Com. v. Flood

• Decision Date: 08 July 1993
• Citation: 426 Pa.Super. 555,627 A.2d 1193
• Parties: COMMONWEALTH of Pennsylvania v. Richard FLOOD, Appellant.
• Court: Pennsylvania Superior Court

Page 1193

627 A.2d 1193

426 Pa.Super. 555

COMMONWEALTH of Pennsylvania v.Richard FLOOD, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 5, 1993.

Filed July 8, 1993.

Samuel C. Stretton, West Chester, for appellant.

Marilyn F. Murray, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, BECK and KELLY, JJ.

KELLY, Judge.

Appellant, Richard Flood, appeals from the judgment of sentence reinstated on January 10, 1991 following the trial court's denial of his motion to withdraw his December 7, 1990 guilty plea to first degree murder ¹ and possession of an instrument of crime.²Appellant contends that the trial court erred in denying his motion to withdraw his plea.We hold that appellant's contention is without merit and, therefore, affirm.

The relevant facts and procedural history may be summarized as follows.Appellant was charged with first degree murder and possession of an instrument of crime in connection with the shooting death of sixteen-year-old Jose Perez which occurred on the evening of March 15, 1989.Prior to the shooting, a group of about ten males crossed the street and one of them poured beer on the car of Luis Centrone as he was driving at 9th and Lycoming Streets in Philadelphia, Pennsylvania, on his way to visit a friend in the area.Centrone remained in his car and drove on to Delhi Street, where he told a friend about the incident.They obtained baseball bats and recruited friends to return with them to comb the area, looking for the person who poured the beer.As they were leaving the area of the incident in two cars, Jose Perez followed them into the area of 9th and Pike Streets driving an all-terrain vehicle.Centrone and his friends heard gunshots and kept going without realizing that Perez had been shot.Later, Centrone and his friends discovered bullet holes in both of their cars.

Police found Perez at Delhi and Pike Streets at about 7:30 p.m. with a bullet hole in his lower back.Perez died at Temple University Hospital at 2:10 a.m., March 16, 1989, of a gunshot wound which severed a major artery.

Two members of the local town watch heard the shots and observed two men running, then stopping, then pushing something into their pockets.One of the men wore a distinctive red and black jacket.The police were informed of these observations.Shortly after arriving in the area, police saw appellant, emerging from an alley, wearing a distinctive red and black jacket, with what appeared to be a gun in his hand.Upon further police investigation, appellant was discovered kneeling between two parked cars, sweating and wearing a distinctive jacket which matched the description given police by the town watch members.A pat down revealed no weapon.Appellant denied coming from the alley.At a point very close ³ to where appellant was apprehended, the police discovered a gun which later proved to be the weapon used to kill Perez.The two town watch members identified appellant's jacket as identical to the jacket worn by the person they had witnessed running from the scene of the shooting.

The matter was tried before a death qualified jury, as the Commonwealth was seeking the death penalty.The trial extended from November 30, 1990 to December 6, 1990.Appellant testified on his own behalf that he had been playing basketball earlier in the evening of the fatal shooting and was coming from a friend's house located at 9th and Pike Streets.According to his testimony, appellant claimed that he was on his way home when he heard gunfire and saw someone running out of an alley, whereupon appellant went into the alley and picked up a discarded gun which he intended to sell because he was unemployed.When appellant saw the police, he dropped the gun, according to his testimony, because he was on bail in another criminal matter.

At the conclusion of defense counsel's closing argument, the Commonwealth moved to reopen the trial because the prosecution had acquired additional information which would rebut appellant's alibi.The Commonwealth offered a facsimile of a statement obtained by military personnel from Gregory A. Brunson, Jr.In his affidavit, Brunson stated that he had purchased a gun for appellant at appellant's behest.Brunson and appellant are cousins.The purchased gun was the weapon that killed Jose Perez.

Appellant and defense counsel then met to discuss the potential impact of this new evidence and the terms of a plea bargain as well.The Commonwealth agreed to refrain from seeking the death penalty if appellant would plead guilty to the charges.On December 7, 1990, appellant entered a guilty plea and submitted to written and oral colloquies after which the trial court accepted his plea and immediately sentenced appellant to life imprisonment for the murder charge plus a concurrent one to two years for the possession of an instrument of crime charge.

On December 12, 1990, appellant moved to withdraw his negotiated guilty plea at which point the trial court vacated the sentence pending disposition of appellant's petition.On January 10, 1990, appellant petitioned the court for appointment of new counsel.Following a hearing on that date, the trial court denied appellant's motion to withdraw his plea and re-imposed sentence.The trial court permitted trial counsel to withdraw representation.New counsel was appointed for the purposes of this timely appeal.

