Com. v. Molina

• Decision Date: 24 October 1986
• Citation: 516 A.2d 752,358 Pa.Super. 28
• Parties: COMMONWEALTH of Pennsylvania v. Angel R. MOLINA, Appellant.
• Court: Pennsylvania Superior Court

Page 752

516 A.2d 752

358 Pa.Super. 28

COMMONWEALTH of Pennsylvania v. Angel R. MOLINA, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 3, 1986.

Filed Oct. 24, 1986.

Peter D. Bludman, Philadelphia, for appellant.

Maxine Stotland, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before WICKERSHAM, OLSZEWSKI and BECK, JJ.

OLSZEWSKI, Judge:

This appeal follows judgment of sentence for aggravated assault. Appellant, Angel Molina, was tried and convicted by a jury in the shooting of Monserate Quiles. We affirm the judgment of sentence.

On the evening of June 18, 1982, appellant visited his neighbors, Monserate Quiles and Olga Cuevas, husband and wife. Trial witnesses presented two stories. First, according to Quiles (the victim), appellant flirted with his wife. Angered, Quiles followed appellant home when appellant left. Quiles testified that he had a knife in his back pocket, which he used to open boxes at work, and a wrench in his hand. Quiles further testified that he would have used the wrench to defend himself if attacked, but stated that he did not threaten appellant with it. Quiles knocked on appellant's door and a few minutes later, appellant emerged from his home holding a gun. Appellant pushed Quiles' wife, who was standing at the bottom of the steps, and fired two shots, one of which struck Quiles in the neck.

According to defense witnesses, appellant shot in self-defense. Appellant denied flirting with Quiles' wife, Olga Cuevas. He stated that he left Quiles' house and went home to bed. About a half hour later someone knocked on appellant's door. Appellant went downstairs, opened the door and saw Quiles holding a knife-like object. According to appellant, Quiles said, "I came here to kill you because you got fresh with my wife." (N.T. p. 122). Appellant then closed the door, went upstairs and told his daughter to call the police. When fifteen minutes passed and the police had not arrived, appellant got his gun, went out on the steps and called to Pablo Melendez who was on the sidewalk near appellant's house. Quiles then approached appellant and, threatening to kill him, lunged at him with the knife. At that point, Pablo Melendez knocked the knife out of Quiles' hand. When Quiles retrieved the knife, appellant fired one shot.

In November of 1982, a jury convicted appellant of aggravated assault and possession of an instrument of crime. At the sentencing hearing held following the denial of post-trial motions, the trial court refused to apply the mandatory minimum sentence of five years' imprisonment for aggravated assault committed with a firearm, as required by Section 9712 of the Mandatory Sentencing Act, 42 Pa.Cons.Stat.Ann.Sec. 9712 (Purdon 1982). Instead, the court imposed probation for both convictions. Following denial of its motion to modify sentence, the Commonwealth filed an appeal challenging the trial court's refusal to impose the minimum sentence provided by section 9712. On August 2, 1985, a panel of this Court vacated the sentence of probation for aggravated assault and remanded for resentencing. Commonwealth v. Molina, 344 Pa.Super. 459, 496 A.2d 1196 (1985).

On February 11, 1986, represented by newly-appointed counsel, appellant appeared before the trial court for resentencing. At that time, new counsel for the appellant reminded the court that he had previously filed a "Petition Averring Ineffectiveness of Trial Counsel" in the nature of a petition under the Post-Conviction Hearing Act, and indicated that he desired a hearing on the petition prior to any resentencing. However, because appellant had not yet exhausted his appellate rights, the trial court denied the petition as untimely, and imposed the mandatory minimum sentence for aggravated assault committed with a firearm of five-to-ten years of imprisonment. ¹ This appeal timely followed.

Appellant makes numerous allegations challenging his trial counsel's effectiveness. The trial court did not hold a hearing on these claims. In such cases, the appellate court is to evaluate the ineffectiveness claims and decide whether they have merit; if they have no merit, an evidentiary hearing is unnecessary and the unfounded allegations should be rejected and dismissed. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

With this in mind we turn to the standards which govern our review of appellant's claims. The law presumes that counsel is effective and places upon appellant the burden of establishing his counsel's ineffectiveness. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983). We remain guided by the standards first articulated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

(C)ounsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record ... (T)he balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.

