Com. v. Chimenti

• Decision Date: 20 April 1987
• Citation: 524 A.2d 913,362 Pa.Super. 350
• Parties: COMMONWEALTH of Pennsylvania v. Salvatore CHIMENTI, Appellant. 01977 Phila. 1984
• Court: Pennsylvania Superior Court

Page 913

524 A.2d 913

362 Pa.Super. 350

COMMONWEALTH of Pennsylvania v. Salvatore CHIMENTI, Appellant.

01977 Phila. 1984

Superior Court of Pennsylvania.

Argued Nov. 18, 1986.

Filed April 20, 1987.

Paul L. Shechtman, Philadelphia, for appellant.

Marianne E. Cox, Deputy Dist. Atty., Philadelphia, for Com., appellee.

Before OLSZEWSKI, TAMILIA and KELLY, JJ.

OLSZEWSKI, Judge:

Appellant appeals from the judgment of sentence imposed after a jury found him guilty of first-degree murder and possession of an instrument of crime. The trial judge sentenced appellant to the mandatory term of life imprisonment on the first-degree murder charge and to a concurrent term of 2 1/2 to 5 years' imprisonment on the possession of an instrument of crime charge. In this appeal, appellant argues that: (1) he was denied effective assistance of counsel because his trial counsel failed to call two witnesses and chose to present testimony that counsel knew was perjurious; (2) he was denied a fair trial because of the prosecutor's misconduct; and (3) the evidence was not legally sufficient to support a first-degree murder conviction. ¹ For the reasons stated below, we affirm the judgment of sentence.

I. FACTS

The trial court aptly stated the relevant facts in this case as follows:

On May 10, 1982 the body of Andrew Clifton Tucker was found lying in the street in front of 2747 S. Sheridan Street, Philadelphia. He had been shot 7 (seven) or 8 (eight) times.1 Only four of these bullets were recovered. All of the recovered bullets were .380 caliber. The ballistics expert, Edward Jachimowicz, testified these had been fired from the same gun. They were extraordinary aluminum jacketed bullets which explode more expansively upon impact.

Officer Andrew Harley was the first to respond to the 11:28 P.M. radio call which reported a shooting at 2747 S. Sheridan Street, the residence of the defendant's mother, Mrs. Emma Chimenti. Upon observing the victim lying in the street, the officer attempted to take his pulse but could find none. He saw a snub-nose .38 caliber gun lying 4 (four) to (six) inches from the deceased's left leg. It was later adduced that the victim had been right handed. There was a little blood on the frame of the gun. There also was blood in the street and on the car which was parked between the victim's body and the curb.

Testimony at trial established that the shooting stemmed from an on-going dispute between the defendant, Salvatore Chimenti, and the victim, Andrew Tucker. They had had an argument at the defendant's mother's house three or four days before the shooting. Following this, Chimenti, who had been renting a house from Robert Harris, a friend of Tucker's as well, asked Harris to arrange a meeting between them.

On the night of the shooting Harris and Walter Schiffler went to a Phillies game. They left the game early and went to the Brothers 2 Lounge at 15th and Ritner Streets. There they met the victim, Tucker, who had been drinking, and whose behaviour reflected this fact.2 Tucker asked Harris to give him a ride to the defendant's mother's house.

The three men left the Brothers 2 Lounge. They went to the victim's apartment so that Tucker could drop off his baseball equipment and pick up some marijuana. They did not smoke it. Harris entered the apartment with Tucker while Schiffler waited in the car. From there the three men proceeded to 2747 S. Sheridan Street.

Upon their arrival, Harris recognized the defendant's brother, Mario, and his friend, Mike Cavanaugh, who were walking out of the house. Mario told Harris that the defendant was not home. Tucker got out of the car, and walked off saying that he was going to a friend's house on the street. Harris stayed to talk to Mario and Cavanaugh. Tucker said he would be at the end of the street and that they should come down and honk for him when they had finished their talk.

Tucker went to 2707 S. Sheridan Street, a house occupied by Theresa Ann Marie Bardon. She was in bed watching TV. Steve Cavalieri, Bardon's boyfriend responded to Tucker's knock. Tucker asked to borrow Bardon's van.3 Cavalieri decided to drive Tucker so he told Tucker they would meet at the van. Tucker left. Moments later Bardon and Cavalieri heard shots.

According to Harris' trial testimony, while Tucker was at Bardon's, Harris finished his conversation with Mario and Cavanaugh. He was preparing to leave when another car pulled up behind his. The defendant and Linda Romeo emerged. The driver, a man, never got out.

