Com. v. Buksa

Decision Date07 March 1995
Citation655 A.2d 576,440 Pa.Super. 305
PartiesCOMMONWEALTH of Pennsylvania v. Stephen BUKSA, Jr., Appellant.
CourtPennsylvania Superior Court

Theodore J. Krol, Asst. Public Defender, Hollidaysburg, for appellant.

Christian A. Fisanick, Asst. Dist. Atty., Barnesboro, for Com.


WIEAND, Judge:

Stephen Buksa, Jr. was tried by jury and was found guilty of making terroristic threats, recklessly endangering another person and two counts of aggravated assault. Post-trial motions were filed, after which Buksa retained new counsel, who filed supplemental post-trial motions claiming ineffective assistance by trial counsel. Following an evidentiary hearing, the trial court denied post-trial relief. Buksa was sentenced to serve concurrent terms of imprisonment for not less than six (6) years nor more than twelve (12) years on the first count of aggravated assault and not less than one (1) year nor more than five (5) years for making terroristic threats. 1 On direct appeal from the judgment of sentence, 2 Buksa argues that (1) the trial court erred by allowing testimony that he told his alleged victim that he had done "time"; (2) the trial court erred by refusing to allow the defense to explore the potential motive or bias of the victim by cross-examining him about his being on probation as a result of having been convicted of a drug offense; (3) trial counsel provided constitutionally ineffective assistance by failing to request that the jury be charged on the defense of justification/self-defense; and (4) trial counsel were ineffective for failing to explore additional avenues of defense.

The evidence which led to appellant's convictions was summarized in the post-trial opinion of the trial court in the following manner:

On December 30, 1992, at approximately 1:00 a.m., the victim, David Pejack, left Sebastian's Tavern in Johnstown and began walking toward The Depot Lounge in the West End. As the victim was walking on Franklin Street, he was approached by a vehicle driven by the Defendant. The victim entered the Defendant's vehicle. The two men made one stop at Charlotte's Webb Bar on Ash Street in Johnstown. The victim entered the bar and returned to the Defendant's vehicle with two cans of beer. It is at this point that the victim's version and the Defendant's version of what happened diverge.

The victim testified at trial that the Defendant stopped his vehicle and offered him a ride to wherever he was going. After stopping for beer, the victim told the Defendant he wanted to go to Benshoff Hill. On the way there, Defendant said he had to take a p[iss] and headed off the main road onto a dark, bumpy road in a wooded area.

The victim testified that the Defendant stopped the car and got out for approximately 30-60 seconds. The Defendant then re-entered the vehicle, put his arm around the victim's neck, held a knife to the victim's throat, and said "I did eight years in Western, now pull them pants down."

The victim stated that he pulled his pants and underwear down to his upper thigh area and the Defendant then touched his genitals. At this point the victim opened the passenger side door and fell to the ground outside.

A scuffle took place outside of the car between the two men. The victim stated that he stuck his right thumb in the Defendant's eye to block the knife which the Defendant was aiming at his head. Regardless, the knife cut the victim's head twice.

The victim testified that the Defendant then pulled away, closed the knife, and gave him a rag with snow on it to press against his stab wound. The Defendant stated he would not hurt the victim. Reluctantly, the victim got back in the Defendant's car and was driven by the Defendant to the emergency room at Lee Hospital.

At the time of trial, the Defendant's version of what happened was different than the victim's version. The Defendant took the stand in his own behalf and testified that when he saw the victim on Franklin Street, the victim motioned for him to stop his car. When the Defendant stopped, the victim asked the Defendant if he knew whether there was anyplace open to buy beer. The Defendant testified that he offered the victim a ride. The Defendant drove to Charlotte's Webb Bar and waited in the car while the victim went inside to buy beer. After stopping for beer, the Defendant said he would drive around until the victim finished his beer and then he would drop the victim off in the eighth ward.

