Com. v. Allen

• Decision Date: 29 September 2003
• Citation: 833 A.2d 800
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Brooks W. ALLEN, Appellant.
• Court: Pennsylvania Superior Court

833 A.2d 800

COMMONWEALTH of Pennsylvania, Appellee, v. Brooks W. ALLEN, Appellant.

Superior Court of Pennsylvania.

Submitted May 5, 2003.

Filed September 29, 2003.

Joanne Tyler-Floyd, York, for appellant. Brian D. Jacisin, Asst. Dist. Atty., York, for Com., appellee.

BEFORE: ORIE MELVIN, TODD, and TAMILIA, JJ.

OPINION BY TODD, J.:

¶ 1 Brooks W. Allen appeals the order entered August 5, 2002 by the York County Court of Common Pleas dismissing his petition for relief under the Post Conviction Relief Act ("PCRA").¹ We affirm.

¶ 2 The factual and procedural history of the instant case may be summarized as follows: On June 22, 1997, Appellant left the bar where he had spent the evening drinking and began driving his car on Lewisberry Road in York County. At one point, Appellant drove off the roadway and struck Robbie Maples, a 15-year-old pedestrian. Upon impact, Robbie's leg was severed and his body was impaled on Appellant's windshield. Appellant continued to drive his automobile for approximately 2½ miles until the victim's body rolled off of the windshield near the intersection of Old York Road. However, Appellant did not stop to render aid at that time. Rather, Appellant continued driving for another five miles until he reached the Cloverleaf Tavern. Police officers, who had begun to follow Appellant, approached him in the parking lot. As Appellant exited his car, he exclaimed "[O]h my God, I hit someone!" (N.T. Hearing 9/24/97, at 26 (per testimony of Officer Jay Smith).) The police officers noticed that Appellant's eyes were bloodshot and that his breath smelled of alcohol. They also observed alcoholic beverage containers inside of Appellant's car. Appellant was arrested and taken to the hospital for blood tests, which revealed a blood alcohol content of .17.

¶ 3 On January 5, 1998, Appellant pled nolo contendere to charges of third-degree murder, involuntary manslaughter, aggravated assault, homicide by vehicle while driving under the influence ("DUI"), and DUI in exchange for an agreement that the maximum sentence imposed would be 10 to 20 years. On February 9, 1998, Appellant was sentenced to an aggregate term of 8½ to 17 years imprisonment. Appellant did not file a direct appeal; however, on February 4, 1999, he filed a pro se motion to modify his sentence nunc pro tunc. The trial court dismissed Appellant's motion without a hearing and without appointment of counsel. On March 4, 1999, Appellant filed a pro se appeal of the trial court's order denying his motion for modification of sentence. Thereafter, on April 19, 1999, Appellant filed a pro se motion for appointment of counsel. On that same day, counsel was appointed to represent Appellant. On October 22, 1999, however, counsel withdrew and discontinued the appeal.

¶ 4 On October 10, 2000, Appellant filed a pro se PCRA petition, wherein he raised, inter alia, claims of ineffective assistance of counsel, illegality of sentence, and an unlawfully induced guilty plea. New counsel was appointed to represent Appellant. Ultimately, however, the court dismissed Appellant's PCRA petition on the basis that it was untimely. On appeal, this Court concluded that the PCRA court had erred in refusing to treat Appellant's motion for a modification of sentence as a first PCRA petition, and we further held that his October 10, 2000 petition was an extension of his timely first petition. Accordingly, we remanded the case to the trial court for an evidentiary hearing. Commonwealth v. Allen, No. 124 MDA 2001, 799 A.2d 163, unpublished memorandum (Pa.Super. filed March 26, 2002). Following a hearing on July 31, 2002, the trial court dismissed Appellant's claims. This timely appeal followed.

¶ 5 On appeal, Appellant presents the following issues for this Court's review:

A. Was [trial] counsel ineffective for advising Appellant to enter pleas of no contest to third degree murder and aggravated assault where there was no factual basis for establishing that Appellant acted with malice when he accidentally struck and killed a pedestrian while operating his motor vehicle?

