Com. v. Carelli

• Decision Date: 15 August 1988
• Citation: 546 A.2d 1185,377 Pa.Super. 117
• Parties: COMMONWEALTH of Pennsylvania v. Ronald M. CARELLI, Appellant.
• Court: Pennsylvania Superior Court

Page 1185

546 A.2d 1185

377 Pa.Super. 117

COMMONWEALTH of Pennsylvania v. Ronald M. CARELLI, Appellant.

Superior Court of Pennsylvania.

Submitted June 22, 1987.

Filed Aug. 15, 1988.

William R. Miller, Washington, for appellant.

John C. Petit, Dist. Atty., Washington, for Com., appellee.

Before BROSKY, KELLY and WATKINS, JJ.

KELLY, Judge:

Appellant, Ronald M. Carelli, appeals from an order denying his petition for post-conviction relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. Appellant contends that prior counsel was ineffective in failing to seek suppression of all the evidence against him based upon an alleged illegal search and in failing to challenge the admissibility of certain statements alleged to be hearsay. We find no merit in the contentions, and accordingly affirm the order denying post-conviction relief.

FACTS AND PROCEDURAL HISTORY

At 8:30 p.m. on March 2, 1984, Mr. Gerald Shriver reported that his recently purchased, used Ford pickup truck had been At approximately 10:15 p.m. a report was transmitted to Officer Dean Casciola from the police control center that an anonymous caller reported following the stolen truck from the Washington Mall to a garage located at a residence in Hickory, Pennsylvania approximately one half hour (driving) from the Washington Mall. (N.T. 6/14/84 at 30; see also Affidavit of Probable Cause attached to the March 19, 1984 Arrest Warrant). Officer Casciola went to the address indicated to investigate; he discovered appellant in the garage with the stolen truck. Appellant was arrested and charged with theft, conspiracy and receiving stolen property.

stolen from the Washington County Mall sometime between 8:00 p.m. and 8:20 p.m. on March 2, 1984. Mr. Shriver gave a description to the police indicating that the stolen vehicle was a 1979 blue Ford, 150F, four wheel drive pickup with a white cap, fog lights, and a blue bug visor on the front. (N.T. 6/14/84 at 19, 23-24).

Appellant was tried, on June 14, 1984, before the Honorable Thomas D. Gladden, President Judge of the Washington County Court of Common Pleas, and a jury on a charge of receiving stolen property. At trial, appellant acknowledged that the stolen truck was in his garage and that he was in the garage when it was discovered by the police. His defense was that he had been helping his brother and sister-in-law move all day, he had returned home to get some tools from the garage only minutes before the police arrived, and, he had no idea that the truck in his garage had been stolen. He explained further that he often let others use his garage to work on their cars and when he arrived home on the evening in question his wife told him that his friend, Mr. Frank Mullaney, had left a vehicle in the garage and indicated that he would be back for it the next day. (N.T. 6/14/84 at 52-71). Significantly, appellant testified (contrary to Officer Casciola's testimony) that he had left the garage door open approximately two feet when he entered the garage and when he came out to speak to the police officer, the officer was able to see almost the whole truck. (N.T. 6/14/84 at 64, 69). The clear import of appellant's testimony was that he had nothing to hide and that he made no attempt to do so.

Appellant presented corroborative testimony from Mr. James Allen and his sister-in-law, Mrs. Kathleen Carelli. Mr. Allen testified that appellant permitted him, and others including Mr. Mullaney, to use appellant's tools and to work on their vehicles in appellant's garage. (N.T. 6/14/84 at 41-44). Mrs. Carelli testified that appellant had been helping her and appellant's brother Larry move and that appellant left at about 9:30 p.m. to go to his garage for some tools so that he could reassemble some beds. (N.T. 6/14/84 at 47-48). Appellant's wife did not testify at trial. Mr. Mullaney's whereabouts were alleged to be unknown. (N.T. 6/14/84 at 46, 66-68).

The jury found appellant guilty of receiving stolen property. In post-verdict motions, appellant contended: the evidence was insufficient to sustain the verdict; the prosecution improperly and prejudicially stated that appellant was operating a "chop shop;" and two jurors were unduly influenced by the jury foreman. Post-verdict motions were denied. Appellant was sentenced to a term of imprisonment in a county facility of ten to twenty months; this court affirmed judgment of sentence by Per Curiam Order and Memorandum. See Commonwealth v. Carelli, 353 Pa.Super. 642, 506 A.2d 1334 (1985) (Per Curiam; Brosky, and Watkins, JJ., join; Cavanaugh, J., concurring).

