Com. v. Miller

• Decision Date: 08 January 1990
• Citation: 390 Pa.Super. 129,568 A.2d 228
• Parties: COMMONWEALTH of Pennsylvania v. Joseph P. MILLER, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 228

568 A.2d 228

390 Pa.Super. 129

COMMONWEALTH of Pennsylvania v. Joseph P. MILLER, Jr., Appellant.

Superior Court of Pennsylvania.

Argued Dec. 5, 1989.

Filed Jan. 8, 1990.

Joseph J. Marinaro, Philadelphia, for appellant.

Kathy Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

Before McEWEN, OLSZEWSKI and TAMILIA, JJ.

TAMILIA, Judge:

This is an appeal from the judgment of sentence for appellant's convictions of third degree murder, aggravated assault, criminal conspiracy and possession of an instrument of crime. He was sentenced to an aggregate term of imprisonment of ten to thirty years. Appellant was jointly tried by a jury with his father, Joseph Miller, Sr., and Ernest Colding. ¹

The evidence produced at trial shows that at the time of the incident appellant and his co-defendants lived at 910 North 29th Street in Philadelphia and the victim lived at 912 North 29th Street. Appellant and his father had a history of quarreling with the victim's household (which included a nephew of Joseph Miller, Sr.) requiring police intervention. On August 1, 1986 appellant and co-defendants sent their children away from the house and armed themselves with guns. That night, after an argument, the victim Eric Levetter, along with Kenneth Miller, Marlon Burton (Kenneth's thirteen year old son), and Walter Johnson walked over to appellant and his co-defendants who were sitting on their front steps. As Levetter and his cohorts approached, Joseph Miller, Sr. passed a gun to appellant, his son, who shot Kenneth Miller in the thigh. As Kenneth retreated, Ernest Colding opened fire on the unarmed Levetter as he attempted to get away. Levetter fell in front of his house and Colding shot him repeatedly as he tried to get up, one bullet entering his hand when he held it up to protect himself.

Prior to trial, a suppression hearing was held on appellant's motion to suppress statements he had made to George J. Shotzbarger, assistant district attorney. On September 18, 1986, appellant called Shotzbarger's office and left a message for him to return the call. Shotzbarger did so and appellant expressed the desire to get his father out of jail. In the course of the conversation, appellant, after being given his rights, told Shotzbarger that Joseph Miller, Sr. was innocent and that he (appellant) and Colding were the only ones with weapons.

Appellant claims he and Shotzbarger discussed possible plea agreements and, therefore, appellant's statements from this conversation should be suppressed. Since trial counsel failed to raise this argument at the suppression hearing, appellant claims his counsel was ineffective. Trial counsel did raise the failure of counsel to be present during the telephone conversation saying that should result in suppression of the conversation. ² It is only on appeal that appellate counsel shifts the theory for suppressing the statement alleging counsel's ineffectiveness in failing to base a suppression claim on the plea bargain theory. The Commonwealth claims the record is clear appellant and Shotzbarger were not engaged in plea bargaining; therefore, counsel was not ineffective for failing to pursue this theory.

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel's commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, ---, 559 A.2d 504, 505 (1989).

Thus we must first ascertain whether the conversation between appellant and Shotzbarger amounted to plea bargaining.

Initially, ... it must be determined in such cases whether or not the statement or statements made by an accused are in connection with plea negotiations. U.S. v. Robertson, 582 F.2d 1356 (5th Cir.1978) provides a workable analytical framework to determine the appropriate characterization:

... first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and second, whether the accused's expectation was reasonable given the totality of the objective circumstances. Id. at 1366.

Of primary importance in assessing an accused's subjective expectation of negotiating a plea is whether the Commonwealth showed an interest in participating in such discussions. In line with this reasoning, voluntary, unsolicited statements uttered by an accused to authorities cannot be said to be made in furtherance of striking a plea bargain.

Commonwealth v. Calloway, 313 Pa.Super. 173, 184-85, 459 A.2d 795, 800-01 (1983).

Our review of the testimony elicited during the hearing on the suppression motion leads us to find appellant's statements were not made in the course of plea negotiations.

The call from appellant was returned by Mr. Shotzberger who, before any discussion, advised appellant he should say nothing and should have his attorney present, which the assistant district attorney would arrange, perhaps by conference call. He was also informed that if he continued, anything he said could and would be used against him in court. Appellant's response was, "Well, I don't care about that. What I want to do is I want to get something off my chest." He went on to say his father was innocent and he (appellant) shot two guys and "Codeine [sic] did it too." (S.T. 5/18/87, pp. 56-57.) From this point the conversation segued into a discussion of taking the matter up with appellant's counsel and what procedures would follow to pursue that aspect of the case. The statement at that point was clearly admissible as a voluntary statement, which was inculpatory and in conflict with a previous statement denying culpability. The entire initial aspect of the conversation was focused on appellant getting his father out of jail and shifting responsibility for the actual shooting from his father to himself. Thus, the requirement espoused by Calloway, supra, that the accused exhibit an actual subjective expectation of plea negotiation and that such an expectation was reasonable, has not been met.

The discussion of a possible plea came only later in the conversation when Mr. Shotzberger informed appellant that if he was found to be the shooter, he faced a possible life sentence or death by electrocution (S.T. at 60-61). The conversation then turned to possible plea negotiations. The subsequent discussion of possible plea negotiations does...