Com. v. Lawrence

• Decision Date: 08 August 1991
• Citation: 408 Pa.Super. 9,596 A.2d 165
• Parties: COMMONWEALTH of Pennsylvania v. Albert LAWRENCE, Appellant.
• Court: Pennsylvania Superior Court

Page 165

596 A.2d 165

408 Pa.Super. 9

COMMONWEALTH of Pennsylvania v. Albert LAWRENCE, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 28, 1991.

Filed Aug. 8, 1991.

Suzanne M. Swan, Bethel Park, for appellant.

Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.

Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.

FORD ELLIOTT, Judge:

This is a direct appeal from a judgment of sentence entered on January 11, 1990, in the Court of Common Pleas of Allegheny County. Appellant was convicted of robbery and criminal conspiracy and sentenced to a term of five to ten years imprisonment. Appellant alleges several claims of ineffective assistance of his trial counsel. Based upon our review of the record, we must vacate the judgment of sentence and remand for resentencing consistent with this Opinion.

On April 20, 1989, appellant was charged with one count of robbery and one count of criminal conspiracy. Pursuant to a defense request, appellant participated in a lineup on June 22, 1989. Following the denial of several pretrial motions, some of which were filed pro se, appellant proceeded to a jury trial before the Honorable Walter R. Little on November 8, 1989. At trial, appellant was represented by a public defender. Appellant was convicted of both charges on November 9, 1989. Counselled timely post-trial motions were filed and denied following a hearing on January 11, 1990. Previous to the hearing the Commonwealth had filed a Notice of Intention to Proceed under 42 Pa.C.S. § 9712 on January 4, 1990. Appellant filed a pro se motion to modify his sentence on January 12, 1990, but was denied relief by the trial court on January 18, 1990. Appellant filed his timely notice of appeal to this court on February 12, 1990.

On March 1, 1990, the trial court ordered appellant to file a concise statement of the matters complained of on appeal pursuant to Pa.R.A.P.1925. Counsel complied with the trial court order on March 30, 1990. The trial court filed its opinion addressing appellant's matters on July 3, 1990. On appeal, appellant is represented by the Office of the Public Defender, which filed a brief with this court on October 3, 1990. Appellant filed a supplemental pro se brief on January 2, 1991. Upon review of the pro se brief, appellant's counsel filed a petition to remand for the appointment of new appellate counsel on February 20, 1991, and this petition is presently before this panel.

The trial court has summarized the following facts established at trial.

On or about April 11, 1989, Defendant Albert Lawrence and an unidentified black accomplice entered the business premise of Ja-Kays Beer Distributors located at 4235 Murray Avenue in the Squirrel Hill section of Pittsburgh. It was approximately 9:40 in the evening, and the Defendant sat on a stool in front of the counter behind which the victim, Sherry Stoernell, was working. The Defendant handed the victim a bag and issued instructions to fill it with money. After complying with the Defendant's instructions, the victim was told to get down on the floor, while the Defendant and his accomplice made their departure with $273 from Ja-Kays Beer Distributor.

Trial court opinion, 7/3/90 at 2.

Appellant has raised the following issues in the counselled brief for our review:

I. Was defense counsel ineffective for not taking steps to prevent the violation of the presumption of innocence in favor of Mr. Lawrence?

A. Could the jury reasonably conclude from the evidence presented that Mr. Lawrence had engaged in prior criminal activity?

B. Was defense counsel ineffective for not requesting a mistrial, for withdrawing his objection to the submission of the photo array to the jury, and for withdrawing his request for a limiting instruction?

II. Was defense counsel ineffective for not filing post-trial motions alleging that the evidence was insufficient to establish the applicability of 42 Pa.C.S. § 9712?

A. Does the evidence prove that a firearm was "visibly possessed" by the defendant or his accomplice during the offense?

B. Was defense counsel ineffective for not objecting to or filing post-trial motions on the imposition of the mandatory sentence?

Initially, we need to address counsel's petition to remand for the appointment of new appellate counsel in light of appellant's allegation of counsel's ineffectiveness on appeal. Appellant filed a pro se appellate brief on January 2, 1991. The pro se brief was forwarded by the prothonotary to appellate counsel for review in compliance with Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990). Following review, counsel filed a petition on February 20, 1991, stating that the issues presented in the pro se brief were meritless, but that the pro se had alleged ineffective assistance of appellate counsel for not raising those issues; therefore, a remand is necessary for the appointment of new appellate counsel. See Commonwealth v. Ellis, supra.

