Com. v. Reed

• Decision Date: 23 August 1994
• Citation: 435 Pa.Super. 304,645 A.2d 872
• Parties: COMMONWEALTH of Pennsylvania v. Michael REED A/K/A Michael R. Reed, Appellant.
• Court: Pennsylvania Superior Court

Page 872

645 A.2d 872

435 Pa.Super. 304

COMMONWEALTH of Pennsylvania v. Michael REED A/K/A Michael R. Reed, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 7, 1993.

Decided Aug. 2, 1994.

Reargument Denied Aug. 23, 1994.

Candace Cain, Asst. Public Defender, Pittsburgh, for appellant.

Maria V. Copetas, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before ROWLEY, President Judge, and McEWEN, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

ROWLEY, President Judge:

Appellant Michael Reed, while a juvenile, was charged with criminal homicide. He filed a petition pursuant to 42 Pa.C.S. § 6322(a) to have the homicide charge transferred to the juvenile division of the Court of Common Pleas. The trial court denied the petition after a hearing, and appellant was tried as an adult and convicted of murder in the first degree. Although he filed post-trial motions, they did not include a claim that the trial court erred in refusing to transfer the case to the juvenile division. We are now asked to decide, inter alia, whether appellant's failure to include the transfer claim in post-trial motions constitutes a waiver of the issue.

After careful review, we conclude that the issue has not been waived. Accordingly, we will address the issue along with the others raised by appellant. Concluding that none of appellant's claims entitles him to relief, we affirm the judgment of sentence.

The events that have culminated in this appeal began on April 18, 1990, when appellant and a co-defendant, Jackie Lee Williams, both seventeen years old, hailed a cab and were driven to their destination in the city of Pittsburgh. Upon arriving, they informed the cab driver, Thomas Law, that they did not have money with which to pay the fare. Predictably, a dispute ensued, with the result that appellant fatally shot Law and then searched Law's front pocket.

On April 19, 1990, a criminal complaint was filed against appellant in the criminal division of the Court of Common Pleas of Allegheny County, charging him with criminal homicide, 18 Pa.C.S. § 2501(a). At the same time, a juvenile delinquency petition was filed against appellant in the Court's juvenile division, charging him with the delinquent acts of robbery, 18 Pa.C.S. § 3701, aggravated assault 18 Pa.C.S. § 2702, and criminal conspiracy, 18 Pa.C.S. § 903. The Commonwealth filed a motion to transfer the juvenile petition to the criminal division and to consolidate the juvenile charges with the charge of homicide. The trial court granted the motion in an order entered July 9, 1990. A subsequent motion filed on appellant's behalf to transfer the case to the juvenile division was denied after hearings, as was a motion to suppress a statement taken from appellant.

Appellant went to trial before a jury on charges of criminal homicide, robbery, and criminal conspiracy. At the close of the Commonwealth's case, appellant's demurrer to the charge of criminal conspiracy was sustained. The jury found appellant guilty of murder in the first degree and robbery. In a motion for a new trial and arrest of judgment, appellant challenged the trial court's failure to sever his trial from that of his co-defendant, the admission into evidence of redacted statements of appellant and his co-defendant, the court's refusal to grant defense counsel's request for a mistrial after the co-defendant's redacted statement was heard, and the court's refusal of defense counsel's request that the jury be charged on the offense of voluntary manslaughter. Appellant's post-trial motion was denied, ¹ and a sentence of life imprisonment, mandatory for murder in the first degree, was subsequently imposed.

In this timely appeal from the judgment of sentence, appellant raises three issues:

1) Did the trial court err in not transferring the case to the juvenile division?

2) Was trial counsel ineffective for failing to object to the hearsay testimony provided by the Allegheny County coroner as to the legal cause of the victim's death, when the medical examiner who performed the autopsy did not testify at trial?

3) Was trial counsel ineffective for failing to object, before the jury retired to deliberate, to the trial court's refusal to charge the jury on voluntary manslaughter?

