Com. v. Ray

Citation751 A.2d 233
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Kenneth RAY Appellant.
Decision Date20 April 2000
CourtSuperior Court of Pennsylvania

Robert A. Crisanti, Pittsburgh, for appellant.

Michael W. Streily, Asst. Dist. Atty., and Robert A. Willig, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee. Before DEL SOLE, FORD ELLIOTT, JJ. and CIRILLO, President Judge Emeritus.


¶ 1 This is an appeal nunc pro tunc from a judgment of sentence of 10 to 20 years for Third Degree Murder and 1 to 5 years for Violation of the Uniform Firearms Act ("VUFA"). We vacate Appellant's judgment of sentence for the VUFA charge and remand for resentencing.

¶ 2 The facts of this case were summarized by the trial court as follows:

On August 21, 1993, Jerry Phifer, the victim in this particular matter, was driving a vehicle on Deary Street in the City of Pittsburgh. The victim was accompanied by a friend, Byron Johnson, a.k.a Chris Green. Upon noticing several individuals in the area, including the Defendant, the victim stopped the vehicle and proceeded to inquire whether or not the individuals were affiliated with a specific gang. This inquiry escalated into arguments and threats. The arguments and threats lead [sic] to the Defendant firing a gun in the direction of the victim. After the shots were fired the victim fell into the car such that half his body was in the car and half was outside the car. The other parties, including the Defendant, immediately left the scene. Byron Johnson found an officer nearby and requested assistance. Later, when questioned, Byron Johnson identified the Defendant as the shooter.1 The victim sustained a gunshot wound to the head and died soon thereafter. The official cause of death was a gunshot wound to the head. On August 22, 1993, the Defendant was mirandized and interrogated. The Defendant admitted his involvement in the shooting and provided a taped statement to that effect.

Opinion, 2/9/99, at 3.

¶ 3 Following a jury trial, Appellant was convicted of Third Degree Murder and VUFA. He was sentenced to 10 to 20 years' imprisonment on the Murder charge and a consecutive term of imprisonment of 1 to 5 years for the VUFA conviction. Appellant was subsequently granted the right to appeal nunc pro tunc and this appeal followed.

¶ 4 Appellant raises several claims on appeal. First, Appellant argues he is entitled to an arrest of judgment on the VUFA conviction because the Commonwealth failed to present sufficient evidence of the barrel length of the gun used to commit the instant crime. In addition, Appellant claims trial counsel was ineffective for failing to: 1) fully cross-examine prosecution witness, Byron Johnson, a.k.a. Chris Green, regarding his prosecutorial bias; 2) object to the jury instruction on flight where there was no evidence Appellant concealed his whereabouts or hid from police; and 3) object to the trial court's improper calculation of his prior record score in determining his sentence for VUFA.

¶ 5 We will first address Appellant's argument that the Commonwealth failed to present evidence of the gun's barrel length and, therefore, did not establish that the gun employed in the shooting was a "firearm" as that term is used in 18 Pa.C.S.A. § 6106.2

¶ 6 In reviewing a sufficiency of the evidence claim, the test we apply is whether the evidence, and all reasonable inferences taken from the evidence, viewed in the light most favorable to the Commonwealth as verdict-winner, were sufficient to establish all the elements of the offense beyond a reasonable doubt. Commonwealth v. Williams, 554 Pa. 1, 720 A.2d 679, 682 (1998) (citation omitted).

¶ 7 The term, "firearm," was defined at the time of the instant offense in 18 Pa. C.S.A. § 6102 as "[a]ny pistol or revolver with a barrel less than 15 inches, any shotgun with a barrel less than 18 inches." In the instant case, the Commonwealth's expert testified that the bullet recovered from the victim was a nine millimeter cartridge bullet and the markings on the bullet were "consistent with a nine millimeter Ruger automatic load pistol" which "generally has a barrel length of four to four and one-half inches." N.T., 2/1/95, at 146-147.

¶ 8 Appellant argues that based upon our supreme court's decision in Commonwealth v. Todd, 477 Pa. 529, 384 A.2d 1215 (1978), the expert's testimony was insufficient to establish the gun's barrel length. In Todd, the Commonwealth's expert testified the weapon used was "probably" a Smith and Wesson .38 caliber weapon but that he had "no idea" how long the gun's barrel might have been. The court held that absent any evidence indicating the gun's barrel length, the evidence was not sufficient to support appellant's firearms conviction. Unlike the expert in Todd, however, the expert in the instant case was able to identify both the type of gun used and its barrel length. Accordingly, we hold the evidence was sufficient to support Appellant's VUFA conviction.

