number was missing. In continuing their attempt to locate the vehicle I.D. number, the police, following the instructions in the national auto theft book, opened the glove compartment and trunk and found the corporate seal, check-writing machine, and the box of checks which were admitted into evidence. Thus, the conduct of the police was not “unreasonable” under the Fourth Amendment, because the car was validly held. South Dakota v. Opperman, supra, and Cooper v. California, supra.
Therefore, I submit that counsel was not ineffective for failing to raise this issue and thus I would affirm the judgment of the lower court.
. 18 Pa.C.S.A. § 4101.
. 18 Pa.C.S.A. § 3925.
. 18 Pa.C.S.A. § 903.
. Pa.R.Crim.P. 123(a)-(c) is as follows:
"(a) Where the offense charged is bailable before an issuing authority and the defendant has been arrested in a county other than where the warrant of arrest was issued, the arresting person shall take the defendant to an issuing authority in the county of arrest for the purpose of posting bail.
(b) Such issuing authority shall advise the defendant of his right to post or waive bail. Unless the right to post bail is waived, the defendant shall be admitted to bail conditioned upon his appearance for the preliminary arraignment before the issuing authority whose name appears on the warrant at a date certain not less than five (5) nor more than ten (10) days thereafter.
(c) A defendant may post bail to appear at a preliminary hearing, or if the attorney for the Commonwealth does not object, he may waive preliminary hearing and post bail to appear in court. Where an objection is made to such waiver, the defendant may post bail only for his appearance at the preliminary hearing.”
In reaching this conclusion, I must disagree with the lower court which found that the preliminary arraignment was held twenty-one days after appellant was arrested. Appellant’s arrest on June 12, 1977,
. Appellant has also raised the issue of whether the lower court erred in not recusing itself from the evidentiary hearing in that the rulings alleged to be prejudicial involving appellant’s first trial which was reversed by the lower court, I find appellant's contention to be groundless.