Com. v. O'BIDOS

• Decision Date: 23 April 2004
• Citation: 849 A.2d 243
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Richard O'BIDOS, Appellant.
• Court: Pennsylvania Superior Court

849 A.2d 243

COMMONWEALTH of Pennsylvania, Appellee, v. Richard O'BIDOS, Appellant.

Superior Court of Pennsylvania.

Submitted: January 12, 2004.

Filed: April 23, 2004.

Ari S. Moldovsky, Philadelphia, for appellant.

Hugh J. Burns, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before: JOYCE, OLSZEWSKI, and JOHNSON, JJ.

OLSZEWSKI, J.:

¶ 1 Richard O'Bidos (appellant/defendant) appeals from his judgment of sentence imposed by the Court of Common Pleas, Philadelphia County (Lazarus, J.). We affirm.

¶ 2 The trial court adequately discussed the facts of this case.

On September 9, 1997, at between five and six o'clock in the evening, complainant [victim] received a telephone call from the appellant, who was the manager of the ambulance company for which she had been working for approximately one year. Complainant also had a friendly personal relationship with the appellant and his family. Appellant requested that complainant report for work that evening because he was shorthanded. Complainant obtained care for her children and reported to work at approximately 9:30 p.m. Another employee who was in the office when complainant arrived was dismissed for the evening by appellant shortly thereafter.

The complainant and the appellant sat down on either side of appellant's desk and briefly spoke about business matters, after which the appellant walked around the desk and began massaging the complainant's shoulders. After the complainant instructed the appellant to stop, he grabbed her arm, pulled her from the chair, and threw her on the ground behind the desk. Appellant began to kiss the complainant and she again told him to stop. Appellant then slapped the complainant in the face and threatened to hit her again if she did not be quiet. She attempted to fight him off and he covered her mouth, punched her in the stomach and began ripping off her shirt. He proceeded to kiss the complainant's breasts and hit her again in the stomach when she started to scream. Thereafter, appellant pulled the complainant's pants down around her knees and forced his penis into her vagina. After he finished raping her, he instructed her to "get the fuck out." N.T. 10/6/98, p. 51.

Complainant ran to her car, drove to a pay phone and called her friend, Heidi Kaufman. Ms. Kaufman told her to go home and that she would meet her there, which she did. Once there, Ms. Kaufman advised her not to wash or shower for evidentiary purposes. They called the police, who instructed her to go to the hospital. Complainant proceeded to Nazareth Hospital but was informed there that nothing could be done because they did not have the capacity to do a rape kit. Complainant was then taken by a police officer to the sex crimes unit, where she was questioned and then taken to Episcopal Hospital for a rape kit.

Jeffrey Geller, M.D., treated the complainant at Episcopal Hospital. At trial, he was qualified as an expert in emergency medicine and the collection of sexual assault kits and testified that his findings upon examination of the complainant on the night of the alleged incident were "not inconsistent" with the complainant's testimony that a sexual assault had been perpetrated upon her. N.T. 10/7/98, p. 77.

The specimens obtained by Dr. Geller at Episcopal Hospital, as well as the panties worn by the complainant on the night of the assault, were tested at the Philadelphia Criminalistics Laboratory and tested positive for sperm cells and prostatic acid phosphatese, a semen enzyme.

Defendant agreed to surrender himself to the authorities on September 25, 1997. He failed to surrender as agreed and was arrested on September 27, 1997.

The defense presented the testimony of two witnesses, both of whom claim to have seen the appellant and complainant together earlier on the evening of the assault. Jennifer Hopta, a waitress at the Riverbank bar on Delaware Avenue, testified that she saw the appellant and complainant together at the bar sometime between 7:00 p.m. and 9:30 p.m. Juan Clark, an acquaintance of the appellant, testified that he saw the appellant and complainant at Penn's Landing sometime between 4:00 p.m. and 6:00 p.m.

Trial Court Opinion, 7/8/03, at 2-4. After a jury trial, appellant was found guilty of rape.

¶ 3 The post-trial procedural history of this case is significant to the ultimate disposition of this case. We described the procedural history in our most recent decision.

