Com. v. Nichols

• Decision Date: 02 April 1997
• Citation: 692 A.2d 181
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Stephen Nelson NICHOLS, Appellant.
• Court: Pennsylvania Superior Court

Page 181

692 A.2d 181

COMMONWEALTH of Pennsylvania, Appellee, v. Stephen Nelson NICHOLS, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 9, 1996.

Filed April 2, 1997.

Peter T. Campana, Williamsport, for appellant.

Merritt E. McKnight, District Attorney, Lock Haven, for Commonwealth, appellee.

Before HUDOCK and EAKIN, JJ., and CERCONE, President Judge Emeritus.

EAKIN, Judge.

Stephen Nelson Nichols appeals from the order of the Court of Common Pleas of Clinton County denying his motion for relief under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. We affirm in part, vacate in part, and remand.

On June 8, 1991, Ronald Harter and Mark Larson went to appellant's house to retrieve debris that had fallen onto appellant's property from their truck. After the debris was removed, a fight ensued between appellant and Harter, which ceased when Larson intervened. Appellant returned to his house while Harter and Larson searched for their eyeglasses lost during the scuffle. Appellant reappeared with a baseball bat and ordered both men off his property; Larson said they would leave as soon as they found their glasses. In response, appellant said "you'll get your glasses," took the bat and struck Larson in the jaw near the bottom of his left ear. Harter and Larson fled, while appellant threw bricks at their departing vehicle. Harter suffered a broken nose, a broken ear drum and facial cuts. Larson's jaw was broken and was wired shut for six weeks, during which he was forced to eat through a straw.

Following a jury trial, appellant was found guilty of two counts of aggravated assault, ¹ one count of reckless endangerment, one count of criminal mischief, and one count of simple assault. On December 18, 1992, appellant was sentenced to prison for forty-eight to ninety-six months on the count of aggravated assault, 18 Pa.C.S. § 2702(a)(1), plus restitution, a $500.00 fine and costs; no separate sentence was imposed for the conviction under section 2702(a)(4). ²

Appellant filed a direct appeal; this court affirmed the judgments of sentence on December 3, 1993; our Supreme Court denied appellant's petition for allowance of appeal. On August 21, 1995, appellant filed a motion for PCRA relief, which was denied after an evidentiary hearing. This appeal followed.

Appellant claims (1) the evidence was insufficient to support his conviction under 18 Pa.C.S. § 2702(a)(1), (2) trial counsel was ineffective for failing to call character witnesses, (3) trial counsel was ineffective for failing to impeach Commonwealth witnesses, and (4) the trial court's instructions on aggravated assault were erroneous.

Appellant did not raise the claims of insufficient evidence and erroneous jury instructions in his direct appeal, but did properly raise them in his PCRA petition in the context of trial counsel's alleged ineffectiveness. However, these ineffectiveness claims are not set forth in appellant's brief in the statement of questions presented pursuant to Pa.R.A.P. 2116(a); they are tacked on the discussion of the substantive claims in the argument section of his brief and can be deemed waived. Commonwealth v. Mercado, 437 Pa.Super. 228, 250, 649 A.2d 946, 957 (1994) (when an appellant attempts to tack on claims of ineffective assistance of counsel without presenting them in the statement of questions presented, the ineffective assistance claims are waived); Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984) (same).

Since the ineffectiveness claims are waived, so are the substantive claims, since we can only reach them through properly raised allegations of trial counsel's ineffectiveness. Nevertheless, we may address a waived claim lest it arises in a subsequent PCRA petition raising the ineffectiveness of all prior counsel. See, e.g., Commonwealth v. Hackman, 424 Pa.Super. 526, 529, 623 A.2d 350, 351 (1993); Commonwealth v. Byrd, 409 Pa.Super. 611, 613-16, 598 A.2d 1011, 1012-14 (1991); accord Commonwealth v. Widmer, --- Pa. ----, 689 A.2d 211 (1997) (although Widmer failed to file post-sentence motion, Court overlooked technical waiver of weight of the evidence claim where trial court addressed it, found it meritorious but lacked jurisdiction to act upon it). Thus, we will address appellant's first and fourth claims as well as the related ineffectiveness claims.

In any ineffectiveness claim, appellant must first demonstrate the underlying claim has arguable merit, that counsel's action or inaction was not grounded on any reasonable basis designed to effectuate appellant's interest, and but for the act or omission in question, the outcome of the proceedings would have been different. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995). Counsel is never ineffective for failing to raise a meritless claim. Id. at 120-21, 661 A.2d at 358.

