Com. v. Bell

• Decision Date: 26 March 1998
• Citation: 706 A.2d 855
• Parties: COMMONWEALTH of Pennsylvania v. Larry L. BELL, Appellant.
• Court: Pennsylvania Superior Court

Page 855

706 A.2d 855

COMMONWEALTH of Pennsylvania v. Larry L. BELL, Appellant.

Superior Court of Pennsylvania.

Submitted July 28, 1997.

Filed Jan. 13, 1998.

Reargument Denied March 26, 1998.

Harvey L. Anderson, Philadelphia, for appellant.

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

Before CIRILLO, President Judge Emeritus, and FORD ELLIOTT and HESTER, JJ.

CIRILLO, President Judge Emeritus:

Appellant Larry L. Bell appeals from an order of the Court of Common Pleas of Philadelphia County denying his petition for relief under the Post-Conviction Relief Act. See 42 Pa.C.S.A. § 9541 et seq. ("PCRA"). We affirm.

Larry Bell and Elwood Small conspired to rob Patrick Blake, a drug dealer from whom Bell had recently purchased marijuana. After arming themselves, Bell with a shotgun and Small with a twelve-inch kitchen knife, the two men went to Blake's apartment in the 6300 block of Germantown Avenue in Philadelphia and demanded money from him. Bell ordered Small to wake the victim, John McCrary, who was asleep. Blake was stabbed by Small, but still managed to escape through a ground floor window. McCrary, attempting to wrest the gun from Bell, struggled with Bell before Small intervened. Small fatally stabbed McCrary. Meanwhile, residents outside the building came to Blake's aid and notified the police. Bell and Small fled from the apartment, carrying a small television set.

Larry Bell and co-defendant Small were tried before a jury and convicted of second-degree murder, robbery, aggravated assault and criminal conspiracy. Bell was sentenced to life imprisonment on the murder conviction and to concurrent terms of imprisonment of two and one-half to five years for aggravated assault and conspiracy. Bell appealed to this court, which affirmed the judgment of sentence. No petition for allocatur was filed.

On March 1, 1990, Bell filed a PCRA petition. After two evidentiary hearings, one on March 5, 1993 and one on July 12, 1993, the PCRA court denied Bell's petition. Bell filed an appeal to this court, raising several claims of ineffectiveness of counsel and one claim of after-discovered evidence. In one of his ineffectiveness claims, Bell argued that counsel was ineffective for failing to object to the jury charge on second-degree murder. In its charge, the court stated as one of the elements of second-degree murder that the jury must find that the killing was done "in the course of a robbery." Bell argued that the proper charge states that the killing be "in furtherance of a robbery." Bell maintained that his co-defendant killed the victim for personal reasons; he asserted that co-defendant Small's wife had had an adulterous affair with the victim, John McCrary. Bell asserted, therefore, that the murder was not done in furtherance of the underlying felony (robbery). See Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980); Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984); Commonwealth v. Rawls, 328 Pa.Super. 469, 477 A.2d 540 (1984). See also Commonwealth v. McNeal, 456 Pa. 394, 396-97, 319 A.2d 669, 671 (1974)("whether or not the killing in this case was 'committed in furtherance of the conspiracy' was a question ... for the jury.").

This court determined that Bell's claim did affect the truth-determining process and, therefore, the claim was cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2). However, because Bell had waited six years to file his PCRA petition, this court remanded, pursuant to 42 Pa.C.S.A. 9543(b), for a determination of whether the Commonwealth would be prejudiced in its ability to retry Bell. This court ordered that if prejudice were found, the order denying post-conviction relief should be reinstated; if prejudice were not found, a new trial would be ordered.

Section 9543(b) provides:

(b) Exception.-Even if the petitioner meets the requirements of subsection (a), the petition shall be dismissed if it appears that, because of delay in filing the petition, the Commonwealth has been prejudiced either in its ability to respond to the petition or in its ability to re-try the petitioner. A petition may be dismissed due to delay in the filing by the petitioner only after a hearing upon a motion to dismiss. This subsection does not apply if the petitioner shows that the petition is based on grounds which the petitioner could not have discovered by the exercise of reasonable diligence before the delay became prejudicial to the Commonwealth.

42 Pa.C.S.A. § 9543(b).

Pursuant to this court's order, an evidentiary hearing was held on August 5, 1996. At that hearing, Detective Peter Dailey testified regarding his efforts to locate witnesses who had testified at trial. He testified that Patrick Blake, the Commonwealth's main witness, had left two forwarding addresses, both in New York City. Detective Dailey sent certified mail to both addresses; both letters were returned as undeliverable. Detective Dailey also attempted to contact Blake through the Department of Motor Vehicles and the welfare department, with no success.

