Com. v. Chmiel

• Court: Pennsylvania Supreme Court
• Writing for the Court: SAYLOR, Justice.
• Citation: Com. v. Chmiel, 738 A.2d 406, 558 Pa. 478 (Pa. 1999)
• Decision Date: 19 August 1999
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. David CHMIEL, Appellant.

558 Pa. 478

738 A.2d 406

COMMONWEALTH of Pennsylvania, Appellee, v. David CHMIEL, Appellant.

Supreme Court of Pennsylvania.

Argued April 27, 1998.

Decided August 19, 1999.

Gerard E. Grealish, Scranton, for D. Chmiel.

Ronald T. Williamson, Norristown, for Com.

Robert A. Graci, Harrisburg, for Office of Atty. Gen.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

SAYLOR, Justice.

Among the numerous issues raised in this appeal is the following: Did the trial court err in allowing the Commonwealth to introduce into the record of Appellant David Chmiel's second trial portions of the testimony given at an ineffectiveness hearing by Thomas Kennedy, Esq. (now deceased), counsel for Chmiel at his first trial? We conclude that the admission of such testimony was error and therefore reverse.

I. Background

David Chmiel was charged with stabbing to death three elderly siblings, Angelina, Victor, and James Lunario, while robbing their home in Throop, Lackawanna County, in the early morning hours of September 21, 1983. In 1984, a jury convicted Chmiel of three counts of murder in the first degree and sentenced him to death. This Court reversed the convictions after finding that trial counsel (Attorney Kennedy) had been ineffective. Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Chmiel was retried in 1995. As before, he was convicted of three counts of first degree murder and sentenced to death. This direct appeal from that judgment of sentence followed.

The principal Commonwealth witness against David Chmiel at both the first and second trials was his brother, Martin Chmiel. According to Martin, David told him late in the summer of 1983 that he needed to obtain money quickly; he (Martin) told David that the Lunarios kept large sums of money in their home; and he and David then decided to break into the Lunarios' home in order to steal the money. While admitting that he participated in the planning of the break-in to the extent of fashioning ski masks for himself and David from the sleeves of an old sweater, Martin asserted that he subsequently changed his mind and had nothing further to do with the scheme. Martin testified that David confessed to him shortly after the murders that he had stabbed the Lunarios to death and stolen $5,300.00 from their home.

After the jury's verdict in the first trial, David Chmiel filed counseled post-trial motions as well as a pro se petition alleging that Attorney Kennedy had been ineffective for, inter alia, making no effort to locate alibi witnesses, discouraging him from taking the stand, and failing to request an accomplice instruction as to Martin Chmiel's testimony. The trial court appointed new counsel, stayed the post-trial motions, and held an evidentiary hearing (treated as a hearing pursuant to the then-effective Post Conviction Hearing Act, 42 Pa.C.S. §§ 9541-9551) on the ineffectiveness claims. Following the hearing, at which Attorney Kennedy testified, the trial court denied David Chmiel's post-trial motions and formally imposed the sentence of death.

On direct appeal, this Court determined that Attorney Kennedy's failure to request an accomplice instruction with regard to the testimony of Martin Chmiel constituted ineffective assistance that prejudiced the defendant. Accordingly, the judgment of sentence was reversed and the case remanded for a new trial.

Prior to the retrial, David Chmiel (hereinafter "Chmiel") filed an omnibus motion requesting, inter alia, that the trial court preclude the use at trial of the testimony given by Attorney Kennedy at the evidentiary hearing in 1988.¹ The basis for the motion was that such testimony had impermissibly disclosed confidential attorney-client communications. Opposing the motion, the Commonwealth argued that Attorney Kennedy's testimony should be admitted for impeachment purposes in the event that Chmiel decided to take the stand. The trial court denied Chmiel's motion to preclude use of the testimony.

Although he did not testify at his first trial, Chmiel chose to do so at his second. The crux of his testimony was that circumstances at the time of the killings strongly suggested to him that his brother Martin had committed the crime. Chmiel testified on direct examination that he had gone near the Lunarios' residence on only two occasions. The first occasion was in late June or early July of 1983, when he and Martin went there to "case the joint." The second occasion was early in September of that year, when he and Martin drove to the residence with the intent of burglarizing it; however, they abandoned the plan upon discovering that, contrary to their expectation, someone was at home.