Although in Ellis we established a procedure which requires counsel to petition this court for a remand to the trial court for the appointment of new appellate counsel when the client alleges counsel's ineffectiveness on appeal, such a procedure was not meant to conflict with the standards enunciated by the supreme court in Commonwealth v. McBee, 513 Pa. 255, 520 A.2d 10 (1986). In McBee, the supreme court held:

[w]hen appellate counsel asserts a claim of his or her own ineffective assistance of counsel on direct appeal, the case should be remanded for the appointment of new counsel except (1) where, it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is meritless.

Commonwealth v. McBee, supra, 513 Pa. at 261, 520 A.2d at 13. We see no reason why the McBee standard should not be applicable equally to instances where a pro se is alleging ineffective assistance of appellate counsel. Although counsel may be required to petition this court so as to insure that the ineffectiveness claims are presented, any grant of such a petition must be premised on the McBee standard. To do otherwise, would allow a pro se to make a mere assertion of ineffective assistance of appellate counsel so as to require the automatic remand for new appointed counsel. Such a practice would create administrative burdens and judicial delays similar to those we painstakingly sought to alleviate in Ellis, and clearly would undermine the very holding of that case. Therefore, in accordance with Ellis and McBee, appointed counsel, upon review of the pro se allegations of ineffectiveness should petition this court for a remand, citing the client's allegations of ineffectiveness. However, it is this court which will thereafter decide upon a review of the record whether a remand is in fact required. We find this procedure consistent with McBee and Ellis and emphasize that it is not the pro se allegations of ineffectiveness which we will review, but rather counsel's petition for remand filed pursuant to representation of appellant. Consequently, upon our review of the instant record, we cannot deem appellate counsel's stewardship ineffective in this matter; therefore, the petition to remand for the appointment of new appellate counsel is denied. Thus, we will review appellate counsel's brief in this instance. Commonwealth v. Ellis, supra.

Initially, appellant argues that Officer Mitchell's testimony at trial regarding appellant's photograph and his Pittsburgh identification number was sufficient to suggest to the jury that appellant had engaged in prior criminal activity. The testimony to which appellant objects occurred during an exchange between the prosecutor and Officer Mitchell.

[BY MR. DUTKOWSKI:]

Q. Okay. and what did you do as a result of seeing and interviewing Mr. DeMarco?

[BY DETECTIVE MITCHELL:]

A. I knew at that time he couldn't have committed the robbery.

Q. Okay, so what did you do, then?

A. So a couple of days later, I put together another photo array.

Q. Okay, I'm going to show you what's been marked as Commonwealth Exhibit 2, do you recognize this, a series of seven photographs?

A. Yes, I do.

Q. Is that the second photo array that you put together after seeing and speaking with Mr. DeMarco?

A. Yes I did.

Q. And what did you do with those photographs?

A. Which ones?

Q. Commonwealth Exhibit No. 2, what did you do with those?

A. I took those to Mrs. Stoernell on April 18th, on Tuesday, April the 18th, and I showed her, she viewed the photos. After viewing the photos, she positively identified Pittsburgh ID 99047, that belonging to a one Albert Lawrence.

Notes of Testimony, 11/8/89 at 68.

In Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972), the supreme court held that not every testimonial reference to a photographic identification of an accused is per se prejudicial; thereby, requiring a new trial. In Allen the court held "that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity." Id. at 181, 292 A.2d at 375; see also Commonwealth v. Reiss, 503 Pa. 45, 468 A.2d 451 (1983). The Allen court also stated that "a mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference...." Id. The supreme court delineated further on this issue in Commonwealth v. Brown, 511 Pa. 155, 161, 512 A.2d 596, 599 (1986) (plurality) (concurring opinion filed by Hutchinson, J.; Larsen, J. concurred in the result; Flaherty, J. filed a dissenting opinion in which Nix, C.J. and Zappala, J., joined) by stating:

... the possession by the police of one's photo does not ineluctably prove a previous conviction. At the most it proves only that the police had a photo of the defendant on file.

When an...