Com. v. Gaskins

• Decision Date: 08 April 1997
• Citation: 692 A.2d 224
• Parties: COMMONWEALTH of Pennsylvania v. LaFaye GASKINS, Appellant.
• Court: Pennsylvania Superior Court

Page 224

692 A.2d 224

COMMONWEALTH of Pennsylvania v. LaFaye GASKINS, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 3, 1997.

Filed April 8, 1997.

David S. Rudenstein, Philadelphia, for appellant.

Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before KELLY, FORD ELLIOTT, and OLSZEWSKI, JJ.

OLSZEWSKI, Judge:

On a cold afternoon in February of 1989, LaFaye Gaskins, appellant herein, shot Albert Dodson once at close range in the face and left him to die in an abandoned house. Four days later, the victim's frozen body was found and, following a thorough police investigation, appellant was arrested and charged with murder, robbery and possession of an instrument of crime (PIC).

In May of 1990, following a trial by jury, appellant was found guilty of the charges brought against him. Post-verdict motions were filed and denied. Thereafter, appellant's attorney, Colie Chappelle, Esquire, was permitted to withdraw as counsel.

Attorney Jack McMahon was then appointed to represent appellant. Supplemental post-verdict motions were subsequently filed and denied. Appellant was then sentenced to a term of life imprisonment for the murder conviction as well as concurrent terms of five-to-ten years imprisonment for the robbery conviction and one-to-five years imprisonment for the PIC conviction.

A timely appeal was taken to this Court, alleging the same purported trial court error that was the subject of the post-verdict motions. On direct appeal, appellant continued to be represented by Attorney McMahon. In an unpublished memorandum opinion, judgment of sentence was affirmed on November 6, 1992.

Appellant then filed a pro se motion pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. Present counsel, David Rudenstein, Esquire, was appointed to represent appellant. On November 30, 1994, Attorney Rudenstein filed an amended petition which alleged that prior counsel rendered ineffective assistance for failing to challenge: (1) the sufficiency of the evidence presented to convict appellant; (2) the weight of the evidence presented to convict appellant; and (3) the accuracy of the jury instruction pertaining to accomplice liability. Said petition was supplemented by memorandum of law on January 23, 1995. On October 20, 1995, pursuant to a Commonwealth motion, appellant's petition was dismissed without a hearing. This appeal follows.

When examining a post-conviction court's denial of relief, our scope of review is limited to a determination of whether the court's findings are supported by the record and are otherwise free of legal error. See, e.g., Commonwealth v. Legg, 447 Pa.Super. 362, 364-66, 669 A.2d 389, 391 (1995); Commonwealth v. Blackwell, 436 Pa.Super. 294, 303-05, 647 A.2d 915, 920 (1994). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id.

Additionally, we note that there is no absolute right to a hearing pursuant to the Post Conviction Relief Act. Rather, the post-conviction court may elect to dismiss a petition if it has thoroughly reviewed the claims presented and determined that they are utterly without support in the record. See, e.g., Blackwell, 436 Pa.Super. at 305-08, 647 A.2d at 921; Commonwealth v. Granberry, 434 Pa.Super. 524, 531-33, 644 A.2d 204, 208 (1994).

All of appellant's claims in the instant appeal relate to the quality of prior counsel's representation. We will therefore outline the standard of review at the outset. In order to prevail, appellant must demonstrate that the underlying claim is of arguable merit, that counsel's actions had no reasonable basis designed to effectuate his interests and that counsel's actions prejudiced him. See, e.g., Commonwealth v. Lam, 453 Pa.Super. 497, 507-09, 684 A.2d 153, 158 (1996); Commonwealth v. Jones 546 Pa. 161, 175, 683 A.2d 1181, 1188 (1996). A presumption of effectiveness exists, so the burden of establishing ineffectiveness rests squarely upon appellant. Jones, 546 Pa. at 175, 683 A.2d at 1188.

Initially, appellant posits that both trial and direct appeal counsel were ineffective in not challenging the sufficiency of evidence presented at trial to convict him. This issue is without merit and can afford appellant no relief.

When assessing whether the Commonwealth proffered sufficient evidence to sustain a conviction, this Court must view the evidence and all reasonable inferences derived therefrom in the light most favorable to the Commonwealth, as verdict winner, and determine whether sufficient evidence was presented to prove each element of the crime beyond a reasonable doubt. See, e.g., Commonwealth v. Smolko, 446 Pa.Super. 156, 162-64, 666 A.2d 672, 675 (1995).