Appellant raises the following issues for our review:

1.DID THE HONORABLE JOHN J. POSERINA, JR. ERR IN OPENING

THE TRIAL RECORD AFTER THE CLOSING SPEECH OF TRIAL COUNSEL ON THE BASIS OF ALLOWING THE PROSECUTION TO PRESENT ADDITIONAL EVIDENCE AND WAS TRIAL COUNSEL INEFFECTIVE FOR NOT POINTING OUT THE ADDITIONAL EVIDENCE WAS CONTAINED IN A STATEMENT, DATED NOVEMBER 6, 1990, WHICH SHOULD HAVE BEEN KNOWN WELL IN ADVANCE OF THE TRIAL AND FOR NOT INVESTIGATING THE ACCURACY OF THE CONTENTS AND WAS MR. FLOOD'S SUBSEQUENT PLEA THE RESULT OF COERCION AND NOT VOLUNTARILY ENTERED?

2.DID THE HONORABLE JOHN J. POSERINA, JR. ERR IN NOT ALLOWING MR. FLOOD TO WITHDRAW HIS GUILTY PLEA AND HAVE INDEPENDENT COUNSEL AT THE HEARING, SINCE HIS TRIAL COUNSEL WAS INEFFECTIVE FOR NOT NOTING THE NEW EVIDENCE HAD A DATE PRIOR TO TRIAL, FOR NOT INVESTIGATING THE NEW EVIDENCE, AND FOR COUNSELING MR. FLOOD TO ENTER HIS PLEA WITHOUT PROPER INVESTIGATION?

3.DOES THIS COURT LACK JURISDICTION SINCE THE HONORABLE JOHN P. POSERINA, JR. FAILED TO RESENTENCE MR. FLOOD?

Appellant's Briefat 3.

As a threshold matter, appellant questions this Court's jurisdiction to hear his appeal because, according to appellant, the trial court failed to resentence him after denying his motion to withdraw his guilty plea.We disagree.

Rule 301 of the Pennsylvania Rules of Appellate Procedure states that no order of a court shall be appealable until it is entered upon the appropriate docket and set forth on a separate document.Pa.R.App.P. 301(a), (b).The separate document requirement, however, is a waivable defect where the trial court clearly intends its opinion to represent the court's final decision in the case and the appellee does not object to the taking of the appeal in the absence of a separate judgment.Mitchum v. Atlantic Richfield Co., 364 Pa.Super. 583, 586, 528 A.2d 662, 663(1987);Brandschain v. Lieberman, 320 Pa.Super. 10, 11 n. 1, 466 A.2d 1035, 1036 n. 1(1983);Parents Against Abuse In Schools v. The Williamsport Area School District, 140 Pa.Cmwlth. 559, 567, 594 A.2d 796, 800(1991).

Instantly, there are docket entries verifying the reimposition of appellant's sentence.Moreover, the charge sheets accompanying the January 10, 1991 proceeding, which are included in the quarter sessions file, state that the sentences imposed on December 7, 1990 and vacated on December 12, 1990 were reimposed by the court.Additionally, the trial court opinion emphasizes the reimposition of sentence as its final decision in the case.Trial Court Opinionat 5.Thus, appellant's jurisdiction argument is wholly without merit.⁴

Appellant asserts that the trial court erred in denying his petition to withdraw his guilty plea after sentencing.Appellant contends that his guilty plea was involuntary due to trial court error and the ineffectiveness of his trial counsel.Specifically, appellant alleges that the trial court erred in allowing the prosecution to reopen its case to offer rebuttal testimony in the form of an incriminating affidavit submitted by appellant's cousin.Moreover, appellant proffers that his trial counsel was ineffective for failing to object to the admissibility of the affidavit and failing to request a continuance to investigate the accuracy of this new evidence.Accordingly, appellant concludes, his guilty plea was involuntarily induced and the trial court should have permitted him to withdraw it.We disagree.

In general, a guilty plea is a waiver of treasured rights, and to be valid, the plea must be knowing, intelligent and voluntary.Pa.R.Crim.P. 319;Commonwealth v. Sauter, 389 Pa.Super. 484, 567 A.2d 707(1989), appeal denied, 525 Pa. 598, 575 A.2d 564(1990).Moreover,

Pursuant to Pa.R.Crim.P. 319(a), a trial judge "shall not accept [a guilty plea] unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered.Such inquiry shall appear on the record."Regarding the entry of a guilty plea, it has been said:

Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understandingly tendered.See: Pa.R.Crim.P. 319 and comment thereon.The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understandingly tendered.A guilty plea colloquy must include inquiry as to whether (1)the defendant understood the nature of the charge to which he is pleading...