Com. v. Lenig

• Decision Date: 24 April 1991
• Docket Number: No. 00278,00278
• Citation: 589 A.2d 700,403 Pa.Super. 455
• Parties: COMMONWEALTH of Pennsylvania v. Terry L. LENIG, Appellant. Hsbg. 1990.
• Court: Pennsylvania Superior Court

Page 700

589 A.2d 700

403 Pa.Super. 455

COMMONWEALTH of Pennsylvania v. Terry L. LENIG, Appellant.

No. 00278 Hsbg. 1990.

Superior Court of Pennsylvania.

Submitted Jan. 14, 1991.

Filed March 11, 1991.

Reargument Denied April 24, 1991.

James R. Protasio, Williamsport, for appellant.

Nancy L. Butts, Asst. Dist. Atty., Williamsport, for Com., appellee.

Before OLSZEWSKI, HUDOCK and BROSKY, JJ.

OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lycoming County, following appellant's conviction for possession of a controlled substance and delivery of a controlled substance.

The facts of this case, as summarized by the trial court, are as follows:

On February 20, 1986 the defendant [appellant] sold 7.1 grams of marijuana to a confidential informant, John Konoski. Prior to the buy, the informant was searched and given a marked $20.00 bill by police agent Floyd Reed. Later, that same day, Agent Reed received information ¹ that the defendant was "holding" drugs. At the request of Agent Reed by radio transmission, two uniformed policemen, Officers Lawrence Kuhn and William Kemp, stopped the defendant on a street in Williamsport, Pennsylvania, near the defendant's home. The defendant was searched and the officer's found on defendant's person $318.00 in money including the $20.00 marked bill from the earlier controlled purchase, six plastic bags of marijuana, a set of pocket scales and a pack of cigarette papers. Subsequently, the defendant was taken to the police station where the items seized were inventoried. On March 10, 1986 the defendant was charged with possession of a controlled substance, possession with intent to deliver and possession of drug paraphernalia. The case was indexed to Lycoming County Case No. 86-10-332. He was not charged with the earlier delivery on February 20 to the confidential informant.

In case No. 86-10,332 the defendant was found guilty and an appeal was taken to the Superior Court. There was a remand hearing to determine whether defendant's trial counsel was ineffective in failing to file a motion to suppress evidence based on the assertion that the defendant was stopped and searched without his consent. In its opinion and order dated June 13, 1988 the Lower court ruled there was probable cause for the search and, therefore, trial counsel was not found ineffective.

Prior to the time scheduled for the remand hearing, the assistant district attorney and defense counsel attempted to resolve the matter. The district attorney advised counsel before the hearing that new charges would be filed if the hearing was held and the identity of the informant had to be revealed. No agreement was reached and the hearing was held. On April 6, 1988 Agent Reed served the new charges, the subject of this current case: the possession and delivery of marijuana to the disclosed informant.

(Trial court opinion of 3/8/90, at 2-3.) Appellant filed pre-trial motions to dismiss charges based on violations of 18 Pa.C.S.A. § 110 and Rule 1100 of the Pennsylvania Rules of Criminal Procedure, double jeopardy and collateral estoppel, for prosecutorial vindictiveness and to suppress evidence. These motions were denied. Appellant was found guilty by a jury on October 11, 1988. Appellant filed post-verdict motions which were denied and this timely appeal followed.

Appellant raises the following issues for our consideration:

1. Was the evidence produced at trial the fruit of an illegal search and seizure?

2. Was counsel ineffective for failing to litigate a valid search and seizure claim in Appellant's Motion to Suppress?

3. Was counsel ineffective for failing to object to the admissibility and authenticity of the marked money at trial?

4. Did the court err in denying the Motion to Dismiss based upon Rules [18 Pa.C.S.A. s] 110 and [Rule] 1100 and on the theory of Double Jeopardy?

