Com. v. Brady

• Decision Date: 15 November 1999
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Duane E. BRADY, Appellant.
• Court: Pennsylvania Superior Court

741 A.2d 758

COMMONWEALTH of Pennsylvania, Appellee v. Duane E. BRADY, Appellant.

Superior Court of Pennsylvania.

Submitted January 25, 1999.

Filed November 15, 1999.

Duane E. Brady, appellant, pro se.

Daniel W. Stern, Asst. Dist. Atty., Harrisburg, for the Com, appellee.

Before KELLY, MUSMANNO, and MONTEMURO¹, JJ.

KELLY, J.:

¶ 1 In this appeal, we must determine whether Appellant, Duane Brady, is entitled to relief pursuant to the Post Conviction Relief Act.² Specifically, we must decide whether Appellant is entitled to a new trial on the basis of trial/appellate counsel's ineffectiveness in failing to address issues related to the admission of a co-defendant's statement inculpating Appellant in the crimes charged. We hold that counsel rendered ineffective assistance when he permitted the statement inculpating Appellant to be admitted at trial without objection or request for a cautionary instruction. We further hold that the hearsay nature of the statement was inherently prejudicial and the prejudice was not cured when the declarant of the statement later testified. Accordingly, we reverse the order denying Appellant PCRA relief and remand the matter to the trial court for a new trial.

¶ 2 The relevant facts and procedural history of this case are as follows. In late October 1995, Appellant's co-defendant, Daniel Mutzabaugh, along with Daniel's cousin, Chris Mutzabaugh, Luther Holly, and several others, were drinking beer in a cabin in rural Perry County. Appellant, looking for Holly, arrived just as the beer supply was depleted. Daniel allegedly suggested to his cousin Chris that the two of them break into a nearby cabin, where Daniel knew there was more alcohol. Chris later testified that he thought Daniel was joking. Daniel then asked Appellant for a ride to a friend's house, and Appellant agreed. There was no testimony at trial indicating that Appellant knew Daniel intended to steal liquor. Shortly thereafter, as Appellant and Daniel were driving down a secluded road, Appellant's car had a flat tire. By one account, Appellant remained with the car while Daniel left, returning later with a case of beer and someone to tow the car. At trial, the Commonwealth successfully argued that together, Daniel and Appellant broke into a nearby cabin, stole beer and liquor, transported it in a stolen sleeping bag, had the flat tire on their way back to their cabin, and then procured a tow. In both accounts, Appellant and Daniel eventually returned to the cabin where the alcohol was consumed.

¶ 3 The tow operator confirmed that he had towed a vehicle late one night in October and that Daniel was the person who had procured his assistance. The tow operator could not, however, identify Daniel's companion and was unable to confirm the presence of liquor in the vehicle.

¶ 4 Based on an early November phone call from Daniel's cousin, Chris, Pennsylvania Police Trooper Rodney D. Anderson investigated the incident.³ He discovered that a cabin had indeed been robbed of beer and liquor, but that the door had already been repaired. Therefore, the only physical evidence remaining was a sleeping bag, in Chris' possession. Trooper Anderson did not know of the sleeping bag's existence until December 16, when he went to Chris' residence to serve him a subpoena to appear at the preliminary hearing. On that date, Chris turned the sleeping bag over to Trooper Anderson. Neither Chris nor Trooper Anderson testified that any active/knowing involvement in the burglary on the part of Appellant had been discussed in either their early November or mid-December conversations.

¶ 5 Meanwhile, Daniel was being held in a Dauphin County prison pending the preliminary hearing. On December 18, Trooper Anderson arrived at the prison to transport Daniel to the preliminary hearing. According to Trooper Anderson, he Mirandized⁴ Daniel during the half-hour trip and began to probe. During that transportation, Daniel allegedly verified Chris' account of the incident, confessed to his involvement, and implicated Appellant.

¶ 6 Appellant and Daniel were both charged with burglary, conspiracy to commit burglary, theft by unlawful taking, receiving stolen property, conspiracy to commit theft, and criminal mischief. Appellant and his co-defendant Daniel proceeded to a joint trial and were represented by separate counsel. At trial, Trooper Anderson testified for the Commonwealth regarding Daniel's alleged inculpatory statement.⁵ The statement was admitted as substantive evidence against both Daniel and Appellant, without objection, redaction or request for a limiting instruction.

¶ 7 Later, during the case for the defense, Daniel took the stand. He vigorously denied that he had ever made the statement to Trooper Anderson or verified his cousin's account of the incident. Daniel also rejected Appellant's alleged involvement in the criminal incident, testifying in Appellant's favor.

¶ 8 Following trial, the trial judge convicted Appellant of criminal mischief. The jury convicted Appellant of the remaining charges. On April 26, 1996 Appellant was sentenced for receiving stolen property, conspiracy, and theft, to a term of imprisonment of one to two years, and four to ten years' imprisonment for burglary. On May 6, 1996, Appellant filed a motion for reconsideration of sentence. By order dated the same day, the court vacated his sentence for conspiracy to commit burglary and affirmed the other judgments of sentence.