Id. at 604-605, 235 A.2d at 352-353. See Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983). Moreover, it is only when the claim which has been foregone is of arguable merit that further inquiry must be made into the basis for counsel's decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). Finally, even where appellant establishes his counsel's shortcomings, he must show that counsel's ineffectiveness so prejudiced his case that he was deprived of a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 329, 498 A.2d 423, 426 (1985) (en banc). This Court has stated that appellant must show that "the alternatives not chosen (by counsel) offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice to the defendant." Commonwealth v. Garvin, 335 Pa.Super. 560, 566, 485 A.2d 36, 39 (1984) (emphasis added). A review of the record applying the foregoing analysis compels us to reject each of appellant's ineffectiveness claims.

Appellant's allegations focus on trial counsel's alleged failure to present adequately his defense of self-defense. To avail oneself of deadly force for self-protection, three factors must be found to exist. First, the actor must have reasonably believed himself to be in imminent danger of death or serious bodily harm, and that it was necessary to use deadly force against the victim to prevent such harm. Second, the actor must have been free from fault in provoking or continuing the difficulty which resulted in the slaying. ^{2 2} Third, the actor must have violated no duty to retreat. 18 Pa.Cons.Stat.Ann.Sec. 505 (Purdon 1983); Commonwealth v. Brown, 491 Pa. 507, 512, 421 A.2d 660, 662 (1980). Appellant argues that his trial counsel could have established these three elements of justifiable self-defense.

In connection with the third element, appellant contends that his trial counsel was ineffective for failing to show that appellant fired from his doorway and therefore had no duty to retreat. Specifically, asserts appellant, one has no duty to retreat in his dwelling and a doorway is part of a dwelling; therefore, trial counsel should have demonstrated that appellant shot from his doorway. We find this allegation meritless. While we agree that one has no duty to retreat if standing in his doorway, see Commonwealth v. Jackson, 467 Pa. 183, 192, 355 A.2d 572, 576 (1976), the testimony placed appellant outside his home at the time Quiles was shot. Appellant himself testified that he was standing on the steps located outside his front door. Both appellant's wife and Pablo Melendez defense witnesses, placed appellant on the second step from the top of this stairway. The record is clear that Quiles was also outside, somewhere in front of appellant's house, when he was shot. In light of this evidence, trial counsel cannot be faulted for failing to show that appellant fired from his doorway. ³

Appellant also alleges counsel's ineffectiveness for failing to request the court to instruct the jury that the doorway is part of a dwelling. ⁴ This claim is meritless as well. The record indicates that, consistent with the testimony at trial, appellant's counsel did request an instruction explaining that the doorstep is considered part of a house. ⁵ The trial judge, however, refused counsel's request. ⁶

Appellant makes several ineffectiveness claims relating to the tactics utilized to establish the first element, that appellant reasonably believed he was in danger prior to firing at Quiles. We must reject these claims, however, because we find that each of the alleged omissions was within the realm of sound trial tactics. See Commonwealth v. Mizell, 493 Pa. 161, 164, 425 A.2d 424, 426 (1981) (Trial counsel inherently have broad discretion to determine the course of defense tactics employed.).

First, appellant argues ineffectiveness because his trial counsel failed to display to the jury the weapon allegedly held by Quiles at the time Quiles was shot. Trial counsel should have introduced the weapon, appellant claims, to show the jury its lethal quality. The record indicates that, while trial counsel did not display the weapon, he did elicit testimony describing it. Defense witnesses called it a knife or a sword, or described it to be like a knife or a sword, indicating that it was long, narrow and pointy at the end. (N.T. pp. 97, 107, 110, 122, 144). Even on cross-examination of Quiles, trial counsel elicited that it was long and thin with two little points at the end. (N.T. p. 35). Significantly, although appellant believed it to be a knife or a sword, prosecution witnesses testified that the alleged weapon was in...