Com. v. Blackwell

• Citation: 436 Pa.Super. 294,647 A.2d 915
• Parties: COMMONWEALTH of Pennsylvania v. Darryl BLACKWELL, Appellant.
• Decision Date: 12 September 1994
• Court: Superior Court of Pennsylvania

Page 915

647 A.2d 915

436 Pa.Super. 294

COMMONWEALTH of Pennsylvania v. Darryl BLACKWELL, Appellant.

Superior Court of Pennsylvania.

Submitted July 5, 1994.

Filed Sept. 12, 1994.

Thomas G. Wolpert, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

Before CAVANAUGH, DEL SOLE and BROSKY, JJ.

BROSKY, Judge.

Darryl Blackwell appeals from the March 5, 1993 order of the trial court denying his petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 et seq. The trial court order also granted PCRA counsel's motion to withdraw as counsel, and, informed appellant that he could proceed pro se or retain private counsel. On April 2, 1993 appellant filed a pro se notice of appeal and on March 9, 1994 present counsel entered his appearance on behalf of appellant; counsel filed an appellate brief on appellant's behalf.

Appellant and the victim, June Lane, who was his former girlfriend, lived in separate residences in West Philadelphia. ¹ On November 16, 1986 appellant lured Ms. Lane into his house on the false pretext that he was repaying a loan owed to her. Once appellant had Ms. Lane in his home he punched her, dragged her to the second floor, bound her with an electrical cord, taped her mouth shut, wrapped a tie around her neck and raped her. Appellant threatened to hurt Ms. Lane and members of her family if she told anyone about the crimes.

Ms. Lane returned to her grandmother's home in a hysterical state and told her grandmother that appellant had raped her. The grandmother called her son, who was the victim's uncle, and told him about the rape. He took the victim to a police station and then to the hospital.

Appellant was arrested and when the police searched his house they found the electrical cord, the tape and the tie. Appellant was charged with rape.

Appellant was released on bail on November 21, 1986. After his release he admitted to a friend, Robert Belk, that he had raped the victim. He also told Belk that he should have killed the victim and disposed of the physical evidence that had been subsequently seized by the police. N.T., 2/26/87, at 18.

The victim moved from her grandmother's home to her uncle's home. She appeared at the November 26, 1986 first listing of appellant's preliminary hearing but the case was continued pursuant to appellant's request. On December 7, 1986 the victim spent the night at her grandmother's house. The next morning she left to go to work. Appellant was sitting on his front porch, which was located two houses away from the grandmother's home. Appellant confronted the victim on the sidewalk and grabbed her arm. He ordered her not to testify against him. She ran toward her grandmother's porch and appellant followed her. Appellant produced a .22 caliber revolver and pointed it at the victim. N.T., 5/9/89, at 50. He shot the victim three times, in her head, her face and her hand. Appellant then fled into his home. The victim then staggered to her grandmother's porch and her grandmother helped her into the house.

Appellant barricaded himself in his house and police arrived. ² Over several hours police negotiators and a minister attempted to get appellant to surrender. Appellant was on a second floor landing and threw the .22 caliber revolver to the base of the staircase leading to the second floor. Police then entered the house and found appellant lying at the top of the staircase; police subsequently determined that appellant had apparently shot himself twice in his head. Upon discovering appellant an officer asked him if he was hurt. Appellant replied, "I f--ked up." N.T., 5/8/89, at 64. The police began to assist appellant and appellant stated, "How's the girl?" Id. at 65. An officer asked appellant to whom he was referring. Appellant replied, "The girl I shot." Id. Appellant was eventually charged with retaliation against a witness, aggravated assault, possessing an instrument of crime and related charges. ³

The victim was eventually discharged from the hospital. Because of the seizures resulting from the emergency brain surgery the doctors prescribed Dilantin in an attempt to control any possible future seizures. The victim began to have severe headaches and re-entered the hospital. The victim died on January 26, 1987. The medical examiner determined that the cause of death was fulminating hepatitis (with liver failure ⁴) caused by the gunshot wounds, the craniotomy (which is a surgical opening of the skull) performed upon her during emergency surgery immediately after the shooting, and, the Dilantin therapy; the manner of death was determined to be homicide. N.T., 5/9/89, at 52.

