Com. v. Kohan

• Decision Date: 23 May 2003
• Citation: 825 A.2d 702
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael J. KOHAN, Appellant.
• Court: Pennsylvania Superior Court

825 A.2d 702

COMMONWEALTH of Pennsylvania, Appellee v. Michael J. KOHAN, Appellant.

Superior Court of Pennsylvania.

Submitted January 6, 2003.

Filed May 23, 2003.

J. Richard Narvi, Pittsburgh, for appellant.

Michael W. Streily, Deputy Dist. Atty., and Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before: GRACI, CAVANAUGH, JJ., and McEWEN, P.J.E.

GRACI, J.

¶ 1 Appellant, Michael J. Kohan ("Kohan"), has taken this appeal from the judgment of sentence to serve a term of imprisonment of from three years to six years, imposed after a jury found him guilty of sexual assault, aggravated indecent assault and indecent assault. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 The distinguished Judge Lawrence J. O'Toole, has provided this Court with the following accurate summary of the procedural history of this case:

On March 17, 1999, the defendant was charged at CC199905011 with one count each of rape, sexual assault, aggravated indecent assault, and indecent assault.¹... On February 25, 2000, the defendant proceeded to a jury trial on these charges before the Honorable Lawrence J. O'Toole. That same day the jury returned a verdict of guilty on the counts of sexual assault, aggravated indecent assault, and indecent assault. The jury was hung on the rape charge. On April 24, 2000, the rape charge was nolle prossed. The defendant proceeded to sentencing on the other charges. He was sentenced to a term of imprisonment of not less than thirty-six (36) months nor more than seventy-two (72) months on count two, sexual assault, and to no further penalty as to counts three and four. No appeal was filed. On July 12, 2000, Mr. Kohan filed a Post Conviction Relief Act Petition. Counsel was appointed and after the filing of an amended petition, on July 27, 2001 this Court reinstated Mr. Kohan's appellate rights nunc pro tunc. In response to this Court's order counsel for petitioner filed a Concise Statement of Matters Complained of Pursuant to Rule 1925(b) of the Rules of Appellate Procedure. In that statement he made the following claims:

1. Trial counsel was ineffective in failing to locate and call several witnesses known to trial counsel who would have provided exculpatory testimony:

a. Cindy Maseth ... would have testified that the alleged victim, Jennifer Stoyle, had made prior claims that she intended to get the defendant and put him in jail before the occurrence of the alleged sexual assault.

b. Donny Sasinowski ... would have testified that the [victim] did, in fact, state that she filed these charges to get rid of the defendant and get on with her life.

2. Because a witness' bias is always relevant and the evidence in this case was strictly a matter of credibility, as both the victim and the defendant testified, any evidence of bias or ill will on the part of the victim would have been relevant to his defense.

Opinion, 1/31/02, at 1-2.

¶ 3 Counsel for appellant, in his brief to this Court, states two questions for review, which we set out as follows:

I. Was trial counsel ineffective for failing to call Cindy Maseth as a witness at trial ...?

II. Does the proposed testimony of Donny Sasinowski constitute substantial after discovered evidence...?

Brief for Appellant, at 3.

II. DISCUSSION

¶ 4 As for Kohan's first claim, i.e., the assertion of ineffectiveness for failing to investigate and obtain a relevant witness, the record is lacking a factual basis upon which to grant relief. We are compelled, however, to the conclusion that this is precisely the type of issue that falls within the holding of the recent decision of the Pennsylvania Supreme Court in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.2002), which held that "as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review." Therefore, like the court in Grant, we dismiss Kohan's claim for ineffective assistance of counsel without prejudice to Kohan's assertion of his ineffectiveness claim in the context of a petition timely filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541 et seq. ("PCRA").

¶ 5 Turning to Kohan's second claim, initially, it must be noted that in his statement of matters complained of on appeal as set forth above, this after-discovered evidence claim was set forth as part of the claim that trial counsel was ineffective in failing to call several witnesses "who would have provided exculpatory testimony." Statement Pursuant to Rule 1925(b) of Appellate Procedure, 11/21/01, at 2. That is how the trial court understood it in crafting his Rule 1925(a) Opinion. Opinion, 1/31/02, at 1-2. This was one of the two issues set forth by Kohan which the trial court said could not be resolved without an evidentiary hearing. Id. at 3. On appeal, this claim has been transmogrified into an after-discovered evidence claim.

