Com. v. Moore

• Citation: 715 A.2d 448
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Henry MOORE, Appellee.
• Decision Date: 14 July 1998
• Court: Superior Court of Pennsylvania

Page 448

715 A.2d 448

COMMONWEALTH of Pennsylvania, Appellant, v. Henry MOORE, Appellee.

Superior Court of Pennsylvania.

Submitted May 26, 1998.

Filed July 14, 1998.

Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appellant.

Hugh A. Donaghue, Media, for appellee.

Before JOHNSON, JOYCE and BECK, JJ.

JOHNSON, Judge:

The Commonwealth appeals from the order that granted Henry Moore a new trial pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. We affirm.

On April 11, 1989, Moore was arrested in connection with an incident in which a homeowner was beaten and robbed, and her grandchildren terrorized, when an intruder broke into her home. The homeowner, Jean Crooks, sustained severe head injuries, and one of her granddaughters suffered lacerations to the head. After being identified as the perpetrator, Moore was charged with criminal attempt to commit murder, simple assault, aggravated assault, robbery, theft by unlawful taking, recklessly endangering another person, and terroristic threats.

On September 18, 1989, a jury was selected and sworn to hear Moore's case; however, on September 19, 1989, the trial judge declared a mistrial because a number of the jurors had seen Moore in handcuffs. A new jury was immediately selected and sworn, but during deliberations, the trial judge again declared a mistrial after jurors indicated that they could not arrive at a unanimous decision and reported that one of the court officers had given them an improper suggestion.

Following this second mistrial, Moore filed a motion to dismiss, asserting that principles of double jeopardy barred his retrial. Following a November 28, 1989 hearing, the trial judge denied Moore's motion. Moore appealed. While Moore's appeal was pending, however, the trial court again set Moore's case for trial and overruled Moore's objection to the trial court's exercise of its jurisdiction in light of his appeal.

On January 12, 1990, the third jury impaneled to hear Moore's case found him guilty of one count each of criminal attempt to commit murder and aggravated assault, and two counts each of simple assault and robbery. The evidence against him included a positive identification by one of the victims and a full confession by Moore himself. The trial court denied Moore's post-trial motions. Moore then withdrew his previously filed appeal, and on July 16, 1990, the court sentenced Moore to twenty to forty years' incarceration. Moore, still represented by trial counsel, then filed a new appeal. This Court subsequently affirmed Moore's judgment of sentence. Commonwealth v. Moore, 419 Pa.Super. 660, 609 A.2d 585 (1992)(table).

On March 7, 1994, Moore filed a pro se petition for post conviction relief under the PCRA. Following the appointment of counsel, the filing of an amended petition, and an evidentiary hearing, the PCRA court granted Moore a new trial on the grounds that trial counsel rendered ineffective assistance by permitting the introduction of evidence relating to Moore's criminal history, and because the trial court lacked jurisdiction to retry Moore once he appealed the order that dismissed his post-trial motions. The Commonwealth now appeals.

On appeal, the Commonwealth contends that the PCRA court erred in granting Moore a new trial because: (1) trial counsel had a reasonable basis for introducing evidence related to Moore's other crimes; and (2) the trial court had jurisdiction to retry Moore, despite the existence of his pending appeal, because Moore's double jeopardy claims were frivolous.

Our review of the grant or denial of PCRA relief is limited to determining whether the record supports the findings of the post conviction court, and whether the court's order is otherwise free of legal error. Commonwealth v. Yager, 454 Pa.Super. 428, 434-36, 685 A.2d 1000, 1003 (1996)(en banc), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997); Commonwealth v. Petroski, 695 A.2d 844 (Pa.Super.1997). To be entitled to relief based on ineffective assistance of counsel, the PCRA petitioner must plead and prove, by a preponderance of the evidence, that his conviction resulted from "[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). To establish ineffective assistance, the petitioner must prove that the underlying claim has arguable merit, that counsel had no reasonable basis for the act or omission in question, andthat but for counsel's faulty performance, the outcome of the proceeding would have been different. Commonwealth v. Appel, 547 Pa. 171, 199, 689 A.2d 891, 905 (1997); Commonwealth v. Lewis, 430 Pa.Super. 336, 341-43, 634 A.2d 633, 636 (1993). Counsel is presumed to be effective, and the petitioner bears the burden of showing otherwise. Commonwealth v. Roberts, 545 Pa. 460, 465, 681 A.2d 1274, 1276 (1996).