When a challenge to the sufficiency of evidence is made, our task is to determine whether the evidence and all reasonable inferences therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, was sufficient to enable the fact finder to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. Tapper, 450 Pa.Super. 220, 675 A.2d 740 (1996).

A person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under the circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S. § 2702(a)(1). Appellant claims the evidence failed to establish that victim Larson suffered "serious bodily injury," or that appellant possessed the requisite mental state.

"Serious bodily injury" is injury creating a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. 18 Pa.C.S. § 2301. Here, Larson's jaw was wired shut for six weeks during which he could only ingest through a straw. Suffering a broken jaw and being confined to a liquid diet constitutes impairment of the function of a bodily member. See Commonwealth v. Cassidy, 447 Pa.Super. 192, 200, 668 A.2d 1143, 1146 (1995), alloc. denied, 545 Pa. 660, 681 A.2d 176 (1996) (victim's wearing of removable braces on her wrist and back for two months comprised impairment of function of a bodily member).

Appellant's claim the evidence did not establish the requisite mens rea is without merit. A baseball bat, when swung at the head, can be a very deadly weapon, ³ and it is well settled the use of a deadly weapon on a vital part of the body is sufficient to establish a specific intent to kill. Commonwealth v. Carbone, 524 Pa. 551, 562, 574 A.2d 584, 590 (1990). Clearly, a specific intent to cause serious bodily injury can be inferred from the same circumstances. See Commonwealth v. Pandolfo, 300 Pa.Super. 447, 451, 446 A.2d 939, 941 (1982) (blows to a portion of the body as vital as the head exhibited intent to inflict serious bodily injury).

However, where the victim suffers serious bodily injury, the Commonwealth need not prove specific intent. Commonwealth v. Hlatky, 426 Pa.Super. 66, 626 A.2d 575 (1993), alloc. denied, 537 Pa. 663, 644 A.2d 1200 (1994); Commonwealth v. Magnelli, 348 Pa.Super. 345, 502 A.2d 241 (1985). The Commonwealth need only prove appellant acted recklessly under circumstances manifesting an extreme indifference to the value of human life. Hlatky, 426 Pa.Super. at 78, 626 A.2d at 581. "[F]or the degree of recklessness contained in the aggravated assault statute to occur, the offensive act must be performed under circumstances which almost assure that injury or death will ensue." Commonwealth v. O'Hanlon, 539 Pa. 478, 482, 653 A.2d 616, 618 (1995); Commonwealth v. Hickson, 402 Pa.Super. 53, 586 A.2d 393 (1990), alloc. denied, 527 Pa. 663, 593 A.2d 838 (1991). Swinging a bat into a person's head is just such a life-threatening circumstance. O'Hanlon, 539 Pa. at 482, 653 A.2d at 618. As the evidence was sufficient to prove at the very least the degree of recklessness required under 18 Pa.C.S. § 2702, trial counsel was not ineffective for failing on appeal to challenge the sufficiency of the evidence.

Appellant next claims trial counsel was ineffective for not calling character witnesses. While counsel can be found ineffective for failing to call character witnesses (see Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439 (1992)), appellant has failed to set forth an offer sufficient to allow this court to conclude counsel may have been ineffective.

To prevail on this claim, appellant must demonstrate (1) the witness existed, (2) the witness was available, (3) counsel knew or should have known about the witness, (4) the witness was prepared to cooperate and testify at trial, and (5) the absence of the testimony prejudiced appellant. Commonwealth v. Smolko, 446 Pa.Super. 156, 171, 666 A.2d 672, 679 (1995).

At the post-conviction hearing, appellant indicated he was able to produce numerous witnesses who could attest to his good character. Trial counsel testified he did, in fact, consider the possibility of presenting character witnesses, but decided they were not necessary since appellant presented himself as an honest and truthful person. Furthermore, counsel testified he did not want to "open a can of worms" by presenting character witnesses, i.e., allow the Commonwealth an opportunity to present evidence of appellant's bad character. Indeed, the verdict demonstrates counsel's strategy was correct. After listening to appellant's testimony, the jury acquitted him on those charges necessarily requiring a finding of intent and in which character was an issue. Clearly, the absence of character testimony did not prejudice appellant. Trial counsel's decision not to present character witnesses was a reasonable and apparently effective strategy and does not constitute ineffectiveness.

Appellant also complains of trial counsel's failure to...