Subsequently, appellant filed a pro se PCHA petition, and an amended pro se PCHA petition. Counsel was appointed for appellant and an amended counselled PCHA petition was filed. The counselled PCHA petition was later amended.

On October 8, 1986, a motion to set a date for an evidentiary hearing was filed on behalf of appellant; on that same date, the trial court entered an order scheduling an evidentiary hearing on the petitions for December 10, 1986. However, on December 10, 1986, appellant through counsel declined to present any evidence in support of the petition, electing instead to submit his AND NOW, this 6 day of January, 1987, upon consideration of the record, the Briefs and Arguments of counsel we find that defendant was at all times represented by competent counsel during the pre-trial and trial stages of this litigation. The search by Officer Casciola was made in plain view and the failure to make objections to alleged hearsay statements is without merit as it relates to competency of counsel. Defendant's petition for Post Conviction Relief is denied.

case to the trial court based upon the record (which was stipulated to by the parties) and the arguments in the briefs submitted by the parties. The court noted on the record its receipt of appellant's brief and directed the Commonwealth to file a response brief within ten days. The court also indicated its intent to review the briefs, the record, and the applicable law, and then to render a decision. (N.T. 12/10/86 at 1-2). On January 6, 1987, the trial court entered the following order:

Timely notice of appeal was filed, and this case is now properly before this Court for disposition.

I.

Initially, we note that in PCHA proceedings, the trial court sits as finder of fact. It is, therefore, the province of the trial court as finder of fact to weigh the credibility of the witnesses and to resolve all conflicts in the evidence; it is the prerogative of a finder of fact to believe all, part, or none of the evidence presented. See Commonwealth v. Dickerson, 449 Pa. 70, 73-74, 295 A.2d 282, 284 (1972); Commonwealth v. Johnson, 355 Pa.Super. 123, 131-32, 512 A.2d 1242, 1246 (1986). On review, we are bound by findings of fact which have support in the record, but not by the trial court's conclusions of law. See Commonwealth v. Carrillo, 319 Pa.Super. 115, 124-25, 465 A.2d 1256, 1261 (1983); citing Commonwealth v. May, 485 Pa. 371, 402 A.2d 1008 (1979); cf. Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212-13 (1986) (review of findings of a suppression hearing).

Although appellant was granted an evidentiary hearing, he declined to present any witnesses, electing instead to submit the case to the trial court on the basis of the record and the briefs. Appellant contended, essentially, that prior counsel had been ineffective as a matter of law. Our review of some, but not all, of the claims raised in this case is substantially hindered by the failure of the trial court to comply with the dictate of Pa.R.Crim.P. 1506(5) which provides:

When a court grants a post-conviction hearing, it shall:

(5) Cause all evidence adduced at the hearing to be recorded, file a statement of record setting forth its findings of fact and conclusions of law;....

(Emphasis added). The order of January 6, 1987, contains conclusions of law but no findings of fact. Consequently, an order directing the trial court to file an opinion or memorandum setting forth the findings of fact upon which the January 6, 1987 order is based would ordinarily be appropriate. See Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979); Commonwealth v. Elliott, 319 Pa.Super. 521, 466 A.2d 666 (1983). It is not for this Court to review the record and substitute its assessment of the weight of the evidence and the credibility of the witnesses for that of the finder of fact below. A reviewing court is bound to honor the right and obligation of the finder of fact to believe all, part, or none of the evidence presented; and, is likewise constrained from speculating upon matters not in evidence. See Commonwealth v. Griscavage, 512 Pa. 540, 546, 517 A.2d 1256, 1259 (1986). However, for the reasons which follow we find remand unnecessary in the instant case.

II.

In order to prevail upon a claim of ineffective assistance of counsel, appellant has the burden to establish: 1) by act or omission counsel was arguably ineffective; 2) the act or omission challenged could not have had an objectively reasonable basis designed to effectuate appellant's interest; and 3) appellant was prejudiced by the act or omission in that but for the challenged When, as in this case, an assertion of ineffective assistance of counsel is based upon the failure to pursue a suppression motion, proof of the merit of the underlying suppression claim is necessary to establish the merit of the ineffective assistance of counsel claim. Kitrell v. Dakota, 373 Pa.Super. 66, ----, 540 A.2d 301, 305 (1988), citing Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In Kimmelman, the United States Supreme Court, per Justice Brennan, explained:

                act or omission there is a reasonable probability that the result of the trial would have been more favorable to appellant.   See Commonwealth v. Petras, 368 Pa.Super. 372, 374-78, 534 A.2d 483, 484-85 (1987) (collecting cases).  If

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