Here, the PCRA court concluded that Moore's trial counsel, Attorney Jon A. Larkin, rendered ineffective assistance by permitting the introduction of evidence related to Moore's criminal history. Commonwealth witness, Police Lieutenant Thomas Salerno, testified that Moore's housemate had advised him that Moore was on probation or parole and that this information led the police to pull Moore's photograph from department files. N.T., January 10, 1990, at 59. Lieutenant Salerno also testified that Moore requested that his parole officer be present at the time he made his statement to the police. Id. at 53, 66. Additionally, Moore's parole officer, Steven Lucey, explained that Moore was released on parole in February 1989 and that he was present when Moore made his confession. Id. at 148-49, 155.

Attorney Larkin made no objection to this evidence. In fact, in his opening statement, Attorney Larkin described his client as a convicted felon who had spent much of his life in jail. Id. at 26. After Moore took the witness stand in his own defense, Attorney Larkin elicited testimony from Moore indicating that he had prior criminal convictions for aggravated assault, forgery, and two robberies. N.T., January 11, 1990, at 38-40. Moore further explained that he was currently on parole for robbery. Id. at 40. Attorney Larkin never requested nor did the trial judge give a cautionary instruction regarding the jury's use of the foregoing evidence.

Due to its prejudicial impact, evidence indicating that the defendant had previously been convicted of other crimes generally is not admissible, especially when offered to prove the character of the defendant or action in conformity with that character. Commonwealth v. Miles, 545 Pa. 500, 518, 681 A.2d 1295, 1304 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 1472, 137 L.Ed.2d 684 (1997); Commonwealth v. Ragan, 538 Pa. 2, 19, 645 A.2d 811, 819 (1994). However, evidence of other crimes may be admissible when the need for such evidence outweighs its prejudicial effects, such as when offered to prove motive, intent, absence of mistake, common plan or scheme, or the identity of the person accused. Miles, supra ; Commonwealth v. Fisher, 452 Pa.Super. 564, 576-78, 682 A.2d 811, 817 (1996), appeal denied, 546 Pa. 691, 687 A.2d 376 (1996).

Because the Commonwealth has not argued that Moore's criminal history falls into one of the exceptions related to other crime evidence, we are compelled to conclude that Moore's claim that trial counsel improperly permitted the introduction of evidence concerning his criminal history has arguable merit. The Commonwealth, however, contends that Attorney Larkin had a reasonable basis for his actions. The Commonwealth asserts that Moore's parole status needed to be introduced to explain parole officer Lucey's presence at Moore's confession and the manner in which the police obtained Moore's photograph. Moreover, the Commonwealth maintains that Attorney Larkin had a reasonable basis for eliciting testimony from Moore regarding his previous convictions because this questioning was part of a trial strategy to establish that, despite Moore's criminal history, he was not guilty of the crimes charged.

After reviewing the record, however, we conclude, as did the PCRA court, that the evidence relating to Moore's parole status had no probative value and carried a material prejudicial impact. Such evidence did not relate to the crimes charged and was not a necessary part of the Commonwealth's case. The manner in which the police acquired Moore's photograph would not assist the jury in evaluating the evidence, and contrary to the Commonwealth's assertion, it was not necessary to apprise the jury of Lucey's relationship with Moore. Rather, by permitting the Commonwealth to indicate that Moore was on parole, Attorney Larkin enabled the jury to infer that Moore had been involved in other criminal activity. This evidence would tend to lead a jury to conclude that Moore would be likely to have committed the crimes in question. See Commonwealth v. Sanchez, 407 Pa.Super. 234, 238-40, 595 A.2d 617, 620 (1991)(noting that references to the defendant as an illegal alien were prejudicial because they permitted the jury to infer that the defendant was prone to engage in criminal conduct).

Furthermore, while the Commonwealth could have introduced Moore's robbery and forgery convictions as crimen falsi to impeach Moore's testimony, Moore's aggravated assault conviction could not have been used for impeachment purposes. See generally Commonwealth v. Yarris, 519 Pa. 571, 588, 549 A.2d 513, 521 (1988)(noting that a witness may be impeached by evidence that he has prior crimen falsi convictions, meaning those that bear on a witness's honesty and truthfulness, such as robbery or theft). Though defense counsel may seek to introduce evidence of the defendant's prior convictions in an effort to prevent the prosecution from first bringing out such evidence on cross-examination of the defendant,...