Com. v. Quarles

• Decision Date: 03 March 1987
• Citation: 522 A.2d 579,361 Pa.Super. 272
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kevin QUARLES, Appellant.
• Court: Pennsylvania Superior Court

Page 579

522 A.2d 579

361 Pa.Super. 272

COMMONWEALTH of Pennsylvania, Appellee, v. Kevin QUARLES, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 19, 1986.

Filed March 3, 1987.

Peter J. Scuderi, Philadelphia, for appellant.

Marilyn F. Murray, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.

OLSZEWSKI, Judge:

Appellant, Kevin Quarles, was convicted of second degree murder, two counts of robbery, and possession of an instrument of crime after a jury trial in the Court of Common Pleas of Philadelphia County. On appeal, appellant raises the following issues: (1) whether the trial court erred in failing to give jury charges on the effect of both prior felony convictions and prior inconsistent statements on a witness's credibility; (2) whether the trial court erred in permitting the jury to be asked death qualification questions; (3) whether appellant's trial counsel rendered ineffective assistance of counsel; and (4) whether the evidence introduced at trial was sufficient to support the jury's verdict. For the reasons stated below, we affirm the judgment of sentence.

Appellant's arrest and subsequent conviction resulted from an incident occurring on September 21, 1984 in McMichael Park in Philadelphia. The incident is aptly described in appellee's brief as follows:

The trial evidence established that on September 21, 1984, at approximately 10:30 p.m., defendant, Markel Lewis, and the murder victim, William Sellers, were walking through McMichael Park in Philadelphia looking for a party, when they came upon Thomas Kelly and Michael Rapone, who were sitting on a park bench drinking beer (N.T. 5/16/85, 1.93; 5/17/85, 31-32; 5/20/85, 3.14). They asked Kelly and Rapone about the party, but they knew nothing about it, and the five men talked for approximately one half hour (N.T. 5/16/85, 1.94-1.95; 5/17/85, 33-34; 5/20/85, 3.15). When Kelly said he would have to leave for work and Rapone stated he would go along with him, defendant pulled out a handgun and ordered all four men to raise their hands (N.T. 5/16/85, 1.97; 5/17/85, 37; 5/20/85, 3.16-3.17). Defendant then ordered the four men over to a clump of trees in the middle of the park, where he made then lie face down on the ground (N.T. 5/16/85, 1.97-1.99; 5/17/85, 37-39; 5/20/85, 3.17-3.18). After threatening to shoot Kelly, defendant took $3 from him, along with his keys, watch and wallet, shoved his face in the mud and kicked him in the head and ribs (N.T. 5/17/85, 40-43). Defendant then tied Rapone's hands behind his back with his belt and kicked Lewis and Sellers (N.T. 5/16/85, 1.102; 5/17/85, 44; 5/20/85, 3.21). During the course of the attacks, defendant fired two shots into the ground (N.T. 5/16/85, 1.101, 1.104; 5/17/85, 44-45). As Sellers pleaded with defendant to let him leave because he had two children and a wife, defendant pushed the gun to his head and shot him, killing him (N.T. 5/20/85, 3.23, 3.69).

Officer Stephanie Day, who was making a traffic stop near McMichael Park, heard the three shots at approximately 11:25 p.m. and proceeded to the park to investigate, where she found Kelly running towards her car for help and Rapone running around the park with his hands tied behind his back (N.T. 5/16/85, 1.29-1.39). Officer Robert Kerwin then arrived on the scene and with a spotlight, spotted the body of William Sellers lying face down on the ground in a pool of blood, with a bullet wound under the right eye (N.T. 5/16/85, 1.69-1.71).

Appellee's brief at pp. 1-3 (footnote omitted). After denial of his post-verdict motions, appellant filed the present appeal.

Appellant first contends that the trial court erred by not charging the jury about the effect of prior inconsistent statements and prior felony convictions on a prosecution witness's credibility. Specifically, appellant asserts that the trial court erred in failing to charge the jury that the testimony of Markel Lewis (a prosecution witness) should be received with caution since on a previous occasion he made statements inconsistent with his statements during his in-court testimony. Appellant further maintains that the trial court erred by failing to charge the jury on the effect of Mr. Lewis's felony convictions on his credibility.