Detective Dailey learned that the victim's father, Carl McCrary, had passed away; the victim's mother had no information about Blake's whereabouts. Additionally, Detective Dailey contacted the funeral director who had buried the victim. The funeral director indicated that he did not know the victim's friends. Detective Dailey also attempted to contact two other witnesses without success: Marcella McCullough and Willa Mae Lockhart. Another witness, Walter Anderson, was on probation and, at the time of the evidentiary hearing, had not reported to his probation officer in five months.

The only two witnesses available for retrial were Carl Day, who saw Bell fleeing from the scene, and Richard Spraggins, who was with Blake after the incident. We note, as did the trial court, that the defense presented no rebuttal, and neither party offered any information as to the whereabouts of these witnesses.

Following the hearing, the court determined that in light of the lack of available witnesses, in particular the key eyewitness, Patrick Blake, the Commonwealth would be prejudiced in its efforts to retry Bell. The court, therefore, reinstated the order denying collateral relief. On appeal, Bell raises the following claims:

1. Whether the Commonwealth would be prejudiced in retrying appellant where it may use the admission of the prior testimony of any unavailable witness under the provisions of 42 Pa.C.S.A. § 5917, or the common law rule in Commonwealth v. Melson, 432 Pa.Super. 1, 637 A.2d 633 (1994), so as to permit the Commonwealth to present the identical evidence at the retrial as was presented at the original trial?

2. Whether the Commonwealth met its burden of proof to establish that appellant's delay in filing his PCRA caused prejudice in retrying appellant, where the Commonwealth could not establish that any witness became unavailable after the affirmance of the conviction on appeal and before the filing of the PCRA petition?

3. Whether the PCRA court impermissibly permitted the Commonwealth to establish prejudice on a standard of proof less than preponderance of the evidence, thus shifting the burden of proof to Appellant to prove that the Commonwealth was not prejudiced?

4. Whether appellant is denied due process of law under the United States and Pennsylvania Constitutions, where his constitutionally deficient conviction is permitted to be afforded on the basis of a statute, 42 Pa.C.S.A. § 9543(b)?

5. Whether the PCRA court erred in accepting hearsay testimony over objection to prove unavailability of the key Commonwealth witness?

6. Whether the PCRA court erred in denying the indigent appellant the right to obtain a detective to conduct a further investigation to provide rebuttal evidence to the Commonwealth's evidence?

On appeal from the denial of PCRA relief, this court must determine whether the post-conviction court's findings were supported by the record and whether the court's order is otherwise free of legal error. Commonwealth v. Blackwell, 436 Pa.Super. 294, 647 A.2d 915 (1994). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id.

We find each of Bell's claims meritless. In his first two issues, Bell claims that the PCRA court erred in its finding that the Commonwealth would be prejudiced in retrying Bell. Bell asserts that the recorded testimony from the original trial could be used on retrial. Bell claims that this vitiates any prejudice to the Commonwealth. To support his argument, Bell relies on Commonwealth v. Melson, 432 Pa.Super. 1, 637 A.2d 633 (1994) and 42 Pa.C.S.A. § 5917.

In Melson, a witness was found unavailable because he refused to testify at the defendant's retrial. The court held that since 42 Pa.C.S.A. § 5917 did not allow for admission of prior recorded testimony where a witness refused to testify, the testimony could be admitted under a common law exception to the hearsay rule. ¹ Pennsylvania common law allows admission of prior recorded testimony from a preliminary hearing provided that

(1) the witness responsible for that testimony is presently unavailable; (2) the defendant had counsel; and (3) the defendant had a full and fair opportunity to cross-examine the declarant during the earlier proceeding. Commonwealth v. McGrogan, 523 Pa. 614, 568 A.2d 924 (1990); Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986); Melson, supra; Commonwealth v. Carbaugh, 423 Pa.Super. 178, 620 A.2d 1169 (1993); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). As well, the issues in the prior proceeding and the purpose for which the testimony was there offered "must have been such that the present opponent had an adequate motive for testing on cross-examination, the credibility of the testimony now offered."

Commonwealth v. Smith, 436 Pa.Super. 277, 285-87, 647 A.2d 907, 911 (1994) (quoting Commonwealth v. Velasquez,...