With this in mind, we note that the testimony at trial established that, on the day of the murder, appellant and several cohorts conspired to sell a large quantity of drugs to the victim and the victim's friend. This was not the first time that such a transaction had occurred, and the parties were familiar with each other.

Mr. Edward Lee Clyburn, the victim's friend, remained in the vehicle during the transaction because he noticed that appellant was armed and feared that appellant planned to rob them. Mr. Clyburn warned the victim to forgo the sale, but the victim did not heed his advice and insisted on going through with the sale.

Mrs. Gloria Pittman, a local resident, saw appellant, the victim and a third man engaged in conversation across from her home. The victim carried a distinctive draw-string bag which contained approximately $20,000. The threesome then entered an abandoned building. Soon thereafter, Mrs. Pittman heard a gunshot and observed appellant and the third man flee the scene. At this time, appellant carried the same bag previously observed with the victim.

Acknowledging this testimony, appellant nevertheless avers that insufficient evidence was presented to convict him of first-degree murder. We disagree.

With respect to appellant's challenge to the veracity of Mrs. Pittman's testimony, we note that credibility determinations are made by the fact finder and that challenges thereto go to the weight, and not the sufficiency, of the evidence. We therefore decline appellant's invitation to adopt a test whereby the trial court must make a threshold determination of a witness's credibility and trustworthiness prior to the witness being qualified to testify. Appellant's brief at 13.

Indeed, were we to adopt this novel position, we would effectively usurp the role of the fact finder and be required to overrule the litany of well-reasoned caselaw which holds that the jury is free to accept some, none or all of the evidence. See, e.g., Commonwealth v. Zewe, 444 Pa.Super. 17, 22-26, 663 A.2d 195, 198-99 (1995); Commonwealth v. Butler, 436 Pa.Super. 321, 326-28, 647 A.2d 928, 931 (1994).

Appellant also claims that the evidence was insufficient to support his murder conviction because all that was established was that appellant "may have been present at the scene of a crime and fled thereafter." Appellant's brief at 14.

At the outset, we note that an eyewitness to any crime, including murder, has never been required to establish either that the crime occurred or that the defendant was culpable. Rather, a plethora of caselaw establishes that, provided the Commonwealth meets its burden of proof, circumstantial evidence alone may be used to convict one of a crime. See, e.g., Commonwealth v. Chmiel, 536 Pa. 244, 247-49, 639 A.2d 9, 11 (1994); Commonwealth v. Griscavage, 512 Pa. 540, 542-44, 517 A.2d 1256, 1257 (1986).

The above-related evidence established much more than mere presence and flight. Taken together, the witness's testimony proved that (1) appellant met the victim to consummate a drug deal; (2) appellant was armed; (3) appellant and the victim entered an abandoned building; (4) a gunshot was heard from inside the building; and (5) appellant fled the area while carrying the victim's possessions.

If believed, these facts prove that appellant had the motive and opportunity to kill the victim. Of course, when considering challenges to the sufficiency of the evidence, it is not the province of this Court to reweigh the evidence and reassess credibility determinations made by the factfinder.

We therefore hold that the Commonwealth proffered sufficient evidence to prove appellant guilty beyond a reasonable doubt of the crimes of murder, robbery and possession of an instrument of crime. Thus, prior counsel were not ineffective for failing to pursue this patently baseless and meritless claim. See, e.g., Commonwealth v. Blount, 538 Pa. 156, 162-64, 647 A.2d 199, 203 (1994); Commonwealth v. Brown, 538 Pa. 410, 420-22, 648 A.2d 1177, 1182 (1994).

Next, appellant avers that prior counsel were ineffective for failing to challenge the weight of the evidence via post-verdict motion and on direct appeal. This argument is likewise without merit.

As a general rule, weight of the evidence claims must first be posed to the trial court and cannot be considered for the first time on appeal. See, e.g., Commonwealth v. Perez, 444 Pa.Super. 570, 575-77, 664 A.2d 582, 585 (1995); Commonwealth v. Cruz-Centeno, 447 Pa.Super. 98, 106-08, 668 A.2d 536, 540 (1995). Such a challenge concedes that sufficient evidence was adduced to convict the defendant but that the verdict must nevertheless be overturned because the evidence was untrustworthy and unreliable. Id. It is not the function of an appellate...