We, however, find that appellant's first contention is waived since appellant's counsel failed to make any objection on these points after the trial judge charged the jury. ¹ "Pennsylvania Rule of Criminal Procedure 1119(b) ² states that no charge nor omission can be ruled erroneous unless objections are made prior to jury deliberation." Commonwealth v. Fisher, 342 Pa.Super. 533, 541, 493 A.2d 719, 723 (1985) (footnote added). See also Commonwealth v. Larkins, 340 Pa.Super. 56, 67, 489 A.2d 837, 842 (1985) ("The reason (sic) for requiring specific objections after the charge, even where points for charge had previously been proposed, are apparent. Primarily, it ensures that the court is given opportunity to avoid error.").

Appellant next contends that the trial court erred in permitting the jury to be asked death qualification questions. Appellant argues the death qualification procedure resulted in a jury that was more conviction-prone. In addition, appellant also maintains the death qualification procedure produced a jury that did not contain a representative cross-section of the community. We, however, find appellant's contention to be meritless. The Pennsylvania Supreme Court has "held that death qualification does not deprive the defendant of a fair determination of guilt or innocence." Commonwealth v. Colson, 507 Pa. 440, 453, 490 A.2d 811, 817-818 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). See also Commonwealth v. Maxwell, 505 Pa. 152, 165, 477 A.2d 1309, 1316 (1984) ("Simply questioning potential veniremen on their position regarding the death penalty, or excluding those who are strongly opposed to it and cannot impose it under any conditions, does not necessarily produce a prosecution oriented jury.").

In addition, the United States Supreme Court, in a recent decision, Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), held that the Constitution does not prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trtial. Id. at 1760. The Supreme Court also held that, even assuming "death qualification produces juries somewhat more conviction-prone than non-death qualified juries, ... the Constitution does not prohibit the States from 'death qualifying' juries in capital cases." Id. at 1764. Two reasons support the Court's latter holding permitting states to death-qualify juries in capital cases. First, the Court stated "groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors ... are not 'distinctive groups' for fair cross-section purposes." Id. at 1765. Second, the Court also noted that an "impartial jury consists of nothing more than jurors who will conscientiously apply the law and find the facts." Id.

Appellant also contends that he received ineffective assistance of counsel at trial. Appellant argues that his trial counsel rendered ineffective assistance by failing to request an accomplice charge for Markel Lewis, by failing to object to the trial court's jury instructions on identification, and by failing to object to the trial court's charge on alibi.

The appellate standard of review to be applied to claims of ineffective assistance of counsel was recently enunciated by the Pennsylvania Supreme Court in Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). The Court noted:

This Court recently reiterated the appellate standards for reviewing claims of ineffective assisstance of counsel; in Commonwealth v. Anderson, 501 Pa. 275, 286, 461 A.2d 208, 213 (1983), we stated: We remain guided by the standards first articulated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 609-606, 235 A.2d 349, 352-353 (1967):

(C)ounsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel decisions had any reasonable basis. Moreover, counsel will not be deemed ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Arthur, 488 Pa. 262, 265, 412 A.2d 498 (1980). It is only when the claim which has been forgone is of arguable merit that further inquiry must be made into the basis for counsel's decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 696 (1977).

Additionally, because counsel's stewardship of the trial is presumptively effective, the burden of establishing counsel's ineffectiveness rests upon the defendant.

Id. at 614-615, 487 A.2d at 805-806. Furthermore, in Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986), the Pennsylvania Supreme Courts, in discussing the above standards, stated, "(I)mplicit in these standards is the requirement that the defendant must demonstrate that he was harmed by his attorney's alleged ineffective assistance." Id. 511 Pa. at 566, 515 A.2d at 871.

In the instant case, appellant's contention of his trial counsel's ineffectiveness by failing to object to the judge's Kloiber charge ³ on identification is waived. In his post-verdict motions, appellant asserts only his trial counsel's ineffectiveness...