On December 8, 1998, [appellant] was sentenced to a term of 7½ to 15 years incarceration. Appellant was represented at trial by Fortunato Perr[i], Esquire. After sentencing, Appellant retained Ronald Joseph, Esquire, as counsel. Appellant then filed a notice of appeal and was ordered by the trial court to file a statement of matters complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Although Appellant failed to comply with the trial court's order to file a 1925(b) statement, the trial court nevertheless proceeded to address the issue of whether the evidence was sufficient to support Appellant's conviction. On direct appeal, Appellant challenged both the sufficiency and weight of the evidence and argued that trial counsel provided ineffective assistance by: failing to offer in his opening and closing statements a clear theory of what happened between Appellant and the victim; dissuading Appellant from testifying on his own behalf; and failing to request DNA testing of semen samples taken from the victim. Noting that we had the benefit of the trial court's opinion on the issue of Appellant's challenge to the sufficiency of the evidence, this Court reviewed that claim on appeal; however, we held that Appellant's remaining claims had been waived under Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998)[,] as a result of his failure to include them in a 1925(b) statement. On March 7, 2000, we affirmed Appellant's judgment of sentence. Commonwealth v. Obidos, 268 EDA 1999, unpublished memorandum, 757 A.2d 995 (Pa.Super.2000).

On September 6, 2000, Appellant filed a timely pro se PCRA petition, wherein he sought reinstatement of his direct appeal rights nunc pro tunc on the basis that his prior appellate counsel provided ineffective assistance by failing to file a 1925(b) statement in accordance with the trial court's order. Present counsel was appointed to represent Appellant and counsel filed an amended PCRA petition on December 18, 2000. Following a hearing on September 12, [September 13, and November 27,] 2001, the PCRA court denied Appellant relief.

Commonwealth v. O'Bidos, 974 EDA 2002, unpublished memorandum at 1-3, 828 A.2d 401 (Pa.Super. filed March 31, 2003). Appellant appealed the PCRA court's denial of relief to this Court, and we reinstated appellant's direct appeal rights nunc pro tunc. We are now entertaining appellant's reinstated direct appeal.

¶ 4 Appellant raises four issues for our review: (1) whether trial counsel was ineffective for failing to call Julann Banscher and appellant as witnesses; (2) whether the verdict was against the weight of the evidence; (3) whether the conviction was against the sufficiency of the evidence; and (4) whether appellant was denied a fundamental right when trial counsel prevented him from testifying at trial.

INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 5 Appellant first raises claims of ineffective assistance of trial counsel. The Commonwealth argues that claims of ineffective assistance are not generally permitted on direct review and that appellant should raise these claims in a subsequent PCRA petition.

¶ 6 The Commonwealth correctly cites to Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), for the proposition that claims of ineffective assistance of counsel should be deferred until collateral review.¹ The Commonwealth argues that we may not consider appellant's claims of ineffective assistance because this "second" direct appeal, which we granted nunc pro tunc, essentially limits our scope of review to events that occurred "prior to the [original] direct appeal, [and] not in a PCRA proceeding." Commonwealth's brief, at 6. Essentially, the Commonwealth wants us to ignore the PCRA proceedings that occurred in September and November of 2001 where appellant, Julann Banscher, and appellant's trial attorney, Fortunato Perri, testified. We are not persuaded by the Commonwealth's argument.

¶ 7 Initially, we note that our Supreme Court carved out an exception to the general rule in Grant. We are permitted to review claims of ineffectiveness on direct appeal "for which there is an evidentiary record developing the claims and a trial court opinion addressing those claims." Commonwealth v. Belak, 573 Pa. 414, 825 A.2d 1252, 1254 n. 6 (2003) (citing Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003)). Such a record exists in the instant case.

¶ 8 Appellant's case is procedurally similar to Commonwealth v. Wright, 832 A.2d 1104 (Pa.Super.2003). In Wright, the defendant filed a timely PCRA petition and alleged trial counsel ineffectiveness for failure to file a direct appeal. The PCRA court granted the defendant an appeal nunc pro tunc. In the defendant's nunc pro tunc appeal to this Court, we reviewed the merits of the ineffectiveness claim. In doing so, we noted that the issue was "fully litigated at the PCRA hearing," and that "an adequate record [exists] upon which we can assess this ineffectiveness claim because there was a full evidentiary hearing on the issue at which trial counsel appeared and testified." Wright, 832 A.2d at 1108-09. In the instant case, the PCRA court held a hearing on the issue of trial counsel ineffectiveness where appellant, Julann Banscher, and appellant's trial attorney, Fortunato Perri, testified. Accordingly, we are able to adequately review appellant's ineffective assistance of counsel claims. See also Commonwealth v. Corley, 816 A.2d 1109, 1114 n. 1 (Pa.Super.2003)

(on direct appeal nunc pro tunc, ineffective...