Com. v. Montalvo

• Decision Date: 12 May 1994
• Parties: COMMONWEALTH of Pennsylvania v. Pablo MONTALVO, Appellant.
• Court: Pennsylvania Superior Court

Page 1176

641 A.2d 1176

434 Pa.Super. 14

COMMONWEALTH of Pennsylvania v. Pablo MONTALVO, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 14, 1994.

Filed May 12, 1994.

Anthony Logue, Erie, for appellant.

William R. Cunningham, Dist. Atty., Erie, for Com., appellee.

Before OLSZEWSKI, TAMILIA and CERCONE, JJ.

CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after a jury found appellant, Pablo Montalvo, guilty of one count each of possession with intent to deliver cocaine ¹ and criminal conspiracy. ² We affirm.

Appellant was on probation in May of 1991. At that time, he met an undercover narcotics investigator posing as an individual on probation. Appellant agreed to supply the narcotics agent with cocaine and was subsequently discovered to be in possession of 27.1 grams of this substance. Although the events leading to appellant's arrest occurred on May 7 1991, the Commonwealth did not file any charges until June 25, 1992.

Daniel J. Brabender, Jr., Esquire represented appellant through the preliminary hearing stage of the proceedings. Mr. Brabender filed an initial omnibus pre-trial motion on appellant's behalf. Thereafter appellant engaged Gene P. Placidi, Esquire as his attorney. On March 3, 1993, the trial court accepted appellant's guilty plea to one count of possession with intent to deliver, and the Commonwealth agreed to nolle prosse a charge of criminal conspiracy. However, appellant subsequently moved to withdraw his guilty plea. The trial court granted this request on March 29, 1993.

Mr. Placidi then filed several motions, including a request for a bill of particulars and an amended omnibus pre-trial motion containing a suppression request, a motion to dismiss due to excessive and prejudicial delay, and requests for discovery. The Honorable Shad Connelly granted a rule to show cause on the omnibus pre-trial motion and scheduled a hearing for the morning of May 3, 1993. On that date, the trial court found that defense counsel had not properly filed the amended omnibus pre-trial motion with the court administrator in accordance with Erie County local rules and procedure. Consequently, Judge Connelly refused to consider the omnibus motion.

Appellant was brought to trial May 10, 1993, before the Honorable Michael T. Joyce sitting with a jury. The jury found appellant guilty of both criminal conspiracy and possession with intent to deliver. Mr. Placidi filed a motion for a new trial and/or arrest of judgment on May 21, 1993. However, the trial judge denied relief, and on June 25, 1993, sentenced appellant to serve a term of five (5) to ten (10) years imprisonment and pay a fine of $30,000 for the drug offense, with a consecutive term of incarceration of one (1) to three (3) years for criminal conspiracy.

Represented by new counsel, appellant filed a notice of appeal on June 25, 1993. Judge Joyce directed counsel to provide a concise statement of matters complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b). Counsel complied on July 30, 1993. The instant timely appeal followed raising sixteen issues for our consideration:

I. Whether the [trial] court erred and abused its discretion by failing to grant [appellant's] motion to dismiss, where based upon excessive and prejudicial delay between the criminal indictment and the arrest of the [appellant].

II. Whether the [trial] court erred and abused its discretion, whereas the [trial court refused to hear the [appellant's] amended omnibus pre-trial motion which included motions to suppress, motions for sanctions against the Commonwealth and motion to dismiss.

III. Whether the [trial] court erred and abused its discretion by refusing to hear [appellant's] oral motion in limine, where [appellant's] counsel requested the Commonwealth be precluded from pursuing a conviction for possession with intent to deliver a controlled substance under the theory of accomplice liability since the Commonwealth never indicated this in its bill of particulars that it would be proceeding under that certain theory.

IV. Whether the [trial] court erred and abused its discretion by instructing the jury on liability for conduct of an accomplice, where the Commonwealth never indicated in its bill of particulars that it was proceeding under accomplice liability for a conviction of possession with intent to deliver a controlled substance.

V. Whether the [trial] court erred and abused its discretion by overruling an objection by defense counsel, where a question of the value of said illegal drugs arose.

VI. Whether the [trial] court erred and abused its discretion, where the [trial] court would not allow defense counsel to object to certain Commonwealth evidence.

VII. Whether the [trial] court erred and abused its discretion by allowing certain testimony to come in pertaining to Pennsylvania State Attorney Drug Agent, David Seda's involvements at the Erie County Office of Adult Probation whereas this clearly violated the [appellant's] Fifth (5th), Sixth (6th) and Fourteenth (14th) Amendment rights in violation of the federal Constitution, and violations of the Pennsylvania state Constitution.

