Com. v. Neal

• Decision Date: 24 June 1998
• Citation: 713 A.2d 657
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kim Novak NEAL, Appellant.
• Court: Pennsylvania Superior Court

Page 657

713 A.2d 657

COMMONWEALTH of Pennsylvania, Appellee, v. Kim Novak NEAL, Appellant.

Superior Court of Pennsylvania.

Submitted March 30, 1998.

Filed June 24, 1998.

John A. Knorr, Pittsburgh, for appellant.

Robert A. Willig, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.

Before KELLY, STEVENS and HESTER, JJ.

HESTER, Judge:

Kim Novak Neal appeals from the order entered in the Court of Common Pleas of Allegheny County on November 1, 1996, which summarily dismissed her petition for relief pursuant to the Post Conviction Relief Act ("PCRA"). For the reasons set forth below, we affirm.

The facts and procedural history of this case may be summarized as follows. On the evening of August 6, 1990, in preparation for the execution of a search warrant, Allegheny County narcotics detectives approached a Duquesne residence. After the detectives knocked on the front door and announced themselves, they heard activity inside the dwelling. The detectives, who could see into the house, also noticed one of its occupants run up a staircase. Consequently, they forced open the door and entered the residence.

Detective Donald Stritmatter proceeded up the staircase, where appellant attempted to impede his way. Detective Stritmatter, who saw Randy Turner run down a hallway, forced his way past appellant and pursued Mr. Turner. The detective then kicked open a bathroom door and observed Mr. Turner as he attempted to flush forty-eight packets of heroin and a plastic bag containing one-half of an ounce of cocaine down the toilet. Detective Stritmatter kicked Mr. Turner aside and retrieved the drugs. Appellant and Mr. Turner were arrested, and the search of the dwelling began.

During the course of the search, detectives retrieved a New York newspaper, an item commonly associated with heroin shipments, from the living room. In the bedroom used by appellant and Mr. Turner, police recovered three baggie corners containing cocaine as well as materials used to prepare and package both heroin and cocaine for resale. From various locations in the house, including a drawer of appellant's dresser, the detectives confiscated large sums of money. Finally, they retrieved several documents evidencing appellant's occupation of the residence.

As a result of the search, appellant was charged with two counts of possession of a controlled substance, two counts of possession with intent to deliver, and one count each of possession drug paraphernalia and conspiracy. On July 10, 1991, appellant filed an omnibus pretrial motion seeking the suppression of certain evidence and the exclusion of proof relating to prior, but unspecified, convictions. Later, on November 4, 1992, appellant withdrew her omnibus motion and expressed her intention to proceed without a jury. Consequently, she filled out a written waiver form, and the trial court conducted a waiver colloquy. Trial on the matter then commenced.

On December 4, 1992, the trial court adjudicated appellant guilty of all counts. Challenging the sufficiency of the evidence supporting her convictions, appellant subsequently filed post-verdict motions. On February 18, 1993, the trial court denied appellant's request for post-verdict relief. The court then sentenced appellant to a term of imprisonment of five to ten years, ordered her to serve a consecutive two-year probationary period, and directed her to pay costs and a fine. We later affirmed the judgment of sentence. Commonwealth v. Neal, 435 Pa.Super. 649, 645 A.2d 891 (1994) (memorandum decision). On March 23, 1995, our Supreme Court denied further review, and appellant's judgment of sentence became final.

On February 2, 1996, while represented by new counsel, appellant petitioned for PCRA relief. ¹ Appellant subsequently filed an exhibit to that petition, and the trial court provided appellant with notice that it intended to dismiss the petition summarily. ² Later, after appellant responded to the notice, the trial court entered the contested order. This timely appeal followed.

When examining a post-conviction court's denial of relief, our scope of review is limited to a determination of whether the court's findings are supported by the record and are otherwise free of legal error. See, e.g., Commonwealth v. Gaskins, 692 A.2d 224, 226 (Pa.Super.1997). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id. Additionally, we note that there is no absolute right to a hearing pursuant to the PCRA. Rather, the post-conviction court may elect to dismiss a petition if it has thoroughly reviewed the claims presented and determined that they are utterly without support in the record. Id.