5. Did the Court err in denying the Motion to Dismiss based upon prosecutorial vindictiveness?

6. Did the court err in denying the Motion for a New Trial based upon after discovered evidence?

7. Did the court err in denying the Motion for Post trial relief based upon the violation of compulsory process for obtaining witnesses in his favor?

(Appellant's brief at 3.) We will dispose of appellant's first three issues relating to the prior charge for possession; however, as we find merit to appellant's fourth issue relating to the later charge for delivery to the informant, we respectfully reverse the judgment of sentence.

Appellant's first and second issues concern whether the trial court erred in allowing into evidence a $20.00 bill seized from appellant's person, and whether trial counsel was ineffective for failing to litigate the search and seizure claim. Appellant contends that the seizure of the $20.00 bill from his person was illegal and that the money should have been suppressed as a fruit of the illegal search. This issue, concerning the search and seizure, was the subject of a special remand hearing held in case No. 86-10,332 where the Superior Court remanded the case for an evidentiary hearing. See unpublished memorandum, Commonwealth v. Lenig, 375 Pa.Super. 619, 541 A.2d 29 (1988). The trial court in its opinion dated June 13, 1988, denied appellant's claim of ineffectiveness of counsel. The lower court found that the police officer had probable cause to stop appellant and, therefore, the search was lawful. (Trial court opinion at 3.) Appellant appealed from the lower court order. This Court affirmed the order entered by the lower court in an unpublished memorandum, Commonwealth v. Lenig, 390 Pa.Super. 654, 561 A.2d 820 (1989).

The arguments raised by appellant in his first two issues are not convincing. The issues were decided in Commonwealth v. Lenig, 390 Pa.Super. 654, 561 A.2d 820, and are therefore covered by res judicata or the "law of the case" doctrine. Under the doctrine of "law of the case," where an appellate court has considered and decided a question on appeal, that Court will not, in a subsequent appeal of another phase of the same case, reverse its previous ruling, even though convinced it was erroneous. Delaware River Port Authority v. Pennsylvania Public Utility Commission, 408 Pa. 169, 182 A.2d 682 (1962). See, Roskwitalski v. Reiss, 338 Pa.Super. 85, 487 A.2d 864 (1985), alloc. denied, 514 Pa. 619, 521 A.2d 933 (1987); Commonwealth v. Tick, 431 Pa. 420, 246 A.2d 424 (1968); Albright v. Wella Corp., 240 Pa.Super. 563, 359 A.2d 460 (1976). We therefore will not reverse our previous holding concerning these issues and find no merit to appellant's first and second issues.

Appellant's third issue concerns whether trial counsel was ineffective for failing to object to the admissibility and authenticity of the marked $20.00 bill. Appellant contends that the Commonwealth failed to establish the links in the chain of custody and therefore the marked $20.00 bill was not admissible.

To determine whether trial counsel rendered ineffective assistance, the inquiry is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An ineffective assistance of counsel claim will be successful if:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, supra at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

In Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), the Pennsylvania Supreme Court set forth the standard by which an ineffective assistance of counsel claim is determined:

Our cases clearly indicate that ineffectiveness claims are measured by two components. First, counsel's performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). We also presume that counsel is acting effectively. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).

Second, we have required that the defendant demonstrate how the ineffectiveness prejudiced him. Commonwealth v. Clemmons, 505 Pa. 356, A.2d 955, (1984); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983) cert denied 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984); ...

Id. at 158-159, 527 A.2d at 975.

It is well established that the Commonwealth need not call every individual who may have had contact with the evidence, nor need it eliminate all possibilities of tampering. Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976). The Commonwealth only needs to establish a "reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court." Id. at 38, 366 A.2d at 304 (citations omitted).

In the instant case, Agent Reed testified that he recorded the serial number of the bill. (N.T. at 51.) Agent Reed met the arresting officers at the scene and examined the money, at which time he found it to be identical. He then photocopied the money. (N.T. 55-56.) Officer Kuhns, the arresting officer, testified that he searched appellant and confiscated the money. Then, following police procedures, he labelled the evidence and placed the money in the records. (N.T....