Com. v. Hlatky

• Decision Date: 25 May 1993
• Parties: COMMONWEALTH of Pennsylvania v. Michael HLATKY, Appellant.
• Court: Pennsylvania Superior Court

Page 575

626 A.2d 575

426 Pa.Super. 66

COMMONWEALTH of Pennsylvania v. Michael HLATKY, Appellant.

Superior Court of Pennsylvania.

Argued March 9, 1993.

Filed May 25, 1993.

Dwight L. Danser, Easton, for appellant.

Victoria Coyle, Asst. Dist. Atty., Bethlehem, for Com., appellee.

Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.

JOHNSON, Judge:

Michael Hlatky appeals from the judgment of sentence entered following his conviction by a jury on charges of aggravated assault, recklessly endangering another person, and false reports to police. We affirm.

On September 22, 1989, Officer Sean Stuber arrived at the residence of Michael and Augusta Hlatky, in response to a call for an ambulance to assist an injured child. Upon arrival at the Hlatky residence, the officer was greeted by Augusta Hlatky who showed him where four year old Angela Lane was lying unconscious, and without spontaneous respirations. Augusta Hlatky informed the officer that Angela had fallen from a tree, thereby sustaining her injuries. The officer immediately administered cardio-pulmonary resuscitation to the child. While administering emergency treatment, Officer Stuber noted that there were multiple bruises on the child's face, head and other areas of her body. He also noticed burn marks on the child's hand and foot. Emergency personnel arrived on the scene a short while later and Angela was taken to the hospital for further treatment.

Officer Stuber, along with Chief Harry Brown, then proceeded to question the adults on the scene, Michael and Augusta Hlatky and their sister-in-law, Melody Hlatky who was the aunt and temporary custodian of Angela. These individuals were questioned together and each one indicated that Angela had fallen from a tree, had entered the residence mumbling, "I fell, I fell," gave a loud scream and became unconscious.

On September 25, 1989, three days after Angela had sustained her injuries, Augusta, Michael, and Melody Hlatky arrived at the police station at 2:35 a.m. to speak with Chief Brown about Angela. After being given Miranda warnings, Michael, Augusta, and Melody Hlatky gave statements to the police. Following statements in which they admitted inflicting previous injuries upon Angela unrelated to the present incident, both Melody and Augusta Hlatky were arrested and charged with attempted homicide, aggravated assault and other charges. Michael Hlatky was also arrested, based on Melody Hlatky's statement which implicated him as the perpetrator of the abuse upon Angela during the incident in question.

Michael Hlatky has maintained that he was "play wrestling" with Angela when she fell toward him, hitting her head on a chair. He stated that the child then bounced backward striking her head on the floor at which time she stopped breathing. Melody Hlatky, however, testified to a different version of the events leading to Angela's injuries. Melody testified that Michael: tripped Angela with his foot several times, causing her to fall to the floor; struck the child on the back five or six times; picked her up by the back of her shirt, raised her to shoulder height and dropped her, causing her to hit the floor face first. Melody further testified that when Angela got up, Michael tripped her once again causing her to hit a chair with her face and fall backward onto the floor. The child then turned over, screamed, and fell into unconsciousness.

Expert testimony by Angela's first treating physician, Dr. Michael Rhodes, established that Angela suffered brain damage due to oxygen deprivation. Testimony by a forensic pathologist established that Angela's injuries were the result of severe trauma to the brain and were inconsistent with a play type of injury. Angela suffered permanent brain damage and remained in a coma at the time of trial.

Following a jury trial on charges of attempted homicide, aggravated assault, recklessly endangering another person, and false reports to law enforcement officers, Hlatky was found not guilty of attempted homicide and guilty of all other charges. Post-trial motions were denied. Hlatky was then sentenced to a term of imprisonment of 75 months to 20 years on the aggravated assault conviction and a 1-2 year consecutive term of imprisonment on the false reports to law enforcement officers conviction. Following the denial of his Motion for the Reconsideration of Sentence, Hlatky appeals to this Court.

Hlatky presents six issues for our review, asking whether:

1. the trial court unduly interfered with Hlatky's selection of defense counsel;

2. the verdict is against the weight of the evidence, due to the conflicting evidence presented during the Commonwealth's case;

3. the evidence is insufficient to support the conviction of aggravated assault;

4. the evidence is insufficient to support the conviction on the charge of giving false reports to law enforcement authorities;

5. the trial court erred in permitting the Commonwealth to question Augusta Hlatky concerning the circumstances surrounding her separation from Michael Hlatky; and

6. the sentence imposed was excessive and harsh constituting a manifest abuse of discretion on the part of the trial court.

