Com. v. Hill

• Decision Date: 14 October 1988
• Citation: 378 Pa.Super. 562,549 A.2d 199
• Parties: COMMONWEALTH of Pennsylvania v. Edward D. HILL, Appellant.
• Court: Pennsylvania Superior Court

Page 199

549 A.2d 199

378 Pa.Super. 562

COMMONWEALTH of Pennsylvania v. Edward D. HILL, Appellant.

Superior Court of Pennsylvania.

Submitted Aug. 29, 1988.

Filed Oct. 14, 1988.

Mitchell S. Strutin, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before OLSZEWSKI, KELLY and HESTER, JJ.

OLSZEWSKI, Judge:

This is an appeal from an order denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA). On appeal, appellant claims that the PCHA court erred in denying appellant's petition without a hearing and asserts that his initial PCHA counsel, who filed a "no merit" letter, was ineffective for failing to raise the ineffectiveness of all prior counsel for failing to: (1) challenge the trial court's permitting the Commonwealth to present evidence concerning appellant's filing of an alibi notice; (2) challenge the trial court's denial of appellant's motion to suppress; (3) challenge the trial court's precluding appellant from impeaching a Commonwealth witness with preliminary hearing testimony; (4) challenge the trial court's permitting the Commonwealth to present hearsay testimony; (5) allege prosecutorial misconduct; (6) request a jury instruction concerning Commonwealth witnesses' prior inconsistent testimony; and (7) raise the trial court's consideration of appellant's prior guilty plea in sentencing appellant. For reasons discussed below, we remand for an evidentiary hearing. The defendant was arrested on or about September 14, 1982, and charged with burglary and related offenses.... On September 15, 1983, defendant plead guilty before Judge Guarino to the charge of burglary. He was sentenced to a period of imprisonment of not less than three to no more than eight years. On October 13, 1983, the defendant was permitted to withdraw his guilty plea, and new counsel was appointed to represent him....

On October 16, 1985, trial began before the Honorable Angelo Guarino and a jury. The jury returned a verdict of guilty as to the charges of criminal trespass, burglary and theft. Once again, counsel was permitted to withdraw, and new counsel was appointed to represent the defendant. On April 23, 1986, post-verdict motions were argued and denied. On May 12, 1986, the defendant was sentenced on the charge of burglary to a period of not less than six to no more than twenty years. The remaining charges merged for the purposes of sentencing. The defendant filed a timely motion to reconsider sentence which was heard and denied on May 30, 1986.

On December 1, 1986, the judgment of sentence was affirmed by the Superior Court in a per curiam and unpublished memorandum. (No. 1514 PHL 1986).

On December 30, 1986, the defendant filed a pro se petition for relief under the Post Conviction Hearing Act. New counsel was appointed to represent him in this matter. On September 24, 1987, P.C.H.A. counsel notified this Court, through a "no merit" letter, that he was unable to amend the defendant's petition, and that he found the issues raised in the defendant's pro se petition to be frivolous. This Court then undertook its own independent and careful review of the record and applicable law. On October 23, 1987, this Court found the defendant's issues raised in his pro se petition to be frivolous and discovered no other issues of arguable merit. Accordingly, this Court entered an Order dismissing the defendant's Petition for Relief. The instant appeal has followed the denial of relief.

Opinion at 2-4.

Appellant then filed an appeal with this Court. Initial PCHA counsel was permitted to withdraw and new PCHA counsel was appointed for purposes of this appeal.

First, appellant claims that the PCHA court erred in dismissing appellant's PCHA petition without a hearing. In his petition, appellant asserted that prior counsel was ineffective for failing to investigate and prepare a credible Rule 1100 argument, and for failing to articulate the substance of an alibi witness's testimony. We find, however, that the PCHA court's determination is supported by evidence of record and is otherwise free of legal error. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981). Therefore, we adopt the PCHA court's thorough examination and disposition of these contentions.

