Com. v. Poplawski

• Decision Date: 04 June 2004
• Citation: 852 A.2d 323
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Chad Elliott POPLAWSKI, Appellee.
• Court: Pennsylvania Superior Court

852 A.2d 323

COMMONWEALTH of Pennsylvania, Appellant v. Chad Elliott POPLAWSKI, Appellee.

Superior Court of Pennsylvania.

Submitted March 15, 2004.

Filed June 4, 2004.

Lance T. Marshall, Asst. Dist. Atty., Bellefonte, for Com.

Jules Epstein, Philadelphia, for appellee.

Before: LALLY-GREEN, TODD, and CAVANAUGH, JJ.

LALLY-GREEN, J.

¶ 1 The Commonwealth appeals from the order entered on January 27, 2003, granting a new trial to Appellee Chad Elliott Poplawski under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.¹ We affirm.

¶ 2 On direct appeal, this Court summarized the factual and procedural history of the case as follows:

[Poplawski] and the victim, Ikechukwu Iregbulem, had a history of confrontations. In the late evening of January 28, 1999, [Poplawski] was taunting the victim at a nightclub. He told the victim that he knew where he lived and was "going to spray his crib", meaning he was going to shoot at his house. The victim and his friends then decided to leave. Then, [Poplawski] and his friend, [Andre] Cuadrado, who also had a history of altercations with the victim, decided to leave. While the victim and his friends were walking to their cars, [Poplawski] drove past them, honking his horn. The victim drove to his girlfriend's apartment, where he was staying, which was in the same complex as [Poplawski's], and his friends followed them. In the parking lot of the complex, [Poplawski] and his friend were waiting. An argument ensued which erupted into a physical altercation. Soon thereafter, everyone was fighting. [Poplawski] managed to break away and went to his apartment for his gun. The fight ended, and the victim and his friends were leaving in their vehicles, when [Poplawski] returned and shot at them with a semi-automatic, Russian military assault rifle. [Poplawski] and Cuadrado returned to [Poplawski's] apartment, where he was met by his roommate Vaughn Whiskers, who wanted no part of the situation. [Poplawski] then decided to hide the gun at his girlfriend's apartment. The neighbors, who had heard the shots, called the police. They questioned [Poplawski] and other witnesses. [Poplawski] told them about the verbal altercation, but denied everything else. The police did not arrest [Poplawski] at this time. [Poplawski] then tried to calm Whiskers by explaining the events to him. He claimed that he hadn't shot at anyone and he hoped that he hadn't hit anyone.

[Poplawski] was charged with criminal attempt, two counts of aggravated assault, terroristic threats, two counts of simple assault, reckless endangerment of another person, disorderly conduct and discharge of firearms. On August 26, 1999, the trial court granted the Commonwealth's Motion in Limine, which precluded [Poplawski] from presenting Whisker[s'] testimony about [Poplawski's] alleged state of mind. On September 1 and 2, 1999, a jury tried and convicted [Poplawski] of two counts of aggravated assault, terroristic threats, two counts of simple assault, recklessly endangering another person and disorderly conduct. The trial court sentenced [Poplawski] on October 5, 1999. He filed post-sentence motions, which the trial court denied.

Commonwealth v. Poplawski, 778 A.2d 737 (Pa.Super.2001) (unpublished memorandum) at 1-3 (citations omitted).

¶ 3 On direct appeal, Poplawski alleged that the trial court erred by: (1) not allowing him to present character witnesses on his behalf; (2) precluding him from presenting third-party testimony concerning his state of mind on the night of the shooting; and (3) allowing the Commonwealth to present a large volume of testimony concerning prior incidents among Poplawski, the victim, and others. Id. at 3-4. This Court rejected all three claims on the merits. On December 12, 2001, our Supreme Court denied Poplawski's petition for allowance of appeal. Commonwealth v. Poplawski, 568 Pa. 617, 792 A.2d 1253 (2001).

¶ 4 On April 26, 2002, Poplawski filed a timely PCRA petition. The PCRA court held an evidentiary hearing on August 21, 2002. Poplawski's trial counsel, James Heidecker, Esq., was the only witness to testify. During the hearing, Poplawski litigated many claims of trial counsel's ineffectiveness.