¶ 9 Appellant's court-appointed counsel represented him at trial and on direct appeal. On direct appeal, Appellant challenged the probable cause supporting his arrest, the sufficiency and weight of the evidence, and the calculation of his sentence. This Court affirmed Appellant's judgment of sentence on April 8, 1997. See Commonwealth v. Brady, 698 A.2d 661 (Pa.Super.1997).

¶ 10 The trial court extended Appellant's leave to continue in forma pauperis. Appellant proceeded pro se in this, his first PCRA petition, timely filed on August 20, 1997. In his petition, Appellant raised claims of ineffectiveness of counsel. Appellant specifically noted in his Motion for Post Conviction Collateral Relief that he did not want another lawyer appointed to represent him. Appellant's petition was subsequently amended, but ultimately dismissed without an evidentiary hearing. Appellant timely filed this appeal.

Appellant raises the following issues for our review.

I. WHETHER THE [TRIAL] COURT ERRED AND/OR ABUSED IT'S [SIC] DISCRETION WHEN IT DENIED APPELLANT'S P.C.R.A. PETITION WITHOUT AN EVIDENTIARY HEARING IN THE CONTEXT OF INEFFECTIVE ASSISTANCE OF COUNSEL?

II. WHETHER THE [TRIAL] COURT ERRED IN DENYING APPELLANT'S PETITION FOR RELIEF UNDER THE PENNSYLVANIA POST-CONVICTION RELIEF ACT WHERE, UNDER THE CIRCUMSTANCES OF THIS CASE, THE FAILURE OF TRIAL COUNSEL TO; (1) LIMIT THE USE OF CO-DEFENDANT DANIEL MUTZABAUGH'S STATEMENT THROUGH AVAILABLE PRE-TRIAL MOTIONS, (2) TO OBJECT TO THE OUT-OF-COURT CONFESSION OF CO-DEFENDANT THAT WAS USED AGAINST THE APPELLANT AS SUBSTANTIVE EVIDENCE, ON THE BASIS OF HEARSAY, (3) TO REQUEST A CAUTIONARY INSTRUCTION TO THE JURY WHEN THE OUT-OF-COURT CONFESSION BY CO-DEFENDANT WAS INTRODUCED AS SUBSTANTIVE EVIDENCE AGAINST APPELLANT, CONSTITUTING INEFFECTIVENESS OF COUNSEL UNDER THE SIX [SIC] AMENDMENT OF THE UNITED STATES CONSTITUTION AND PENNSYLVANIA CONSTITUTION AT ARTICLE 1 SECTION 9 WHICH SO UNDERMINED THE TRUTH-DETERMINING PROCESS THAT NO RELIABLE ADJUDICATION OF GUILT OR INNOCENSE [SIC] COULD HAVE TAKEN PLACE?

(Appellant's Brief at 3).

¶ 11 Preliminarily, we note that Pennsylvania law provides an indigent petitioner with court-appointed counsel on his first petition for post-conviction relief, regardless of the merits of the claims raised. Pa.R.Crim.P. 1504; Commonwealth v. Luckett, 700 A.2d 1014 (Pa.Super.1997); Commonwealth v. Lindsey, 455 Pa.Super. 228, 687 A.2d 1144 (1996); Commonwealth v. Peterson, 453 Pa.Super. 271, 683 A.2d 908 (1996). Pennsylvania law also expressly recognizes the right to proceed without the assistance of counsel. Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)) (holding that the right to proceed without counsel is guaranteed by the sixth amendment to the Federal Constitution when a valid waiver is made) and Commonwealth v. Rogers, 537 Pa. 581, 645 A.2d 223 (1994) (recognizing that a criminal defendant or appellant has the right to proceed pro se at trial and through appellate proceedings). See also Pennsylvania Rule of Criminal Procedure 318(a).

¶ 12 Nevertheless, mere execution of a waiver of counsel form, without more, is insufficient to establish a valid waiver. Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 202 A.2d 303 (1964); Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964). "When a waiver of counsel is sought at the post-conviction and appellate stages, an on-the-record determination should be made that the waiver is a knowing, intelligent, and voluntary one." Grazier, supra.

¶ 13 In the instant case, Appellant obtained permission to continue his in forma pauperis status for purposes of his PCRA petition. He specifically requested that no counsel be appointed for the purpose of filing his first PCRA petition. In a letter dated June 8, 1997, Appellant informed trial/appellate counsel of his intention to proceed pro se. A copy of this letter was sent to the judge presiding in this case. Although there is no on-the-record colloquy, Appellant has adequately demonstrated a valid waiver of counsel through his adamant statement against appointment of counsel through his PCRA petition, his correspondence to counsel and the court, and his subsequent pro se appeal. See Grazier, supra

; Rundle, supra. Thus, we will review his issues.

¶ 14 Our scope of review when examining a PCRA court's denial of relief is limited to determining whether the court's findings are supported...