¶ 9 Next, we turn to Appellant's claims of trial counsel's ineffectiveness. First, we note that trial counsel is presumed to be effective and Appellant has the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75, 81 (1990). In reviewing ineffectiveness claims, we must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If not, we need look no further since counsel will not be deemed ineffective for failing to pursue a meritless issue. Commonwealth v. Lennox, 250 Pa.Super. 80, 378 A.2d 462 (1977). If there is arguable merit to the claim, we will then look to see whether the course chosen by counsel had some reasonable basis aimed at promoting his client's interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). Further, there must be a showing that counsel's ineffectiveness prejudiced Appellant's case. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The burden of producing the requisite proof lies with Appellant. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). We cannot consider ineffectiveness claims in a vacuum; rather, appellant must set forth an offer to prove at an appropriate hearing sufficient facts to allow the reviewing court to conclude that counsel was ineffective. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Trial counsel's decision as to matters of trial strategy cannot form the basis of a finding of ineffectiveness. Commonwealth v. Blassingale, 398 Pa.Super. 379, 581 A.2d 183 (1990). Finally, appellant must show that, but for counsel's act or omission, there is a reasonable probability that the result would have been different. Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987).

¶ 10 Appellant asserts trial counsel was ineffective for failing to more fully cross-examine prosecution witness, Byron Johnson, who testified he was with the victim at the time of the shooting, about his pending juvenile court charges. The record shows that when asked by the prosecutor where he currently resides, Johnson responded that he had been arrested and was a resident at Schuman Center. On cross-examination, trial counsel inquired into the nature of Green's pending charges as follows:

Q: What type of charge are you currently in the juvenile court system for?
A: Well, it is a failure to adjust and drugs.
Q: And drugs?
A: Yes.
Q: What kind of drugs?
A: Crack.

N. T., 2/1/95, at 118-119.

¶ 11 Appellant argues Johnson was the only eyewitness to the shooting and, in light of the pending charges against Johnson, trial counsel was ineffective for failing to more fully cross-examine Johnson about his motive for testifying as a witness for the Commonwealth. While we are unable to discern any reasonable basis for trial counsel's failure to inquire into any motive Johnson may have had for testifying, Appellant fails to show how he was prejudiced by counsel's inaction.

¶ 12 The record shows trial counsel attacked Johnson's credibility by pointing out that when Johnson was originally questioned by police he gave a false name and identified...

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    ...we need look no further since counsel will not be deemed ineffective for failing to pursue an issue without merit. Commonwealth v. Ray, 751 A.2d 233, 236 (Pa.Super.2000) (citing Commonwealth v. Lennox, 250 Pa.Super. 80, 378 A.2d 462 Pa.R.Crim.P. 1101 provides as follows: In all cases, the d......
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  • Commonwealth v. Vallery
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    • Superior Court of Pennsylvania
    • February 28, 2023 31; Jennings, supra at 235. This Court has also previously credited expert testimony to establish barrel length in this context. See Ray, supra at 236 that evidence was sufficient where "the expert in the instant case was able to identify both the type of gun used and its barrel length")......
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    • Superior Court of Pennsylvania
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    ...(Pa. 1978), superseded by statute on separate grounds, Commonwealth v. Gillespie, 821 A.2d 1221, 1224 (Pa. 2003); Commonwealth v. Ray, 751 A.2d 233, 235-36 (Pa.Super. 2000). Appellant argues the Commonwealth failed to adduce any evidence that the weapon wielded by Appellant on the night in ......
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1 books & journal articles
  • Appeals
    • United States
    • James Publishing Practical Law Books Criminal Defense Tools and Techniques
    • March 30, 2017
    ..., 528 Pa. 417, 598 A.2d 963 (1991) Commonwealth v. Nolen , 535 Pa. 77 634 A.2d 192 (1993) Commonwealth v. Ray , 2000 Pa. Super. 126, 751 A. 2d 233 (2000) Commonwealth v. Rittle , 285 Pa. Super. 522, 425 A. 2d 168 (1980) Commonwealth v. Gray , 2005 Pa. Super 22, 867 A.2d 560 (2005) DePetris ......

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