VIII. Whether the [trial] court erred and abused its discretion and violated appellant's rights by failing to have a complete record of the trail [sic] thus prohibiting an accurate review for appellant [sic] purposes.

IX. Whether the [trial] court erred and abused its discretion and failed to consider circumstances regarding appellant's sentencing where the [trial] court failed to take into consideration the [appellant's] involvement in a conspiracy was certainly less than the other individual's alleged involvement in the alleged conspiracy.

X. Whether the District Attorney's Office demonstrated [prosecutorial] misconduct, where the Office of the Erie County District Attorney failed to properly respond to [appellant's] request for a bill of particulars per [Pennsylvania Rules of Criminal Procedure] 304, 305 and 306.

XI. Whether trial counsel was ineffective for failing to seek relief regarding the Commonwealth's Answer to its Bill of Particulars, where said Answer was clearly deficient under [Rules of Criminal Procedure] 304, 305 and 306.

XII. Whether trial counsel was ineffective for failing to properly file appellant's amended omnibus pre-trial motion, where trial counsel failed to properly file said motion per local rules of court thus denying certain critical motions that being motions to suppress, any and all physical evidence and fruits thereof, any and [all] statements given by [appellant], request for evidentiary hearing, as well as a motion for pre-trial discovery and inspection or motion for sanctions under Rule 305 of the Pennsylvania Rules of Criminal Procedure along with [appellant's] motion to dismiss.

XIII. Whether trial counsel was ineffective, where counsel failed to object to hearsay evidence at the time of trial.

XIV. Whether trial counsel was ineffective, where counsel failed to poll the jury upon reaching its verdict.

XV. Whether trial counsel was ineffective where it [sic] failed to move to strike certain testimony and asked for curative instructions regarding said testimony.

XVI. Whether trial counsel was ineffective by failing to move for a mistrial, where prejudicial testimony came in without objection thus committing reversible error.

Before addressing these claims on their merits, we note that an issue is waived for purposes of appellate review if it has not been lodged with the trial court in the form of a post-verdict motion. Pa.R.Crim.P., Rule 1123, 42 Pa.C.S.A.; Commonwealth v. Monarch, 510 Pa. 138, 146, 507 A.2d 74, 78 (1986); Commonwealth v. Bleigh, 402 Pa.Super. 169, 176, 586 A.2d 450, 453, allocatur denied, 528 Pa. 607, 596 A.2d 154 (1991). ³ Nevertheless, issues will not be deemed waived if they have been presented to the lower court in some form and have been addressed by the trial judge. See, e.g., Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805, allocatur denied, 528 Pa. 629, 598 A.2d 283 (1991). A claim alleging ineffectiveness of counsel, however, must be raised at the earliest stage in the proceedings in which counsel whose effectiveness is being challenged no longer represents the defendant. Commonwealth v. Batterson, 411 Pa.Super. 252, 257, 601 A.2d 335, 337 (1992). Thus, questions concerning the ineffectiveness of trial counsel are properly before the Superior Court when raised on direct appeal if this constitutes the earliest appropriate opportunity to raise such allegations. Commonwealth v. Pizzo, 529 Pa. 155, 157-58, 602 A.2d 823, 824 (1992); Commonwealth v. Allison, 424 Pa.Super. 341, 344 n. 2, 622 A.2d 950, 952 n. 2 (1993).

Our inspection of the certified record discloses that appellant preserved issues one through four by presenting them to the trial court via post-verdict motion. Although these motions contain no reference to issues five through ten, the trial judge nevertheless addressed them in his opinion. We will therefore not deem them waived for purposes of review. Issues eleven through sixteen concern the ineffectiveness of trial counsel and were raised at the first appropriate opportunity, i.e., when appellant, represented by new counsel, filed his Concise Statement of Reasons Complained of on Appeal pursuant to Rule of Appellate Procedure 1925(b). We conclude that all of appellant's claims are thus properly before the Superior Court and we shall address them seriatim.

Appellant first contends that the trial court erred in refusing to dismiss the instant case based upon an alleged "excessive and prejudicial delay" between the date of the underlying events and appellant's arrest. A trial court's conclusion that pre-arrest delay was reasonable under the facts of a particular case is within the discretion of the trial judge. Commonwealth v. Middleton, 379 Pa.Super. 502, 506-07, 550 A.2d 561, 562-63 (1988). We will reverse only if there is insufficient...