Com. v. Pirela

• Decision Date: 26 September 1990
• Citation: 398 Pa.Super. 76,580 A.2d 848
• Parties: COMMONWEALTH of Pennsylvania v. Heriberto PIRELA, Appellant.
• Court: Pennsylvania Superior Court

Page 848

580 A.2d 848

398 Pa.Super. 76

COMMONWEALTH of Pennsylvania v. Heriberto PIRELA, Appellant.

Superior Court of Pennsylvania.

Submitted May 21, 1990.

Filed Sept. 26, 1990.

James S. Bruno, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.

Before CIRILLO, President Judge, and HOFFMAN and BROSKY, JJ.

HOFFMAN, Judge:

This appeal is from the judgment of sentence for second degree murder, robbery, and criminal conspiracy. Appellant contends that: (1) trial counsel was ineffective; (2) there was insufficient evidence to convict him; and (3) the trial court erred in denying a motion for a mistrial after the prosecutor told a witness he would be jailed if he failed to testify. ¹ For the following reasons, we affirm.

On July 6, 1983, appellant was arrested and charged in connection with the August 15, 1982 shooting of Ignacio Slafman during the robbery of a pizzeria. After a bench trial with a co-defendant on March 19, 1984, appellant was found guilty of the above-mentioned crimes. On March 21, 1984, post-verdict motions were filed in which appellant reserved the right to file additional reasons to support his claims when the notes of testimony were made available. On March 27, 1985, supplemental post-verdict motions were filed. After denying appellant's motions, the trial judge sentenced appellant to life imprisonment for murder, and five to ten years imprisonment for criminal conspiracy, those sentences to run consecutively. ² Although a timely appeal was filed, counsel failed to timely file a brief, and the appeal was dismissed. Subsequently, appellant filed a petition under the Post Conviction Hearing Act ³ and a pro se petition to appoint new counsel. Present counsel was appointed, and, thereafter, appellant sought leave to appeal from the judgment of sentence, nunc pro tunc. The trial court granted the request, and this timely appeal followed.

Appellant contends that trial counsel was ineffective for (1) failing to request permission to file supplemental post-verdict motions; and (2) failing to object to the admission into evidence of co-defendant's statement, or alternatively, request a severance. We shall address these claims, seriatim.

On appellate review, counsel is presumed to be effective, Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987), and the burden rests with appellant to overcome that presumption. Commonwealth v. Jones, 298 Pa.Super 199, 205, 444 A.2d 729, 732 (1982). To prevail on a claim of ineffectiveness, appellant must show that his contention has arguable merit, that trial counsel's course of action had no reasonable basis designed to serve his interests, and that counsel's conduct prejudiced him. Commonwealth v. Pierce, supra; see also Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Appellant first argues that trial counsel's failure to request permission on the record to file supplemental post-verdict motions rendered his assistance ineffective. We disagree.

If trial counsel fails to request permission on the record to file supplemental post-verdict motions, ⁴ but the trial court, nonetheless, addresses the issues on the merits, then the issues are not waived. See Commonwealth v. Hewett, 380 Pa.Super. 334, 338, 551 A.2d 1080, 1082 (1988) (characterizing Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (Table) (1988) (per curiam)), appeal denied, 522 Pa. 583, 559 A.2d 526 (1988). Therefore, issues in untimely filed post-verdict motions that were not treated as waived by the trial court will not be considered waived for purposes of appeal. See Commonwealth v. McBride, 391 Pa.Super. 113, 117-19, 570 A.2d 539, 541 (1990); Commonwealth v. Hewett, supra.

Here, there is no reason for us to conclude that the trial court considered any of appellant's issues waived. The trial court opinion addressed issues contained in the supplemental post-verdict motions. See Trial Court Opinion at 2. Although the trial court did not write on each claim contained in the supplemental post-verdict motions specifically, the court did consider and deny each issue. Because the trial court addressed the merits of the issues in the supplemental post-verdict motions, the issues are preserved for appeal. Accordingly, appellant's claim that counsel was ineffective for failing to request permission on the record to file supplemental post-verdict motions lacks arguable merit.

Appellant next contends that trial counsel was ineffective for failing to object to the admission of his co-defendant's redacted statement or, alternatively, to request a severance. Although appellant's argument is somewhat confusing, he apparently relies on the United States and Pennsylvania Constitutions to argue that absent a face-to-face confrontation, the use of a co-defendant's statement, regardless of the sufficiency of redaction, should be precluded. See Appellant's Brief at 19. We disagree.