Concerning his whereabouts on the night of the murders, Chmiel testified as follows: After having spent the day doing construction work on the home of Nancy and Tom Buffton, his sister and brother-in-law, Chmiel arrived home at about 4:30 p.m. Leaving there, he drove to the residence of Mike Cordaro, an electrical contractor to whom he owed money, in order to pay him. After paying Cordaro, Chmiel drove to North End Plumbing Supply to check prices, to a six-pack store to buy lottery tickets, and then to Betz's Bar, where he stayed until at least 11:00 p.m. From the bar he went to the Bufftons' house to check on tools that had been left there; to the home of a friend, Pat Battle, with whom he had a few beers; and to his brother Marty's house, where he learned from Marty's wife that Marty was not at home but was with Tom Buffton. After stopping at a donut shop and a minimarket, Chmiel went home. He went out once more to buy aspirin for his child. Then, he testified, he returned home to stay at 3:00 or 3:15 a.m.

As promised, the Commonwealth used Attorney Kennedy's testimony to cross-examine Chmiel concerning his whereabouts at the time of the murders. Because it is important to understand the nature of such testimony and the use that was made of it, we quote at length the pertinent portion of the cross-examination.

Chmiel maintained that he had not been in the vicinity of the Lunario residence when the murders were committed and that he had "never ... told anybody anything different...." The prosecutor then asked:

Q: Well, isn't it a fact, though, sir, for a period of five months starting with a conference with Mr. Kennedy on October the 5th that you maintained that you were on the scene at 1:00 o'clock in the morning and you tried to blame your brother because you said your brother was running from the scene?

A: Yes.

Chmiel's positive answer to the prosecutor's question was apparently a mis-statement on his part, because immediately thereafter he asserted that he had gone to the Lunario residence only on the two occasions mentioned earlier. Cross-examination continued as follows:

Q: Now tell me this, sir: Why for five months did you lie to Mr. Kennedy and say that you were on the scene of the crime at 1:00 o'clock in the morning on the 21st of September, that you saw Marty running out and you were going to blame Marty. And you said, Hey, Marty, and he got in the Toyota and drove away. Why did you lie to Mr. Kennedy and give that phony story?

A: I did not lie to Mr. Kennedy. I never told him that.

. . .

Q: At [the evidentiary hearing] did you hear Mr. Kennedy testify as follows.... He's talking about different versions that you gave him. Do you remember him saying that you gave him three different versions of what happened? Do you remember him saying that?

A: Yes, I remember him saying that.

Q: Do you remember him saying, "The first version [given by Chmiel] of what had happened ... on the night of September the 21st ... included an admission by him that he was at the scene of the murder not for the purpose of robbing or killing but was there to case the joint. At that time the notes indicate that he saw a shadow, that he perceived it to be, at least he thought it to be his brother Marty, and that he called out, `Marty', that the shadow ran down an alley of the Lunario house which he was casing, got into ... a car that Dave said he thought belonged to Tom Buffton. And [he gave] a description, I think it was a Toyota, a brown Toyota owned by Thomas Buffton." ... Now do you recall Mr. Kennedy testifying that way under oath?

A: Yes, sir, I do.

Q: He said that, didn't he?

A: Yes, sir, he said that at a hearing that I was questioning his ineffectiveness.

Q: So he lied is what you're saying?

A: I'm saying — I can't say he's lying. I'm saying I did not tell him that.

Q: In other words he just made this up?

A: Well, I don't know what he did. It's not what I told him.

Q: It's not what you told him; he just made it up. Isn't it a fact, sir, that he testified that you said to him ... he was ineffective because you wanted to testify to certain things and he said, he advised you not to go along with it because he did not want to be a party to perjury since you had given him three different stories. Do you remember him testifying that way?

A: He did say that at the ineffectiveness hearing, yes.

. . .

Q: He said that he didn't want you to get up and lie and he would not be a part of it?

A: He said that was one of the reasons he did not put me on the stand, that's right.

. . .

Q: And didn't he say, also, that you maintained that position for five months, isn't that what he said?

A: He may have said that; that's probably what he said. I don't recall if he said five months, but he did say there was another version given later or something like that.

Q: There were two other versions given?

A: Yes, I think he said three.

Q: Three. As a matter of fact the version ... that you testified to yesterday is Version No. 2?

A: No, that's version [sic] from the very beginning; that's version No. 1.

Q: According to Mr. Kennedy's sworn testimony, what you had given him is Version No. 2?

. . .

A: Yes. That was at a hearing where I was questioning his effectiveness and his professionalism, and that's

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