Commonwealth v. Kauffman

DEL SOLE, Judge:

This is an appeal by Charles Kauffman from convictions for first degree murder and receiving stolen property. The murder charge was in connection with the strangulation death of eleven year old Timmy Freed. After the jury rendered its guilty verdicts, a sentencing hearing was held on the first degree murder conviction, on May 20, 1989. The jury was not able to reach agreement on whether to sentence Appellant to life imprisonment or to death for this crime. Therefore, the lower court, in accordance with Rule 354, et seq., Pa.R.Crim.P., 42 Pa.C.S., immediately imposed a life sentence.

Unlike the normal post-verdict procedures, where sentence is imposed following consideration of the defendant’s post-verdict motions and the filing of a pre-sentence investígation report, here, post-verdict motions must be filed within ten days after the imposition of sentence. Furthermore, it is not until the post-verdict motions are decided that the sentence becomes final for the purposes of appeal. Rule 359(C) & (F), Pa.R.Crim.R, 42 Pa.C.S.A. Therefore, in accordance with this procedure, on February 8, 1990, the trial court denied Appellant’s post-trial motions. However, it was not until July 13,1990 that the lower court sentenced Appellant on his conviction for receiving stolen property, and on August 10, 1990, Appellant filed the instant appeal challenging both his murder conviction and his conviction for receiving stolen property.

Before proceeding to the merits of this appeal, we note that the' appeal from the judgment of sentence on first degree murder was not filed within thirty days after dismissal of post-trial motions. As we noted above, under Rule 359, when the court rules on the post-verdict motions in a first degree murder conviction, this triggers the running of the thirty day period for filing an appeal. Nevertheless, we do not find that the issues pertaining to the murder conviction are waived.

In the interests of judicial economy and the avoidance of piecemeal appeals, we hold that in cases where a mandatory sentence is imposed immediately after the verdict is rendered, an appeal from the Rule 359 sentence is not untimely if it is filed within 30 days of the date that sentence is imposed on the remaining counts on which the defendant has been convicted at the same trial. We also hold that it would not be error to file two appeals, one within 30 days of the denial of post-verdict motions following the murder conviction, and one within 30 days of sentence on the final charges. In both instances, all issues properly preserved at trial and raised in post-trial motions would be preserved for appellate review.

In this appeal, Mr. Kauffman raises six issues for our review. They are:

I. Whether the evidence was sufficient to sustain the first degree murder verdict, and whether the verdict was against the weight of the evidence.

II. Whether the trial court erred in failing to suppress evidence seized from Appellant.

III. Whether the trial court erred in admitting photographic evidence of the corpse, and whether it erred in admitting expert evidence as to the time of death.

IV. Whether the trial court erred in limiting cross-examination of a jailhouse informant.

V. Whether a new trial should be granted based on prosecutorial misconduct.

VI. Whether Appellant was ineffectively represented by counsel and an ineffectiveness hearing should be granted because:

1) the ongoing animosity between Appellant and his defense counsel resulted in ineffective representation,

2) trial counsel failed to ask for a severance of the theft charges from the homicide charges,

3) trial counsel failed to call certain alibi witnesses,

4) trial counsel failed to cross-examine certain witnesses concerning charges pending against them.

Concerning the first five issues, we have carefully reviewed the record, the well-reasoned opinions of the lower court, and briefs of the parties. We conclude that the result reached by the trial court on these issues is correct and therefore we affirm. The ineffectiveness of counsel who represented Appellant at trial and during post-trial motions, is raised here at the first opportunity, and we will therefore consider the merits of these claims.

The standard used for assessing counsel’s stewardship is well established. Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with the Appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984). We inquire first whether the underlying claim is of arguable merit. Then, we ask whether counsel had any reasonable basis for the questionable act or omission, and if there was such a basis our inquiry ends. If there is no reasonable basis, then Appellant will be granted relief only if counsel’s improper course of conduct was prejudicial, resulting in an adverse effect upon the outcome of the proceedings. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). Commonwealth v. Pierce, 515 Pa. 153, 158-60, 527 A.2d 973, 975-976 (1987).

Appellant’s first claim that because of the ongoing animosity between Appellant and trial counsel, counsel was ineffective, is unsupported by any averment of specific prejudice. Without a factual predicate upon which counsel’s assistance may be evaluated, we hold that this claim is too general to entitle Appellant to relief. See, Commonwealth v. Thomas, 372 Pa.Super. 349, 364, 539 A.2d 829, 837 (1988). Furthermore, the record shows that despite any animosity that may have existed, counsel was a zealous advocate for Appellant. He frequently objected to evidence he deemed improper, and cogently argued his position to the court. Counsel also called an expert witness for the defense to challenge the Commonwealth’s expert testimony concerning the identity of a shoe print found on the victim’s back. This general claim of ineffectiveness is unsupported by the record.

We also see no ineffectiveness in counsel’s failure to ask for a severance of the theft from the homicide charge. Appellant argues that because both crimes were tried together, the jury was able to infer a criminal disposition on the part of the defendant from which it found his guilt of the other crimes. However, Appellant was found not guilty of the theft of the automobile (although he was found guilty of receiving the stolen property), and therefore we may conclude that no such cross-over inference was made by the jury.