As appellant himself acknowledges, a co-defendant's statement may be sufficiently redacted so as to be admissible. See Commonwealth v. Rawls, 276 Pa.Super. 89, 419 A.2d 109 (1980). Indeed, it is well-established that a co-defendant's edited statement is admissible if it retains its narrative integrity and yet in no way implicates the defendant. Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977); Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980); Commonwealth v. Rawls, supra.

Here, appellant argues that the statement was not properly redacted even though no reference was made to him. ⁵ See N.T. March 19, 1984 at 7-9. The statement, as read, referred to, and implicated, several people by name, including the co-defendant. The statement also referred to one person as "X". As the Commonwealth aptly notes, the statement never identified or inculpated appellant. Furthermore, we find no evidence that the statement was introduced against appellant. On this record, we are satisfied that the trial judge, sitting as fact-finder, considered this statement against co-defendant only, and that it could not have worked to prejudice appellant. Therefore, we find no ineffectiveness in trial counsel's failure to object to the introduction into evidence of co-defendant's statement.

Appellant next argues that trial counsel was ineffective for not requesting a severance. This claim is meritless. The decision of whether to grant a severance is within the discretion of the trial court, and the trial court's decision in this regard will not be reversed absent an abuse of discretion. Commonwealth v. Patterson, 519 Pa. 190, 197, 546 A.2d 596, 599 (1988); see also Commonwealth v. Morales, 508 Pa. 51, 61, 494 A.2d 367, 372 (1985). Furthermore, without a showing of real potential for prejudice our general policy is to encourage joinder of offenses. Commonwealth v. Patterson, supra.

In the case at bar, the statement was adequately redacted and admitted against co-defendant, and there is no reason for us to believe that the trial court considered it for an improper purpose. As noted above, the possibility of prejudice to appellant under these circumstances is minimal. Thus, this claim lacks arguable merit, and we find no ineffectiveness by trial counsel for his failure to request a severance.

Appellant's next contention is that the evidence was insufficient to support his convictions. However, because appellant simply challenges the credibility of a witness, Heriberto Colon, see Appellant's Brief at 6-8, and does not explain which elements of which offenses were insufficiently supported by evidence, his claim is more properly characterized as a weight of the evidence challenge. We will address it as such. ⁶

In reviewing a weight of the evidence claim we look to see if the "verdict was so contrary to the evidence as to shock one's sense of justice and make the award of a new trial imperative." Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989) (citations omitted). ⁷ The decision whether to grant a new trial is within the trial court's discretion, and we review that decision based upon an abuse of discretion standard. Id. Furthermore, since issues of credibility are left to the trier of fact, the trial court, sitting as fact finder, was free to accept all, part, or none of a witness's testimony. See Commonwealth v. Farquharson, 467 Pa. 50, 59, 354 A.2d 545, 550 (1976).

In this case, appellant claims that Heriberto Colon's testimony was "inconsistent" and "unreliable." See Appellant's Brief at 7. However, the court's verdict reflects that it chose to credit Mr. Colon's testimony. In addition, we note that the Commonwealth presented other witnesses who also implicated appellant and corroborated, in part, Mr. Colon's testimony on direct examination. See N.T. March 13, 1984 at 4-5, 29-32, 59. Therefore, the trial court's determination here is not so contrary to the evidence as to shock our sense of justice.

Appellant's final contention is that the trial court erred in denying a motion for a mistrial when the prosecution told a Commonwealth witness, Miguel Bones, that the court would jail him for refusing to testify. ⁸ We disagree.

The decision of the trial court to deny a motion for mistrial will not be disturbed absent an abuse of discretion. Commonwealth v. Al Hamilton Contracting Co., 383 Pa.Super. 429, 434, 557 A.2d 15, 18 (1989) (citation omitted), allocatur denied 523 Pa. 640, 565 A.2d 1165 (1989); see also Commonwealth v. Potts, 314 Pa.Super. 256, 274, 460 A.2d 1127, 1136 (1983). If we deem that the prosecutor's remarks worked to prejudice appellant, i.e. had an adverse effect upon the outcome of the proceedings, we must find an abuse of discretion. See Commonwealth v. Al Hamilton Contracting Co., supra; see also Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988) (citations omitted).

The record reveals that Mr. Bones refused to answer or acknowledge several of the Commonwealth's questions when he was first called to...