First, Hlatky contends that the trial court unduly interfered with his selection of counsel because the court denied Hlatky's request to have defense counsel for his wife sit and assist his defense counsel during trial. The trial court ruled that there was an inherent conflict of interest between Michael and Augusta Hlatky since Augusta had pled guilty to aggravated assault upon the same child, who was the alleged victim of Michael Hlatky's assault. At the time of Hlatky's trial, Augusta Hlatky had yet to be sentenced and her guilty plea was still subject to withdrawal.

The right to counsel of choice, while not absolute, is guarded by the sixth amendment of the United States Constitution. Commonwealth v. Coffey, 415 Pa.Super. 131, 608 A.2d 560 (1992). When a defendant's selection of counsel, under the particular facts and circumstances of a case, places the fairness and integrity of the defendant's trial in jeopardy, the defendant's right to counsel of choice may justifiably be denied. Commonwealth v. Cassidy, 390 Pa.Super. 359, 368, 568 A.2d 693, 697 (1989), appeal denied, 525 Pa. 641, 581 A.2d 567 (1990). However, a presumption must first be recognized in favor of the defendant's counsel of choice; to overcome the presumption, there must be a demonstration of an actual conflict or a showing of a serious potential for conflict. Id. at 369, 568 A.2d at 698.

In the present case, the trial court did not interfere with Hlatky's choice of his primary defense counsel but, rather, refused to allow counsel for Hlatky's wife to sit and assist Hlatky's chosen counsel. The trial court articulated the reasoning behind its refusal to permit counsel for Hlatky's wife to assist his primary defense counsel THE COURT: ... I am ruling that you are in direct conflict with your wife. Your interests and your wife's interests are directly in conflict here. What your wife is subject to by way of jeopardy from sentence in regard to the plea of nolo contedere [sic] may depend upon her testimony in this case possibly against you.

Whether she will testify for or against you, I don't know. But we are not going to permit anyone to be involved in your defense who might have a higher obligation to your wife at the risk of your later claiming, even though you would now waive it, that your counsel may have been ineffective because he acted in part or in any way upon advice of your wife's counsel.

N.T., March 2, 1992, at 97-98. The trial court further found that Hlatky's primary defense counsel was competent and adequately prepared to fully defend Hlatky throughout the trial and Hlatky would suffer no prejudice from the court's refusal to allow counsel for Hlatky's wife to assist primary defense counsel.

While Hlatky frames this issue in terms of the trial court's interference with his right to choose his own counsel, Hlatky cites to no authority, and we find none, under which a defendant has a right to have a co-defendant's counsel of choice present for his defense in addition to his own selected counsel. Additionally, Hlatky alleges no prejudice suffered from the trial court's ruling. In light of the conflict of interest, or at least the serious potential for a conflict of interest, presented by the divergent interests of Michael and Augusta Hlatky and their respective counsel in this case, we are unable to find error in the trial court's ruling on this issue.

Second, Hlatky contends the verdict was against the weight of the evidence due to the conflicting evidence presented by the Commonwealth. We find no merit in this contention.

When assessing whether a verdict is against the weight of the evidence our scope of review is quite narrow. Commonwealth v. Rochon, 398 Pa.Super. 494, 581 A.2d 239 (1990). In order to hold that a verdict was against the weight of the evidence, it must be clear from the record that the verdict shocks this Court's sense of justice. Commonwealth v. Allen, 394 Pa.Super. 127, 575 A.2d 131 (1990), appeal denied, 526 Pa. 627, 584 A.2d 311 (1990). Where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part or none of the evidence presented. Commonwealth v. Earnest, 386 Pa.Super. 461, 563 A.2d 158 (1989). The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court and we will not disturb that decision absent an abuse of discretion. Commonwealth v. Pirela, 398 Pa.Super. 76, 580 A.2d 848 (1990), appeal denied, 527 Pa. 672, 594 A.2d 658 (1991).

We recognize that a verdict of guilt may never be based on surmise and conjecture. Commonwealth v. Smith, 502 Pa. 600, 467 A.2d 1120 (1983). However, the mere existence of a conflict in the evidence does...