Com. v. Corley

• Citation: 816 A.2d 1109
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Conrad CORLEY, Appellant.
• Decision Date: 27 January 2003
• Court: Pennsylvania Superior Court

816 A.2d 1109

COMMONWEALTH of Pennsylvania, Appellee, v. Conrad CORLEY, Appellant.

Superior Court of Pennsylvania.

Submitted February 4, 2002.

Filed January 27, 2003.

Michael R. Seward, Sunbury, for appellant.

Anthony J. Rosini, Assistant District Attorney, Sunbury, for Com., appellee.

Before: LALLY-GREEN, BENDER and KELLY, JJ.

BENDER, J.

¶ 1 Conrad Corley (Appellant) appeals from the judgment of sentence entered following convictions for aggravated indecent assault and indecent assault. Appellant claims that the verdict was against the weight of the evidence and that trial counsel rendered ineffective assistance. For the following reasons, we reverse.

¶ 2 Appellant was charged with rape, aggravated indecent assault, indecent assault, and sexual assault. Following a trial by jury, Appellant was found guilty of aggravated indecent assault and indecent assault. On January 6, 1998, the court sentenced Appellant to thirty-nine months to seven years' imprisonment. Appellant, through newly appointed counsel, filed a notice of appeal. However, counsel failed to file a brief and the appeal was dismissed. Thereafter, Appellant filed a petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, requesting, inter alia, that the court grant a new trial or restore his appeal rights nunc pro tunc. The court held a hearing on February 7, 2001, at which Appellant and his trial counsel testified. During the hearing, Appellant's counsel questioned trial counsel regarding the issues that form the basis of Appellant's ineffective assistance of counsel claims in this appeal. Subsequently, the court denied Appellant's request for a new trial, but granted his request to restore his appeal rights nunc pro tunc.

¶ 3 Appellant, represented by Attorney Seward, then filed an appeal. Thereafter, Attorney Seward filed a petition with this Court seeking to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See also Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981)

. We

denied the petition and remanded the case with directions that Attorney Seward file either a proper Anders brief or an advocate's brief. On remand, the trial court appointed new counsel, John D. Broda, Esquire, who has filed an advocate's brief on Appellant's behalf, in which there are four questions for our review:

1. Whether the trial court erred in not finding that the verdict was against the weight of the evidence and denying Appellant a new trial?

2. Whether the trial court erred in not finding that the Commonwealth's evidence was so inconsistent, contradictory, indherently [sic] unreliable that the verdict cannot stand and the Appellant is entitled to be discharged?

3. Whether trial counsel was ineffective for failing to request that a "corrupt source" charge be given with respect to Paul Foulds a co-defendant?

4. Whether trial counsel was ineffective for failing to cross-examine a co-defendant regarding whether he expected to be treated more leniently with respect to the charges filed against him because he testified for the Commonwealth?

Brief for Appellant at 4.

¶ 4 In Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (1994), our Supreme Court stated that "[a]n allegation that the verdict is against the `weight' of the evidence is a matter to be resolved by the trial court." 648 A.2d at 1190 (quoting Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167, 1170 n. 3 (1993)). A trial court may order a new trial only when the "verdict is so contrary to the evidence as to shock one's sense of justice." Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719, 728 (1989). See also Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728, 733 n. 3 (1987)

. "Moreover, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence. When reviewing the trial court's determination, we give the gravest deference to the findings of the court below. We review the court's actions for an abuse of discretion." Commonwealth v. Foster, 764 A.2d 1076, 1083 (Pa.Super.2000).

To determine whether a trial court's decision constituted a palpable abuse of discretion, an appellate court must examine the record and assess the weight of the evidence; not however, as the trial judge, to determine whether the preponderance of the evidence opposes the verdict, but rather to determine whether the court below in so finding plainly exceeded the limits of judicial discretion and invaded the exclusive domain of the jury. Where the record adequately supports the trial court, the trial court has acted within the limits of its judicial discretion.

Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177, 1190 (1994) (quotation marks omitted).

¶ 5 At trial, the witnesses testified to the following facts. On the evening of January 26, 1996, the victim, Ann DeWalt, and her friend Kristy Engle, went to a bar named Tiffany's Lounge in Shamokin. N.T., 7/23/97, at 34. While there, they both had several drinks. Id. at 36-37. At some point in the evening, DeWalt and Engle became acquainted with Appellant and Paul Foulds, who were also both in the bar. Id. at 38-39. While the four were seated together Engle fell off of Foulds' lap and the bartender then ordered DeWalt and Engle to leave. Id. at 43.