Appellant was charged with homicide. All of the charges (for the rape and for the subsequent shooting) were consolidated for trial. Appellant attempted to suppress the items seized in the search subsequent to the rape, the gun used in the shooting, and statements made after his arrest for the shooting. After a suppression hearing on May 8, 1989 the trial court suppressed appellant's statement to police regarding the shooting of the victim (in which appellant replied, "The girl I shot." N.T., 5/8/89, at 65), since appellant was not given his Miranda warnings before he made the statement. The trial court denied all other defense requests to suppress evidence.

Appellant then entered into a negotiated plea bargain. On May 9, 1989 the trial court conducted a lengthy and thorough guilty plea colloquy. N.T., 5/9/89, at 1-65. Appellant then pled guilty to first-degree murder, possession of an instrument of crime, retaliation against a witness and rape. Appellant also agreed to the sentence, which was determined pursuant to the negotiated plea agreement; he was sentenced to a mandatory life sentence for the first-degree murder, and consecutive sentences of ten-to-twenty years for the rape, three and one-half to seven years for retaliation against a witness and two and one-half to five years for possession of an instrument of crime. ⁵ During the plea colloquy appellant was told by the trial court that he was going to be bound by the answers that he gave and the statements that he made at the hearing; he was also told that he would not be allowed to subsequently contradict his answers and statements. N.T., 5/9/89, at 11. Appellant responded that he understood those points. Id. at 11-12.

Appellant did not seek to withdraw his guilty plea; he filed no motion for reconsideration of sentence. He filed no direct appeal. On September 18, 1989 he filed a pro se PCRA petition and counsel was appointed to represent him. Before court-appointed counsel could file an amended PCRA petition appellant moved to withdraw the petition without prejudice so that he could retain private counsel. The PCRA petition was withdrawn on March 12, 1992. ⁶ Appellant did not retain private counsel and filed another pro se PCRA petition on June 9, 1992. ⁷ The trial court appointed another attorney to represent appellant. After counsel reviewed the record and found all of appellant's issues to be without merit he filed a petition to withdraw as counsel, pursuant to Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). ⁸ The trial court dismissed appellant's PCRA petition and granted counsel's motion to withdraw. Appellant filed the instant appeal. Appellant's fifth attorney is now representing him in this appeal.

Appellant claims on appeal that,

I. The only basis of the plea bargain was the threat of the death penalty, which would not have been imposed, and if imposed, could not have withstood Pennsylvania Supreme Court review.

A. The statutory mens rea requirement for the only aggravating circumstance the prosecution could have presented is totally inconsistent with the facts as presented by the prosecution's own witnesses.

B. Case law decided by the Supreme Court of Pennsylvania available at the time of the plea demonstrates that the death penalty was not sustainable in this case.

II. The defendant should be permitted to withdraw his guilty plea because trial counsel had no rational strategy in counseling defendant to forego defenses of arguable merit and counseling a plea bargain that provided no benefit to the defendant.

A. The defendant had fact issues of arguable merit as to the cause of the victim's death and premeditation which were surrendered without a quid pro quo.

B. A plea colloquy, even if performed conscientiously, is not a substitute for constitutionally mandated effective assistance of counsel.

III. The sentencing scheme was an abuse of discretion not justified by any finding of aggravated circumstances and not justified by the one-sided plea bargain.

A. The protection against double jeopardy was violated when sentences for the homicide and retaliation failed to merge.

B. The trial court disregarded mitigating circumstances, unreasonably hindering the defendant's excellent chances for rehabilitation and possible pardon.

IV. The Finley letter and opinion of the lower court fail to address central issues as to ineffectiveness of counsel which vitiate the basis of the defendant's plea.

A. Both the opinion of Judge Papalini and the Finley letter assume, without stating reasons, that the only or central issue for ineffective assistance of counsel is whether first-degree homicide is sustainable on the facts.

B. The Finley letter is a superficial review of issues the defendant raised pro se, not a legal analysis of the claims the defendant had if properly presented.

C. The defendant's decision to plead guilty was made under mistakes of law so destructive to the exercise of basic rights that his plea cannot be deemed knowing and intelligent.

D. Defendant had a right to a trial attorney who would ensure that the verdict reached was the [Sic] either the product of adversarial testing, or who would obtain something of legal value for the defendant in the plea bargain.

V. Ineffective assistance of counsel at both the PCRA and trial...