¶ 6 Claims not raised in a Rule 1925(b) statement are waived and may not be addressed on appeal. Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998). There is no waiver, here, however, because Kohan was not required to raise this claim of after-discovered evidence in this direct appeal. This issue is not properly before us. Accordingly, Kohan may pursue any and all claims for relief he may have, including this after-discovered evidence claim if he so chooses, in a timely-filed petition under the PCRA. See 42 Pa. C.S.A. §§ 9543(a)(3) (in order to be eligible for relief under PCRA petitioner must plead and prove that issue is not waived) and 9544(b) (issue waived if it could have been raised on direct appeal).

¶ 7 Only issues that are properly raised and preserved in the trial court may be considered on appeal. Pa.R.A.P. 302(a). Issues raised before or during trial are properly preserved for appeal. Pa. R.Crim.P. 720(B)(1)(c). So are issues raised in a timely optional post-sentence motion, provided those issues were properly preserved at the appropriate point in the proceedings. Pa.R.Crim.P. 720(B). For example, a criminal defendant could not assert a claim in a post-sentence motion for a new trial that evidence was erroneously admitted during his trial if he hadn't lodged an objection during the trial when the evidence was admitted. Failure to object results in a waiver of the claim. Commonwealth v. Pearson, 454 Pa.Super. 313, 685 A.2d 551, 555 (1996) (en banc). See also Commonwealth v. Hudson, 820 A.2d 720, 2003 WL 1344811 (Pa.Super., March 18, 2003) (claim of ineffective assistance of counsel raised in timely post-sentence motion may be considered on direct appeal from judgment of sentence).

¶ 8 Once an appeal has been taken, except in limited circumstances not present here, a trial court may no longer take any substantive action in a case. Pa.R.A.P. 1701(a); Commonwealth v. Pearson, 454 Pa.Super. 313, 685 A.2d 551, 557 (1996) (en banc). At that point, however, the trial court is required to write an opinion setting forth the reasons for its order or other matters appealed from if the reasons do not already appear in the record. Pa. R.A.P.1925(a); K-B Building Co. v. Hermara Associates, Inc., 709 A.2d 918, 919 (Pa.Super.1998). The trial court may not enter any kind of an order on the claims but may indicate how it would have acted if permitted to do so. Id. (though trial court had failed to timely act on post-trial motions before judgment was entered as permitted by the rules, court was still required to issue non-dispositive opinion under Rule 1925).²

¶ 9 A Rule 1925(a) opinion is the first part of the appellate process. As the Supreme Court said in Commonwealth v. Lord, 719 A.2d at 308:

The absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review. Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process.

(emphasis added). Frequently, such opinions identify issues that, for one reason or another, are waived. Sometimes they identify where issues have been raised and preserved and put them in their proper context. Such identification is important to the appellate court reviewing the issues.

¶ 10 To assist it in preparing its Rule 1925(a) opinion, a trial court is authorized upon the taking of an appeal to direct the appellant to file and serve upon the court a concise statement of matters complained of on appeal. Pa.R.A.P.1925(b). Failure to raise an issue in a Rule 1925(b) statement results in waiver of that issue on appeal. Lord, 719 A.2d at 309. This is so even though the particular issue was preserved under Rule 720(B)(1)(c) by having raised it at or before trial. Id. (observing that there is no conflict between Rule 720 (previously 1410) and Rule 1925 in this regard). However, "[a] party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b) order." Davis v. Woxall Hotel, Inc., 395 Pa.Super. 465, 577 A.2d 636, 639 n. 3 (1990) (citing Commercial Credit Corp. v. Cacciatiore, 343 Pa.Super. 430, 495 A.2d 540, 543 (1985)).

¶ 11 Here, to the lament of the trial court, Opinion, 1/31/02, at 2, Kohan raised this ineffective assistance/after-discovered evidence claim for the first time in his Rule 1925(b) statement. Accordingly, the trial court was powerless to act on it. Pearson, supra. The question, then, is how are we to treat this issue. If this issue had been presented as an ineffective assistance claim to this Court as it was presented to the trial court in the Rule 1925(b) statement, we would dismiss it under Grant, just as we are dismissing Kohan's other claim. We believe that this after-discovered evidence claim should be treated as we now are required to treat claims of ineffective assistance of counsel when they are raised for the first time on direct appeal.

¶ 12 Before Grant, it had long been the law that claims of ineffective assistance of counsel were required to be...