¶ 6 Appellant and Foulds then encountered DeWalt and Engle in the parking lot outside the bar as the two were leaving. Id. at 44-45. According to DeWalt's testimony, Foulds opined that DeWalt and Engle were too drunk to drive home and that he should drive them. Id. at 45. However, Foulds testified that the bartender asked him and Appellant to help DeWalt and Engle out of the bar, and when they were outside, DeWalt asked them if they "wanted to go for a ride and party a little bit." Id. at 227.

¶ 7 The contradictory testimony continued as to who was driving the van. DeWalt and Engle testified that Engle, who had driven herself and DeWalt to the bar earlier in the evening in her van, gave the keys of her van to Foulds. Id. at 45, 122. They also testified that when the four of them entered the van, Foulds sat in the driver's seat, Engle sat next to him in the front passenger seat, and Appellant and DeWalt sat behind them. Id. However, Foulds testified that Appellant first drove the van when they left Tiffany's Lounge, and that Foulds drove the van later after they stopped and switched seats. Id. at 228-30.

¶ 8 Although DeWalt and Engle testified that their intention was to go to a friend's home only three blocks away, Foulds did not take them there. Id. at 46, 123. DeWalt testified that shortly after they began driving, Appellant "attacked" her and began taking her clothes off; ultimately, he had forced sexual intercourse with her. Id. at 47, 49-51. DeWalt testified that during the involuntary intercourse, all she should do was cry and shake. Id. at 53. Eventually, she vomited. Id. at 53.

¶ 9 Engle testified that while they were driving around, she heard DeWalt crying, and when she turned around, she saw Appellant on top of DeWalt and both of them were partially disrobed. Id. at 124-25. Foulds testified that several times he heard DeWalt say "no" and that each time, Engle would turn around and staring yelling at Appellant "to get off" of DeWalt. Id. at 231. This occurred at least three times. Id. at 231-34. Foulds further testified that, "[Appellant] and the girl were apparently having intercourse or something, you know, I have no idea if there was penetration or not." Id. at 234. Foulds also testified that on more than one occasion he told Appellant to "get off" of DeWalt. Id. at 231, 237.

¶ 10 While the alleged events in the backseat were transpiring, according to Engle, Foulds then "hopped on top of her" and "she told him to get off." Id. at 126. Foulds testified that during this time, Engle "removed his pants," and began "giving [him] a hand job," and that while she did this, she took off her own pants and began masturbating. Id. at 234-35. Engle testified that at some point, she took over the driving, and "dropped [Appellant and Foulds] off" at Tiffany's Lounge. Id. at 127. DeWalt did not report the incident to the police until four days later. Id. at 68,

¶ 11 As stated above, the jury convicted Appellant of aggravated indecent assault and indecent assault. The trial court found that based on its "thorough review of the trial testimony" that there was "no reason to disturb the jury's decision." Trial Court Opinion, 4/9/98, at 6. The facts of this case are disturbing and somewhat bizarre. And although Appellant directs us to inconsistencies in the testimony such as how much alcohol DeWalt and Engle drank at that bar, who was driving the van at various points in the evening, and the particular arm that Appellant used to disrobe DeWalt, we conclude that notwithstanding these inconsistencies in the testimony, the record supports the trial court's decision not to grant a new trial and, accordingly, there was no abuse of discretion.

¶ 12 In the second question presented for our review, Appellant only reiterates the arguments advanced in his first argument, and claims that "he should be discharged because the evidence offered by the Commonwealth in being so unreliable did not support the verdict." Brief for Appellant at 13. For the reasons discussed above, we find this claim to be without merit.

¶ 13 In the third and fourth questions presented for our review, Appellant claims that trial counsel rendered ineffective assistance.¹ When reviewing an ineffective assistance of counsel (IAC) claim, we presume that counsel is effective and place the burden on an appellant to prove otherwise. See Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75, 81 (1990)

. In order for an appellant's IAC claim to succeed, he or she must establish: "(1) that the underlying claim is of arguable merit; (2) that counsel's course of...