Com. v. Ingram

• Decision Date: 22 May 1991
• Citation: 404 Pa.Super. 560,591 A.2d 734
• Parties: COMMONWEALTH of Pennsylvania v. Kenneth INGRAM, Appellant.
• Court: Pennsylvania Superior Court

Page 734

591 A.2d 734

404 Pa.Super. 560

COMMONWEALTH of Pennsylvania v. Kenneth INGRAM, Appellant.

Superior Court of Pennsylvania.

Submitted March 20, 1991.

Filed May 22, 1991.

Kalvin Kahn, Philadelphia, for appellant.

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

Before CIRILLO, OLSZEWSKI and CERCONE, JJ.

OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence rendered in the Court of Common Pleas of Philadelphia County, following a jury trial wherein appellant was found guilty of possessing an instrument of crime, aggravated assault, and recklessly endangering another person. ¹ Appellant alleges eleven instances of error by the trial court and sixteen claims of ineffective assistance of trial counsel. The facts, as stated by the trial court, are as follows:

This case involves open gunfire into a nightclub injuring an employee, John Anderson. Mr. Anderson was employed as the doorman at the Boyle's Pacific Tavern located at 2222 Pacific Street in the City of Philadelphia. On August 1, 1987, at approximately 12:00 midnight Mr. Anderson was required to fulfill his duties as the "bouncer" by turning away a group of approximately four men, one of which was the defendant, for not meeting the club's appropriate dress code. Mr. Anderson testified that the "gentlemen" protested by beginning a "tussle" that ended in a fight. (N.T. 12/13/88, p. 27). Approximately five to ten minutes after the fight had dissipated, Mr. Anderson heard a shot, the glass of the window shattered and he was hit in the arm. Mr. Anderson testified that the shot originated from a parking lot angled across the street from the club. (N.T. 12/13/88, p. 28). Mr. Anderson identified the defendant as a regular at the club, and stated that the defendant was present on August 1, 1987. However, Mr. Anderson was unable to identify the defendant as the gunman. (N.T. 12/13/88, p. 59).

(Trial court opinion at 20.)

Several police officers testified concerning appellant's identification and apprehension. Officer Murphy, an officer at the scene, testified that on the night in question, he observed a male walking toward the parking lot with what appeared to be a rifle or a shotgun. (N.T. 12/13/88, p. 71.) The officer testified that he witnessed the male make a "pump" action, which appeared to be loading the gun. The male then disappeared behind a garbage dumpster, at which time a shotgun fire was heard. (N.T. 12/13/88, p. 73.) The officer then testified that he observed the male running toward him and recognized the male as appellant. Officer Murphy was able to recognize appellant because of his routine patrol of the area over a four-year period. Additionally, the officer testified that he had once been involved in transporting appellant to the hospital from his mother's house. (N.T. 12/13/88, pp. 89-90.) The officer followed appellant through a fence, but was unsuccessful in apprehending him. (N.T. 12/13/88, p. 74-75.)

Officer Andrew Smith testified that he searched the area and recovered a used shotgun shell near the garbage dumpster, as well as a shotgun containing two shells. The shotgun was in two separate pieces under weeds and debris near a hole in the fence where appellant had escaped. (N.T. 12/14/88, pp. 4-12.)

Officer Thomas Ryan was the arresting officer and testified that he received a warrant for appellant's arrest on August 1, 1987. He testified that he was unsuccessful in finding appellant until February 12 1988, when he observed appellant walking in a Philadelphia neighborhood. (N.T. 12/14/88, p. 26.)

Appellant first alleges that the trial court erred in failing to grant his petition to dismiss pursuant to Pa.R.Crim.P. 1100. Rule 1100 was amended on December 31, 1987. Under the former version of Rule 1100, a defendant was required to be brought to trial within 180 days from the date on which the complaint is filed. The amended version increases this time period to 365 days. The record indicates that the complaint was filed against appellant on August 1, 1987; therefore, the original 180-day period for commencement of trial ended on January 28, 1988. Appellant was apprehended on February 12, 1988. Because the original 180-day period allowing for commencement of trial had not yet expired when Rule 1100 was amended, the amended version of Rule 1100 applies to the case sub judice. See Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989). Therefore, the Commonwealth had 365 days to bring appellant to trial from the time the complaint was filed on August 1, 1987, excluding any period of time allowable by Rule 1100(c).