The defendant asked Harris what he was doing there. Harris explained that he had brought Tucker for the meeting the defendant had requested.

The defendant told Harris that he would "blow (Tucker) away," if the victim started any trouble in front of the defendant's mother's house. Harris had noticed that the defendant had a gun. He also heard the defendant ask his brother if he had his gun. Tucker did not have a gun.4

While Harris and the defendant were talking, Tucker left Bardon's house. When he saw them Tucker started to walk toward them, yelling. Harris went to Tucker to attempt to calm him down. He thought Tucker was going to fight with the defendant.

After Harris calmed Tucker, they proceeded to 2747 S. Sheridan Street. The defendant was standing on the steps. Mario and Cavanaugh were on the porch. The defendant accused Tucker of doing things he didn't like. The defendant pointed his finger in Tucker's face. Tucker slapped it away. The defendant drew his gun and shot. Harris ran. He jumped in his car, and Schiffler, who had never gotten out, drove off.

When the defendant took the stand he admitted that he had emptied the entire clip of his gun almost instantaneously. Tucker, he said, never fired a shot. The evidence showed that the defendant had continued to fire at Tucker even as he attempted to run. Bullets entered the front, back, and left side of the deceased.

The defendant's gun was never recovered. The defendant stated that as he ran from the scene of the shooting he dropped his Walther PPKS, a semi-automatic .380 caliber gun, in a vacant lot. He had retrieved this gun earlier that evening, from a floor safe in a rental property he owned because he knew the victim was looking for him.

Subsequent police investigation revealed that there were spent bullet casings on the steps and on the porch of 2747 S. Sheridan Street. The casings found on the porch were .25 caliber. There was one .25 caliber casing on the sidewalk. The ballistics expert testified that these were fired from a semi-automatic pistol which usually ejects shells over the right shoulder of the shooter.

The defendant ran from his mother's house to his Aunt Betty's and Uncle Frank's. He stayed there for a couple of hours trying to calm down. The defendant's uncle suggested that Joel Moldovsky be contacted for legal assistance. The defendant tried to reach Mr. Moldovsky that evening, but did not succeed until the following day. The defendant retained Moldovsky three days later, May 13, 1982.

Mr. Moldovsky called Homicide Headquarters to determine whether the defendant was wanted. He made several calls between May 13th and May 27th or 28th when he learned that a warrant had been issued for the defendant's arrest. The defendant then voluntarily turned himself over to police custody in Mr. Moldovsky's office. From there Chimenti was taken to the Police Administration Building where he was charged with this crime.

(Trial court opinion at 4-9) (footnote omitted).

II. EFFECTIVE ASSISTANCE OF COUNSEL

Appellant's first contention on appeal is that he was denied the effective assistance of counsel. Appellant argues that his trial counsel failed to call two potential witnesses and suborned perjured testimony. The standard for analyzing ineffectiveness-of-counsel claims consists of a two-pronged test. The reviewing court must first determine whether the issue underlying a defendant's ineffectiveness claim is of arguable merit and, if so, the court must then determine whether the course chosen by counsel had some reasonable basis in promoting defendant's interests. See Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985), allocatur granted, 510 Pa. 244, 507 A.2d 368 (1986). Additionally, our Supreme Court has recently stated that implicit in this two-pronged test is the requirement that the defendant demonstrate that he was prejudiced by his attorney's alleged ineffective assistance. See Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986). For the reasons stated below, we find that the issues underlying appellant's claims of ineffectiveness are meritless.

Specifically, appellant argues that his trial counsel was ineffective because:

He "added" another eyewitness, Gregory Spain, whose race, he believed, would appeal to the jurors. He instructed witnesses to testify that Harris, not Mario Chimenti, was in possession of the .25 caliber gun, so that the attack on appellant would seem even more fearsome. He coached witnesses to testify that Harris was on the porch of the Chimenti house, where the spent .25 caliber cartridges were recovered. And he chose not to call Frank Cioffi and Marie Convery, despite their favorable testimony, because each would have said that Harris was not on the porch at the time of the shooting.

(Brief for appellant at 30). First, in reference to appellant's claim that trial counsel was ineffective in failing to call two witnesses, this Court has stated: "the failure to call potential witnesses will not be equated with a conclusion of ineffectiveness absent some positive demonstration that their testimony would have been helpful to the defense." Commonwealth v. Wallace, 347 Pa.Super. 248, 252, 500 A.2d 816, 818 (1985). We find that the testimony of the two potential witnesses would not have been helpful to the defense.

During the trial, appellant contended that the shooting was done in self-defense. Appellant testified that he borrowed $30,000 from Robert...