B. Was the Commonwealth's offer of proof sufficient to establish that Appellant acted with malice, thereby giving the lower court a factual basis for accepting no contest pleas to third degree homicide and aggravated assault?

(Appellant's Brief at 1.)

¶ 6 Our review of the denial of PCRA relief "is limited to determining whether the record supports the findings of the PCRA court and whether the court's order is otherwise free of legal error." Commonwealth v. Williams, 730 A.2d 507, 510 (Pa.Super.1999). In order to be eligible for relief under the PCRA based on a claim of ineffectiveness, an appellant "must prove (1) that the underlying claim has arguable merit, (2) that counsel's conduct was without a reasonable basis designed to effectuate his or her client's interest, and (3) that counsel's ineffectiveness prejudiced the appellant." Commonwealth v. Robinson, 781 A.2d 152, 161 (Pa.Super.2001) (citing Commonwealth v. Wallace, 555 Pa. 397, 407, 724 A.2d 916, 921 (1999)).

¶ 7 It is clear that a criminal defendant's right to effective counsel extends to the plea process, as well as during trial. Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super.2002). However,

[a]llegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Where the defendant enters his plea on the advice of counsel, "the voluntariness of the plea depends on whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Id. (citations omitted).

¶ 8 Both of Appellant's arguments on appeal are based on his assertion that there was no factual basis for establishing that he acted with the malice necessary to support charges of third-degree murder and aggravated assault. This Court has explained:

Third degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice. Aggravated assault arises when a person attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting an extreme indifference to the value of human life. Malice is the crucial element in question ... as it is the component which distinctly characterizes both of these offenses.

Commonwealth v. Kling, 731 A.2d 145, 147 (Pa.Super.1999) (citations omitted). We further stated in Kling:

Malice exists where there is a "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured." Where malice is based on a reckless disregard of consequences, it is not sufficient to show mere recklessness; rather, it must be shown the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury. A defendant must display a conscious disregard for almost certain death or injury such that it is tantamount to an actual desire to injure or kill; at the very least, the conduct must be such that one could reasonably anticipate death or serious bodily injury would likely and logically result.

Id. at 147-48 (citations omitted).

¶ 9 We acknowledged in Kling that "[i]n view of this heightened mens rea, motor vehicle crashes seldom give rise to proof of the malice needed to sustain a conviction for third degree murder or aggravated assault," Kling, 731 A.2d at 148, and noted our Supreme Court's decisions in Commonwealth v. O'Hanlon, 539 Pa. 478, 653 A.2d 616 (1995), and Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593 (1998), on which Appellant relies.

¶ 10 In O'Hanlon, a driver ran a red light and struck another vehicle, causing serious injury to another driver. Our Supreme Court reversed the appellant's conviction for aggravated assault on the basis that he was guilty only of mere recklessness, stating that "[s]erendipity, not intention, placed the victim in his path when he drove through the red light." O'Hanlon, 539 Pa. at 483, 653 A.2d at 618. More recently, in Comer, our Supreme Court reversed a conviction for aggravated assault where the appellant, who had ingested alcohol and barbiturates, drove his car at an excessive rate of speed. As he was driving, the right tire of the appellant's car rubbed the curb, and then the vehicle left the highway, crashed into a bus stop, and eventually struck a brick wall. One person was killed and another was severely injured as a result of the appellant's actions. Our Supreme Court held that the appellant's conduct, while criminally reprehensible, was nonetheless insufficient to establish the state of mind equivalent to that which seeks to cause injury.

¶ 11 As we noted in Kling, however, in both O'Hanlon and Comer, our Supreme Court distinguished this Court's holding in Commonwealth v. Scofield, 360 Pa.Super. 552, 521 A.2d 40 (1987), appeal denied, 517 Pa. 593, 535 A.2d 82, wherein we upheld the appellant's conviction for aggravated assault. In Scofield, the appellant was driving his car and scraped it against the bumper of another vehicle parked on the street. Although sparks emanated, Scofield drove another ten feet, swerved onto the sidewalk and struck a building. A passing cabdriver,...