Rule 1100(c)(1) excludes the period of time between the filing of the written complaint and the defendant's arrest from calculation of the trial commencement period, provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence. Appellant argues that the Commonwealth failed to exercise due diligence in attempting to apprehend him. We disagree. In determining whether the police acted with due diligence, a balancing process must be employed where the court, using a common sense approach, examines the activities of the police and balances this against the interest of the accused in receiving a fair trial. Commonwealth v. Cruz, 362 Pa.Super. 282, 524 A.2d 507, 509 (1987), citing, Commonwealth v. Branch, 337 Pa.Super. 22, 486 A.2d 460 (1984). The actions must be judged by what was done, not by what was not done. In addition, the efforts need only be reasonable; lack of due diligence should not be found simply because other options were available or, in hindsight, would have been more productive. Commonwealth v. Cruz, supra, 524 A.2d at 509, citing, Commonwealth v. Kaminski, 349 Pa.Super. 78, 502 A.2d 1281 (1985). In the present case, the trial court adequately set forth the Commonwealth's activities in attempting to apprehend appellant:

Officer Thomas Augustine testified [at the suppression hearing on December 7, 1988] that he in the company of several police officers attempted to serve the arrest warrant at the defendant's last known address. (N.T. 12/7/88, p. 10). Based on the information received from Mrs. Ingram, the defendant's mother, the police were able to form a reasonable belief that the defendant had left town, and, therefore, had no reason to return to the address. (N.T. 12/7/88, p. 12). Officer Augustine then entered a wanted message into the PCIC, but not the NCIC because it was the officer's belief that the defendant could not be extradited. (N.T. 12/7/88, pp. 13-16).

Officer Thomas Ryan testified that apprehension activities continued by himself and members of the police department in the neighborhood where the defendant was well known to them. Officer Ryan stated that on a daily basis during routine patrol, he and his partner haunted the spots where they had seen the defendant on numerous occasions in the past. (N.T. 12/7/88, p. 17). The continuing search ended in successful apprehension of the defendant by Officer Ryan on February 12, 1988, 196 days after the formal complaint was lodged. (N.T. 12/7/88, p. 17).

(Trial court opinion at pp. 28-29.)

We agree with the trial court, that this above police activity constitutes reasonable effort and due diligence in attempting to apprehend appellant. We will not, by judicial hindsight, criticize the police activity in this instance. Therefore, the 196 days between the time the complaint was filed on August 1, 1987, and the time appellant was arrested on February 12, 1988, is excluded from the computation of the period for trial commencement under Rule 1100. Recalculating the period, the Commonwealth had 365 days from February 12, 1988, the date of appellant's arrest, to bring appellant to trial. As appellant's trial commenced in December of 1988, there was no Rule 1100 violation. ²

Appellant next alleges that he was denied his Sixth Amendment right to counsel by virtue of the trial court's failure to grant appellant a continuance to hire private counsel after he expressed his general dissatisfaction with court-appointed counsel at the beginning of the voir dire. Pa.R.Crim.P. 316(c)(ii) states, "A motion for change of counsel by a defendant to whom counsel has been assigned, shall not be granted except for substantial reasons." A review of the record indicates that appellant, in the presence of the venire panel, expressed his dissatisfaction with trial counsel; however, appellant merely stated that he was not satisfied with counsel and was unable to specify counsel's deficiencies. (N.T. 12/7/88, pp. 27-28.) Thus, it appears from the record that appellant was unable to provide substantial reasons for the assignment of new counsel.

Additionally, whether to grant a defendant's petition to replace court-appointed counsel is a decision which is left to the sound discretion of the trial court. Commonwealth v. Neal, 387 Pa.Super. 165, 563 A.2d 1236, 1241 (1989) [citations omitted]. As a general rule, however, a defendant must show irreconcilable differences between himself and his court-appointed counsel before a trial court will be reversed for abuse of discretion in refusing to appoint new counsel. Commonwealth v. Neal, supra, 563 A.2d at 1241. The "right to counsel does not give [a defendant] the right 'to delay the trial indefinitely because he is dissatisfied with competent counsel appointed by the court, ready and willing to represent him.' " Commonwealth v. Neal, supra, at 1241, citing, Commonwealth v. Stiles, 229 Pa.Super. 411, 417, 323 A.2d 841, 844 (1974). In its opinion, the trial court states that appellant's trial counsel "clearly displayed spirited and conscientious preparation to defend this difficult defendant." (Trial court opinion at 39.) Therefore, as appellant failed to specify substantial reasons for the appointment of new counsel, we cannot find that the trial court abused its discretion in denying appellant a continuance in...