Appellant has cloaked his remaining claims in the ineffectiveness of initial PCHA counsel. Because this is the first time that the ineffectiveness of his first PCHA counsel could be raised, there has been no evidentiary hearing below to determine if there was a reasonable basis for counsel's actions. In this situation, we are required to determine whether that claims have arguable merit before we will remand to the PCHA court for an evidentiary hearing as to the basis for counsel's actions. See Commonwealth v. Shablin, 362 Pa.Super. 289, 524 A.2d 511 (1987). "When a claim has arguable merit, and there has been no evidentiary hearing below to determine if there was reasonable basis for counsel's actions, then this Court will remand for an evidentiary hearing." Shablin, supra, at 292, 524 A.2d at 512, citing Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985). Because we find appellant's final claim to be of arguable merit, we must remand for an evidentiary hearing. In the interest of judicial economy, however, we will first dispose of appellant's other seven contentions.

First, appellant claims that PCHA counsel was ineffective for failing to assert prior counsels' failure to challenge the trial court's permitting the Commonwealth to present evidence concerning appellant's filing of an alibi notice. Specifically, appellant claims that his testimony at trial confirmed that he "abandoned" his alibi defense and, therefore, it was improper for the Commonwealth to present testimony in rebuttal to establish that an alibi notice was filed. Pa.R.Crim.P. 305C(1)(g) provides that:

... if the defendant has filed notice and testifies concerning his presence at the time of the offense at a place or time different from that specified in the notice, the defendant may be cross-examined concerning such notice.

Instantly, appellant's claim that his testimony established an "abandonment" of the alibi defense is insufficient to preclude impeachment as to the lodging of an alibi notice. Rather, appellant must have formally withdrawn the notice of alibi defense prior to trial. See Commonwealth v. Alicea, 498 Pa. 575, 449 A.2d 1381 (1982). The presentation of evidence to contradict appellant's testimony is a risk he assumed when he took the stand. See Commonwealth v. Bey, 294 Pa.Super. 229, 439 A.2d 1175 (1982).

Moreover, the fact that the Commonwealth presented rebuttal testimony, rather than cross-examining appellant, to impeach appellant's testimony is of no consequence. It is well settled that "[e]vidence is admissible in rebuttal to contradict that offered by a defendant or his witnesses...." Commonwealth v. Mangini, 478 Pa. 147, 161, 386 A.2d 482, 489 (1978), quoting Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975) (citations omitted); Commonwealth v. Koch, 446 Pa. 469, 478, 288 A.2d 791, 795 (1972). Appellant's claim lacks merit.

Appellant also asserts that all previous counsel was ineffective for failing to challenge the denial of appellant's motion to suppress an identification made subsequent to appellant's allegedly illegal arrest. We find that the arresting officer had probable cause to arrest appellant, and therefore, the suppression issue lacks arguable merit.

Testimony elicited at the suppression hearing reveals that an employee at Rentex Corporation reported a break-in and described the perpetrator as a black male wearing a tee shirt, jeans, and a blue hat. Transcript at 19. The officer observed appellant walking two to three blocks from Rentex ten minutes after conversing with the employee. Transcript at 20-21. Because appellant fit the given description, transcript at 25, the officer stopped appellant, searched him, and found a red knife, a pair of scissors, and a small screwdriver in his pockets. The officer took appellant to the scene of the crime where he was identified by the complainant.

This Court's recent decision in Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (1987), is instructive in resolving appellant's contention:

Initially we note that our function as an appellate court reviewing a denial of a motion to suppress is to determine:

[W]hether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Reddix, 355 Pa.Superior Ct. 514, 518, 513 A.2d 1041, 1043 (1986), quoting Commonwealth v. W.P., 302 Pa.Superior Ct. 66, 69, 448 A.2d 97, 98 (1982). Moreover, when the evidence viewed in this manner supports the factual findings of the suppression court, we can reverse only if there is an error in the legal conclusion drawn from those factual findings. Commonwealth v. Reddix, supra.

Probable cause exists if the facts and circumstances within the knowledge of the police at the time of the arrest, and of which they have reasonably trustworthy information, are sufficient to justify a man of reasonable caution in the belief that a suspect has committed a crime.

Commonwealth v. Verdekal, 351 Pa.Superior Ct. 412, 506 A.2d 415 (1986). It is only the probability of criminal activity, and not the certainty of such activity, that is the standard of probable cause. Commonwealth v. Monroe, 356 Pa.Superior Ct. 109, 514 A.2d 167 (1986).

Id. 361 Pa.Super. at 530, 522 A.2d 1157.

Applying this law to the facts of the present case, we find that the trial court properly held that probable cause existed to support the stop and arrest. Within...