¶ 5 On January 27, 2003, the PCRA court granted a new trial to Poplawski on two independent bases. First, the PCRA court found that trial counsel was ineffective for eliciting evidence that after Poplawski was arrested, he dropped out of Penn State rather than testify about his case in front of a Penn State judiciary panel. The court found that the evidence constituted an improper reference to post-arrest silence. PCRA Court Opinion, 1/27/2003, at 12. Moreover, according to the PCRA court, trial counsel failed to take adequate steps to preclude the Commonwealth from exploiting this evidence in the prosecution's closing argument. The court concluded that the issue had arguable merit, that counsel had no reasonable explanation for his actions, and that the error was not harmless. Id.

¶ 6 Next, the PCRA court granted Poplawski a new trial based on counsel's failure to object to the Commonwealth's opening and closing statements. Specifically, the prosecutor advised the jury that acquitting Poplawski would send a message that the jury endorsed bringing guns into the community. Id. at 13. Again, the PCRA court found that the issue had arguable merit, that counsel had no reasonable basis for failing to object, and that the remarks prejudiced Poplawski by injecting bias and hostility toward him. Id. at 14-15. This appeal by the Commonwealth followed.²

¶ 7 The Commonwealth raises four issues on appeal:

1. Whether the two areas of alleged ineffectiveness attributed to trial counsel relating to his allowing or causing the referencing of petitioner's election to follow his university's advise [sic] and forego a school disciplinary hearing until after his criminal trial or the failure of counsel to object to or ask for curative instructions following comments made by the Commonwealth during its opening statement and closing argument must be deemed harmless error given the overwhelming evidence of guilt established by properly admitted and uncontradicted evidence?

2. Whether the [PCRA] court committed an abuse of discretion or error of law in determining that the revelation during his direct examination that the petitioner elected to withdraw from Penn State, upon advise [sic] from a Penn State official, and not participate in a school disciplinary hearing until after his trial, is the legal equivalent to referencing his exercising his Fifth Amendment right to remain silent while in police custody, during police interrogation or at the time of arrest subsequent to being given "Miranda" warnings?

3. Whether the [PCRA] court committed an error of law or an abuse of discretion in determining that certain comments made by the Commonwealth during the trial amounted to "prosecutorial misconduct"?

4. Whether the [PCRA] court committed an abuse of discretion or an error of law in concluding that certain comments made by the Commonwealth amounted to "prosecutorial misconduct" given the fact that the court had previously ruled to the contrary in its "post-sentence motion" opinion thereby violating the doctrine of the "law of the case"?

Commonwealth's Brief at 6-7.³

¶ 8 For ease of analysis, we will reorganize and restate the Commonwealth's issues as follows:

1. Did the prosecutor commit misconduct by advising the jury that an acquittal sends a message that the jury tolerates semiautomatic weapons in their community?

2. Assuming that the prosecutor committed misconduct, was Poplawski prejudiced by counsel's failure to object?

3. Did the PCRA court err by ruling that Poplawski's decision not to appear before a university panel constituted an improper reference to post-arrest silence?

4. Assuming that the evidence constituted an improper reference to post-arrest silence, was Poplawski prejudiced by counsel's actions?

Our standard of review is as follows:

When reviewing an order [granting or] denying PCRA relief, we must determine whether the PCRA court's determination is supported by the record and is free from legal error. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 586 (Pa.1999). To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Id. at 587. We presume counsel is effective and place upon Appellant the burden of proving otherwise. Commonwealth v. Howard, 2000 PA Super 86, 749 A.2d 941, 949 (Pa.Super.2000). Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim. Id. at 957.

Commonwealth v. Geathers, 2004 PA Super 111, ¶ 8, 847 A.2d 730.

¶ 9 First, the Commonwealth argues that the PCRA court erred in finding that the prosecutor committed misconduct in his closing argument. In essence, the Commonwealth argues that the claim of ineffectiveness for failing to object to the prosecutor's closing statement lacks arguable merit.

The standard for granting a new trial because of the comments of a prosecutor is a high one. Generally, a prosecutor's arguments to the jury are not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict. This standard permits us to grant a new trial based on the comments of a prosecutor only if the unavoidable effect of the comments prevented the jury from considering the evidence. A prosecutor must have reasonable latitude in fairly presenting a case to the jury and must be free to present his or her arguments with logical

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