Com. v. Howard

Decision Date08 August 1994
Citation538 Pa. 86,645 A.2d 1300
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Melvin HOWARD, Appellant.
CourtPennsylvania Supreme Court

Robert A. Graci, for Atty. Gen.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION OF THE COURT

CAPPY, Justice.

The Appellant, Melvin Howard, was convicted of first degree murder 1 and possession of an instrument of crime 2 in connection with the stabbing death of Clarence Woodlock and was sentenced to death. 3 This is an automatic direct appeal from that sentence. 4 For the reasons we discuss below we affirm the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County, Criminal Division.

In all cases where we affirm the judgment of sentence of death, this Court must conduct an independent review of the sufficiency of the evidence on the charge of murder of the first degree without regard to whether the Appellant had challenged his The facts of the incident resulting in the death of Clarence Woodlock as established at trial are as follows. Shortly after midnight on September 27, 1987, Appellant was involved in an altercation with two men, one of whom was the decedent, at the intersection of 52nd and Market Streets in Philadelphia. Appellant called out for help, and four men came to the scene and chased the decedent and the other man away. Shortly thereafter, the decedent returned with a piece of wood, which he swung at Appellant. Appellant then pulled out a knife. The decedent and the other man took off in different directions. Appellant, along with three or four other men, pursued the decedent, who threw his piece of wood at Appellant but missed. Appellant continued to chase the decedent until the decedent fell, and as he started to get up Appellant punched him and knocked him to the ground. Appellant began to stab the decedent repeatedly, at one point using both hands to plunge the knife into decedent's chest. Appellant then left the scene, fled to Georgia where his mother lived, and was eventually arrested there. The knife was not recovered.

conviction on that ground. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 [538 Pa. 91] (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh'g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). The test for determining sufficiency is whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). Based on our review, the Commonwealth clearly meets this test.

Appellant was tried before a jury. The Commonwealth's witnesses included an eyewitness who testified as to the events. Additionally, the investigating and arresting officers testified, as did the assistant medical examiner for the city and county of Philadelphia who testified that the decedent's body contained 16 wounds consistent with those caused by a knife. Appellant did not testify, and the only witness presented by the defense was trial counsel's assistant who testified that Appellant was right-handed.

The jury returned the guilty verdicts, and at the penalty phase determined that there was one aggravating circumstance 5 and no mitigating circumstances. Thus, the sentence of death was returned.

Through appellate counsel, Appellant asserts various issues of trial error and ineffective assistance of counsel before this court with respect to the verdicts of guilt. These issues were raised in post-trial motions, and all were found to be meritless.

I. Error of the Trial Court

First, Appellant argues that the trial court erred in permitting the Commonwealth to introduce evidence of a statement by Appellant at the time of arrest which incorporated "other crimes" evidence. The arresting officer testified that when Appellant was arrested in Georgia, Appellant asked the police what he was being arrested for. "For murder," he was told. Appellant then replied, "Which one?" Appellant alleges that this statement creates the inference that Appellant was referring to more than one murder that he had committed, that this was therefore evidence of prior crimes, and that such evidence is typically inadmissible absent a specific exception.

Appellant's argument is erroneous. Appellant's contention that this evidence referred to other murders committed by Appellant and that the jury would so interpret it that way is not a reasonable implication. In fact, it was only defense counsel that drew this conclusion in his closing argument, when he made a joke out of the idea that the Appellant may have committed so many murders that he had to inquire which among them he was being arrested for. The context Appellant also contends that the trial court erred when it ruled that Appellant could not offer evidence that he was right-handed--specifically, by signing his name for the jury to see--without being subject to cross-examination. Appellant argues that this ruling forced him to decline his name-writing demonstration and instead offer the testimony of counsel's assistant. Appellant fervently argues that such demonstration should not be subject to cross-examination. Regardless of the merit of that contention, we fail to see how Appellant could have been harmed by the court's ruling. Whether Appellant was right- or left-handed was of dubious relevance since according to the medical examiner who testified, handedness could not be definitively determined by knife wounds. Moreover, the testimony of the eyewitness indicated that Appellant used both hands while stabbing decedent. Finally, Appellant was in fact able to enter evidence as to his handedness; we cannot see how his demonstration would have been that much more probative than the assistant's testimony so that his being precluded from presenting it would rise to the level of error requiring a new trial. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) (error is harmless if evidence is so overwhelming and prejudicial effect of the error is so insignificant that it is clear beyond a reasonable doubt that the error is harmless).

in which this testimony was elicited would not create the inference that Appellant suggests. The response "Which one?" was an attempt by the Appellant to determine with whose murder he was being charged. The Commonwealth was clearly attempting to establish that Appellant had knowledge of the murder [538 Pa. 93] of Clarence Woodlock when he made this statement, and that an innocent person would not have such knowledge. Therefore, there is simply no prior crimes evidence here.

II. Ineffective Assistance of Counsel

Appellant raises several arguments alleging ineffective assistance of trial counsel. In order for Appellant to prevail on each claim of ineffective assistance of counsel, he must show (1) the underlying claim is of arguable merit; (2) the particular course of conduct of counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel's ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant first argues that his trial counsel was ineffective for not objecting to the introduction of Appellant's statement "Which one?" However, we note that trial counsel did seek an in limine ruling from the trial court to exclude these statements; that motion was denied. Moreover, as discussed above, Appellant had no basis to have these statements excluded. Trial counsel cannot be held to be ineffective for failing to take futile actions or to raise a meritless claim. Commonwealth v. Rashed, 496 Pa. 26, 436 A.2d 134 (1981); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknes, 491 Pa. 215, 420 A.2d 419 (1980).

Appellant next contends that trial counsel was ineffective when he failed to object, move for a mistrial or request a cautionary instruction following introduction of evidence of Appellant's post-arrest silence. During the testimony of the arresting officer, the following exchange occurred:

BY THE PROSECUTOR

Q: Now, did he say anything else to you about him being down there [in Georgia]?

A. No, sir.

Q. How about before he said, "Which one," did he say anything abut how long you had seen him down there?

A. The only oral statement he made to me were, you know, "Why you just arresting me now? You seen me before now."

Additionally, during the closing argument, the prosecutor stated:

Mr. Alva [Appellant's trial counsel] gets up here and says, the defendant says a lot of things. Well, who, me, what, where, when, how? I didn't do that. Is that what you heard the defendant said [sic] when the officer arrested him? Or what it real clear what he said? Which one? You're here, I got you, we have a murder warrant. Which one. You decide what that means, ladies and gentlemen.

Appellant's ineffectiveness argument must fail because there is no merit to the underlying claim. Here, the prosecutor is not remarking on the defendant's post-arrest silence. Rather, the evidence and argument presented concerned Appellant's post-arrest statements. See Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987). The context of the testimony elicited does not indicate that the prosecutor was attempting to create an inference that defendant's unresponsiveness at the time of the arrest meant he was guilty; rather, as noted above, the Commonwealth was attempting to establish that Appellant had knowledge of the murder of the decedent, and that an innocent person would not have such knowledge.

Appellant's third allegation of ineffective assistance of counsel relates to trial counsel's failure to request a cautionary instruction concerning a photograph of the Appellant....

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