We do, however, hold that an evidentiary hearing is required in order to determine whether counsel was ineffective for failing to subpoena certain witnesses which Appellant alleges he requested, and for failing to cross-examine two Commonwealth witnesses concerning charges pending against them. “When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the trial court to permit the defendant to develop evidence on the the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing.” Commonwealth v. McBride, 391 Pa.Super. 113, 570 A.2d 539, 543 (1990), citing, Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). First, we will evaluate the claims concerning each witness seriatim.

Appellant claims that he requested trial counsel to subpoena the boy, and/or the person who drove the boy, who delivered a newspaper to Rose Colna’s house, and spoke to him about payment for the newspaper. Appellant contends that this testimony would establish that he was present at the house before 6:00 p.m. on August 13, 1988, the time the crime was committed. Appellant further argues that failure to subpoena these witnesses was ineffectiveness.

We agree that if Appellant can establish that counsel had been told of the existence of these witnesses and failed to try to locate them, and if they would testify as alleged, then Appellant’s claim of ineffective assistance of counsel is colorable. We have held that Appellant must show (1) the identity of the witnesses, (2) that counsel knew of the existence of the witnesses, (3) the material evidence that the witnesses would have provided, and (4) the manner in which the witnesses would have been helpful to his cause. Commonwealth v. Polk, 347 Pa.Super. 265, 271-273, 500 A.2d 825, 828-829 (1985).

It is apparent that if these witnesses testified as Appellant predicted, they would have established an alibi at an important period of time. The pathologist testified that the murder occurred at some time between 5:00 and 7:00 o’clock on August 13, 1988. Moreover, counsel for the Commonwealth stated in his closing argument that Appellant didn’t account, “for the time, the only crucial time in this case. Where was he between 5 o’clock and 6:30?” (N.T. at 831, May 19, 1989). Therefore, an evidentiary hearing is needed to substantiate the claim of ineffectiveness concerning these two alibi witnesses.

Next, Appellant claims that Bobby Tobin should have been called to verify that Appellant was “at the pavilion and Dobie Dam.” Because we find that this claim is too general, it does not specify the time in which Appellant was seen at these locations, and because it is not clear how such evidence would have been helpful to Appellant’s cause, Commonwealth v. Blagman, 350 Pa.Super. 367, 504 A.2d 883 (1986), especially since this same witness had provided damaging evidence in his testimony for the Commonwealth concerning Appellant’s presence at other times in another place, we conclude that this claim need not be addressed at the evidentiary hearing.

However, we do believe that the claim of ineffectiveness for failure to call Mr. Thomas Elo and other members of the Cumbola Fire Company, who would allegedly testify that Appellant was not wearing any sneakers at the scene of an accident near the murder scene and just prior to the murder, should be explored at the evidentiary hearing.

The last of these witnesses who Appellant claims should have been called werex the various inmates whose names were not known to the defendant but who could have been ascertained by examination of the roster at the Chesterfield County, Virginia jail, and were in the transit cell block at the time of another inmate’s, Mr. Fore’s, conversation with the defendant, in which Appellant made some damaging admissions. He claims that they would have testified that he did not have any conversations or confessions concerning the case. We find no merit to the underlying claim here. We do not believe that these unknown inmates can testify to the non-existence of a conversation that three other inmates either participated in or. overheard. It would be impossible for them to testify that this conversation never occurred, unless they were with Appellant every minute of the time he was in the transit cell. This is highly unlikely. Therefore, we hold that counsel was not ineffective for failing to call these inmate/witnesses.

Finally, we hold that the claim that counsel failed to cross-examine Commonwealth witnesses, Patricia Leskin and Donald Mehlman, as to charges pending against them is of arguable merit, and whether such charges were indeed pending should be explored at the evidentiary hearing. Potential bias and motivation to fabricate are properly subject to cross-examination. Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990). The party against whom a witness is called always has the right to show by cross-examination that the witness is biased or has an interest in the result of the trial. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990). If Appellant has been deprived of this essential right by counsel’s failure to cross-examine these two witnesses, then there may be merit to his claim of ineffectiveness.

However, Appellant’s claim that there was a conflict of interest because the public defender’s office was also representing Leskin and Mehlman has no merit. We do not see how there could be any harm in asking these witnesses if there were charges pending against them, and thus we can not see how the interests of the Appellant and those of the witnesses, if they were indeed clients of the public defender’s office, conflict.

Therefore, we affirm the judgment of sentence and remand solely for an evidentiary hearing on those claims of ineffectiveness which we have indicated are of arguable merit. If on remand the trial court concludes that Appellant’s counsel was ineffective, sentence should be vacated and the case should be remanded for a new trial. However, if the court on remand finds no ineffectiveness, Appellant shall have a right to appeal this finding within thirty days of entry of the trial court’s order.

CERCONE, J., files a concurring and dissenting opinion.