Commonwealth v. Schultz, 707 A.2d 513, 516 (Pa.Super.1997). However, if the facts alleged in the petition, if proven, would entitle the petitioner to relief, summary dismissal is inappropriate. See Commonwealth v. Granberry, 434 Pa.Super. 524, 644 A.2d 204 (1994). Keeping these principles in mind, we consider the propriety of the trial court's summary denial of relief.

The PCRA, which was amended effective January 16, 1996, "provides for an action by which persons convicted of crimes they did not commit and serving illegal sentences may obtain collateral relief." ³ 42 Pa.C.S. § 9542. In order to be eligible for relief, a post-conviction petitioner must plead and prove that the contested conviction or sentence resulted from one or more of the following circumstances:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States 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.

(ii) Ineffective 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.

(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.

(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.

(vii) The imposition of a sentence greater than the lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2). ⁴ In addition, the petitioner must plead and prove that the claim has not been litigated previously or waived. 42 Pa.C.S. § 9543(a)(3). An issue is considered waived if the petitioner could have raised it in prior proceedings but failed to do so. 42 Pa.C.S. § 9544(b).

In her first two claims, appellant challenges the trial court's disposition of matters related to her jury trial waiver. In presenting them, appellant proceeds on the premise that her omnibus pretrial motion informed the trial court that she previously had been convicted of offenses similar to those at issue. Thus, while acknowledging that she raises no complaint regarding the consideration of inadmissible evidence, appellant contends that the waiver of her constitutional right to a jury trial was involuntary since she was not informed that the court knew of her prior convictions or that a jury could not consider evidence relating to them. Similarly, appellant contends that trial counsel ineffectively failed to advise her of those matters.

Even if we assumed that the omnibus pretrial motion actually specified the prior crimes for which appellant was convicted and that the trial court reviewed the motion before its withdrawal, matters unsupported by the record, we would not disturb the trial court's disposition of either claim. Appellant's arguments contain no allegations indicating a link to the evidentiary process of the trial, and it is clear that the waiver of a jury trial has no impact upon either the burden of proof or evidentiary rules. See Commonwealth v. Piole, 431 Pa.Super. 391, 636 A.2d 1143 (1994). Therefore, the claims in question merely assert the existence of a constitutional violation and ineffective assistance of counsel without reference to the truth-determining process. Accordingly, they are not cognizable.

In her three remaining issues, appellant questions the appropriateness of the trial court's disposition of challenges relating to the effectiveness of trial counsel. The underlying claims relate to trial counsel's failure to object to certain evidence and to call a witness. Appellant also asserts that counsel ineffectively neglected to raise the former issue on direct appeal. ⁵ All of the challenges to counsel's effectiveness facially implicate the truth-determining process and thus, are cognizable. See Commonwealth v. Lantzy, 712 A.2d 288 (Pa.Super.1998) (en banc ) (truth-determining process not necessarily complete until the exhaustion of direct appeal rights); Commonwealth v. Dukeman, 413 Pa.Super. 397, 605 A.2d 418 (1992) (ineffectiveness claims which facially implicate truth-determining process cognizable). In addition, we note that none of the three claims has been litigated previously. Accordingly, we consider whether any of them has been waived.

As mentioned earlier, a claim is waived under the PCRA if it could have been raised previously but was not. Prior to the PCRA's amendment, a petitioner could overcome waiver by asserting his innocence or that the waiver occurred at a stage in the proceedings where a constitutional right to counsel existed. See 42 Pa.C.S. § 9543(a)(3)(i), (ii) (repealed). However, in the amended version of the PCRA, the legislature deleted those exceptions to waiver and added time constraints for seeking relief. See 42 Pa.C.S. §§ 9543(a)(3), 9545(b). Despite...