Com. v. Mescall

• Decision Date: 06 June 1991
• Citation: 592 A.2d 687,405 Pa.Super. 326
• Parties: COMMONWEALTH of Pennsylvania v. Daniel Patrick MESCALL, Appellant.
• Court: Pennsylvania Superior Court

Page 687

592 A.2d 687

405 Pa.Super. 326

COMMONWEALTH of Pennsylvania v. Daniel Patrick MESCALL, Appellant.

Superior Court of Pennsylvania.

Argued April 2, 1991.

Filed June 6, 1991.

Spero T. Lappas, Harrisburg, for appellant.

Kathy G. Wingert, Deputy Dist. Atty., Harrisburg, for the Com., appellee.

Before JOHNSON, HUDOCK and CERCONE, JJ.

CERCONE, Judge:

This is an appeal from the judgment of sentence pronounced on August 14, 1990. A jury convicted appellant of one count of robbery, ¹ one count of theft by unlawful taking, ² and one count of unauthorized use of an automobile. ³ He was acquitted of another charge of simple assault. ⁴ Trial counsel for appellant failed to file post-verdict motions on his behalf. This timely appeal followed. ⁵

The facts of this case are summarized as follows: Appellant, Daniel Patrick Mescall, married the complainant, Arlene Mescall in July of 1989. They resided in Dauphin County. Both parties testified that there were a plethora of domestic embroilments between them before and during the marriage. After one of these altercations on November 24, 1989, Mrs. Mescall left her husband. Because he would not give her an opportunity to pack her clothes, she wrote him a letter telling him that she was leaving him and requesting her clothes back.

On December 3, 1989, Mrs. Mescall went to her husband's house to get her clothes. Her husband was not at home. However, his father was there visiting and let her in. The two began to talk about the condition of her marriage to his son when appellant walked into the house. Another altercation ensued whereby appellant and his wife began struggling. In the course of the struggle, Mrs. Mescall hit her head on a glass cake plate thereby sustaining injuries. Also, during this struggle, appellant held down his wife's hand while seizing her engagement ring from her other hand.

The evidence is conflicting as to the following course of events. Mrs. Mescall testified that she was so scared, she ran out of the house to drive home. She then testified that appellant pursued her, threw her out of her car and drove away in the car. In contrast, appellant testified that when she ran out, she had forgotten her car keys in the house. When she returned for the keys, he took them and stated he needed to use the car. After arguing further with Mrs. Mescall, appellant took the car and drove to Philadelphia. Appellant's father corroborated appellant's recollection of the events. Once in Philadelphia, he parked the car, left the keys inside and left the doors unlocked. Appellant testified that when he returned, the car was gone. He then stated that he boarded a train for Harrisburg, never reporting the car missing to the local authorities. A state police officer testified at trial that the car was eventually found in central Pennsylvania. The car had been completely destroyed by fire.

Appellant raises five issues for our review. All the claims allege that trial counsel was ineffective in his representation for the following reasons:

1. failing to file post-verdict motions;

2. failing to object to the admission into evidence of appellant's prior bad acts;

3. failing to object to the trial court's elimination of an element of robbery in his instructions to the jury.

4. failing to object to the court's refusal to instruct the jury that the personal property in question may have been marital property;

5. failing to object to the admission into evidence that the automobile in question was found completely destroyed by fire.

We will discuss each of these issues seriatim. ⁶

Claims of ineffectiveness of counsel are subject to a three part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel's choice of action had some reasonable basis designed to effectuate his or her client's interests. Finally, a showing must be made of how counsel's choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989). The test for prejudice is "whether one can say with confidence that the jury would have returned a guilty verdict if counsel had provided effective assistance." Commonwealth v. Groff, 378 Pa.Super. 353, 372-73, 548 A.2d 1237, 1247 (1988). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1989). Moreover, counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989). A corollary to our three-prong test is that if any one of the requirements is not met by appellant, his claim of ineffectiveness must fail. With this standard in mind, we turn now to the merits of appellant's claims.

Appellant claims that trial counsel was ineffective for failing to object to evidence of prior bad acts to which the complainant, Mrs. Mescall, testified. Assuming arguendo that appellant's claim is of arguable merit, we fail to see how he was prejudiced by this testimony. Specifically, the testimony concerned prior acts of assaultive conduct on the part of appellant. Mrs. Mescall testified that appellant had physically abused her on previous occasions. Yet, despite this testimony, the jury acquitted appellant of simple assault. Appellant argues however, that had this evidence been properly excluded, the jury would have been more likely to acquit him of the other charges against him. We cannot agree. Even without this testimony, the jury had ample evidence before it to convict appellant of robbery, theft by unlawful taking and unauthorized use of an automobile. We therefore find that trial counsel was not ineffective for failing to object to this testimony.

Appellant next avers that trial counsel was ineffective for failing to object to the trial court's elimination of one of the elements of robbery from the instructions to the jury. The information charges appellant with robbery of his wife's engagement ring and her car. The evidence adduced at trial was sufficient to prove that appellant had robbed the victim of her ring, but insufficient to prove that he had robbed her of her car. Thus, in his instructions to the jury, the trial judge excluded the robbery of the car from deliberation and left the jury to consider the robbery of the ring only.

Appellant cites this court's holding in Commonwealth v. Stago, 267 Pa.Super. 90, 406 A.2d 533 (1979) that "when the court charges erroneously on an issue, and the defense case is absolutely dependent upon the jury's correct understanding of that issue, there can be no reasonable basis for defense counsel's failure to object." Id. at 101, 406 A.2d at 538. Stago however, is inapposite. In that case, trial counsel was deemed ineffective for failing to object to an incomplete instruction for the charge of simple assault, and a lack of instructions on the charge of incest. The court explained that trial courts are required to adequately define the elements of crimes. Id.

Instantly, appellant does not attack the adequacy of the instructions for the charge of robbery. Instead he attacks the exclusion of the car from the jury's consideration. In its simplest form, he argues that since he was charged with robbing his wife of both the car and the ring, he must have been found to have robbed her of both the ring and the car in order to be convicted. Appellant has not provided us with authority for this novel proposition, nor has our exhaustive research located any. Furthermore, the absurdity of his contention is clear. The fact that the prosecution could not meet its burden of proving robbery of the car does not eliminate the finding that he robbed his wife of her engagement ring. A robbery was committed. Since the jury was properly instructed as to the elements of robbery, we find appellant's argument meritless.

Thirdly, appellant argues that trial counsel was ineffective for failing to object to a prejudicial statement made by the complainant during her direct testimony. The pertinent testimony found in the trial transcript is as follows:

A. (by complainant)

And I wrote in this letter, I asked a friend of his to at least let me have my clothes. His response to her was I hate all women.

N.T. 6/18/90 at 18 (emphasis added).

This statement is a textbook example of double hearsay. Packel & Poulin, Pennsylvania Evidence § 806 (1987). While the statement appellant made to the victim's friend may have been an admission by a party, the friends statement to the victim was hearsay with no...