The Defendant testified that they had a problem with the cassette player in his car as they headed up Dishong Mountain. As a result of the fog and poor visibility, the Defendant testified that he had to pull over and stop the vehicle in order to get the tape out of the cassette player. The Defendant further stated that as he was leaning toward the cassette player in the middle of the vehicle, he looked over at the victim and noticed that he was holding a knife. The Defendant testified that the victim demanded his money, at which point the Defendant reached in his wallet and handed the victim all the money he had, totalling eleven dollars. The Defendant said the victim got furious due to the small amount of money given to him and kept demanding more money from the Defendant. According to the Defendant, the victim then moved toward him with the knife so the Defendant grabbed the victim's right hand which was holding the knife. At this point, the Defendant said the victim started to back toward the passenger side door. The Defendant testified that he followed the victim over the console and passenger side seat and continued following him the whole way out of the passenger side door because he couldn't take the chance of letting go of the knife.

Once outside of the car, the Defendant stated that he slipped and fell on his right shoulder. The Defendant testified that the victim fell to the ground as well and dropped the knife. The Defendant said he was able to recover the knife. It was the Defendant's testimony at trial that the victim then stuck his thumb in the Defendant's eye. Consequently, the Defendant said he raised his hands in the air and accidentally cut the victim because he was holding the knife in one hand.

The Defendant stated that he was then able to subdue the situation as he had the victim on the ground on his back. At this point the Defendant testified that he was no longer in fear of being injured so he threw the knife aside. The Defendant stated he got the victim a rag to apply to his wound and drove the victim straight to the hospital.

The jury chose to believe the victim's version of the events that took place on December 30, 1992, finding the Defendant guilty beyond a reasonable doubt of terroristic threats, recklessly endangering another person, and two counts of aggravated assault.

Trial Court Opinion at pp. 3-7.

Appellant contends that the trial court erred by allowing the victim to testify that, during the assault, appellant said, "I did eight years in Western, now pull them pants down." It is argued that this testimony impermissibly referred to a prior criminal record. We disagree. This testimony was admissible because it was about a statement made by the appellant to threaten and intimidate his victim. Evidence of distinct crimes is admissible in "situations where defendant's prior criminal history [was] used by him to threaten or intimidate the victim." Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 840 (1989). See also: Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). 3

Prior to trial, the Commonwealth had filed a motion in limine to prevent the defense from showing that the alleged victim was on probation for a drug offense. At the conclusion of a pre-trial hearing on the motion, the trial court ruled as follows:

As to the request of the defendant to be able to bring out that Mr. Pejack is on probation now and was on probation at that time therefore it would tend to in some way cause him to fabricate a statement, I'm going to deny that because the defendant was on probation at the same time. And I'm not going to allow it in for either one.

N.T. May 7, 1993, at p. 5. Appellant argues on appeal that this was error. Because the Commonwealth's witness was on probation, he argues, the jury was entitled to know that he had a motive for giving testimony favorable to the Commonwealth and adverse to the defendant. There is merit in this argument.

"The scope and limits of cross-examination are largely within the discretion of the trial court and its actions pertaining thereto will not be reversed in the absence of a clear abuse of its discretion or error of law." Commonwealth v. Buehl, 510 Pa. 363, 388, 508 A.2d 1167, 1179 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988). See also: Commonwealth v. Wilson, 538 Pa. 485, 505, 649 A.2d 435, 445 (1994); Commonwealth v. Snoke, 525 Pa. 295, 305, 580 A.2d 295, 300 (1990). Nevertheless, "[c]riminal defendants have a constitutional right to confront witnesses against them, which includes the right to cross-examine. Cross-examination may be employed to test a witness' story, to impeach credibility, and to establish the witness' motive for testifying." Commonwealth v. Robinson, 507 Pa. 522, 526, 491 A.2d 107, 109 (1985), citing Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). It is well established "that a witness may be cross-examined as to any matter tending to show the interest or bias of that witness." Commonwealth v. Nolen, 535 Pa. 77, 83, 634 A.2d 192, 195 (1993) (footnote omitted). See also: Commonwealth v. Butler, 529 Pa. 7, 14, 601 A.2d 268, 271 (1991); Commonwealth v. Williams, 524 Pa. 218, 228, 570 A.2d 75, 80 (1990); Commonwealth v. Coades, 454 Pa. 448, 452-453, 311 A.2d 896, 898 (1973). "It is particularly important that, where the determination of a...

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