At the outset, we are required to determine whether appellant's first issue has been preserved for our review. Appellant's argument on the matter is as follows:

This issue was raised before trial in a Petition to Transfer. However, the issue was not raised in post-verdict motions, which would normally act as a waiver of the issue for appellate review. See, Pa.R.Crim.P., Rule 1123, 42 Pa.C.S. Nonetheless, this claim is properly before the court because a Motion to Transfer Criminal Proceedings to Juvenile Court presents a jurisdictional issue which cannot be waived for appellate purposes. Commonwealth v. Leatherbury, 390 Pa.Super. 558, 568 A.2d 1313 (1990), [appeal] denied, , 581 A.2d 570 (1990); Commonwealth v. Pyle, [462 Pa. 613, 342 A.2d 101 (1975) ]; Commonwealth v. Zoller, [345 Pa.Super. 350, 498 A.2d 436 (1985) ].

Brief for Appellant at 18 n. 3. ² According to the Commonwealth, the Supreme Court implied in Pyle that the issue was in fact non-jurisdictional, and statements of this Court to the contrary in Leatherbury and Zoller are inconsistent with Pyle and with statutory law as well. The Commonwealth also points out that the cases relied upon by appellant are distinguishable from his own by the fact that the defendants in the cited cases pled guilty, whereas "[i]n appellant's case, a full menu of pre-, mid- and post-trial procedures was available to challenge the [trial] court's exercise of discretion" (Brief for Appellee at 7). Waiver is the appropriate consequence of appellant's failure to raise the transfer issue in post-trial motions, the Commonwealth argues, because appellant's omission has resulted in the absence from the record of "either the written reflections of the hearing judge who observed the witnesses and assessed their demeanor and credibility or contemporaneous findings of fact and conclusions of law" (Brief for Appellee at 7), and this Court is therefore unable to conduct a meaningful appellate review of appellant's claim.

To resolve this threshold matter, ³ we turn first to the Supreme Court's opinion in Commonwealth v. Pyle, supra. In that case, the seventeen-year-old appellant was arrested for the shooting death of his father and charged with criminal homicide. He petitioned the trial court to transfer the matter to the juvenile division, and a rule was issued upon the district attorney to show cause why the case should not be transferred. At the same time, the Commonwealth filed a juvenile charge of theft against appellant and petitioned the court to transfer that charge to the criminal division of the court. After a hearing, the trial court discharged the rule and granted the Commonwealth's petition for transfer of the theft charge. Appellant then pled guilty to both criminal charges and was sentenced to a term of imprisonment of six to sixteen years.

Appellant argued on appeal that the trial court had "erred in determining that there were reasonable grounds to believe he was not amenable to treatment, supervision or rehabilitation within the juvenile court system." Id. at 617, 342 A.2d at 103. Concluding that the burden is upon the juvenile charged with murder to show that he does not belong in the criminal division, and that appellant had failed to meet that burden, the Supreme Court affirmed the judgment of sentence.

For the purposes of this appeal, our interest is not in the Court's ruling on the merits of appellant's claim, but in the reasoning by which the Court found the issue to have been preserved for appellate review:

Absent unusual circumstances, a guilty plea constitutes a waiver of any non-jurisdictional defects or defenses. However, since one of the prime purposes of the Juvenile Act is to spare from adult punishment certain youths whose behavior would necessarily render them guilty of adult crimes (including in some instances, the crime of murder) and since the decision to, or not to transfer is interlocutory--11 P.S. 50-325(f)--and thus only appealable after sentencing[,] we find the instant challenge to be properly preserved.

Id. at 617 n. 4, 342 A.2d at 101 n. 4 (emphasis in original; citations omitted).

This Court cited the statement quoted above in its opinions in Zoller, supra, and Leatherbury, supra. The two juvenile defendants in Zoller were charged with first and second degree murder and agreed to plead guilty to third degree murder after the trial court denied their petition for transfer to the juvenile division. As to the Commonwealth's request that the defendants, as part of the plea agreement, withdraw their motion for transfer, this Court noted that

[i]t was, however, correctly determined during the colloquy that the Motion for Transfer was a jurisdictional issue and, therefore, not waivable. See Commonwealth v. Pyle, [supra].

Id. 345 Pa.Super. at 353, 498 A.2d at 438. On appeal, the defendants asserted that the trial court erred in denying the requested transfer to the juvenile division. This Court affirmed the trial court's order.

The events in Leatherbury followed a similar course. The juvenile defendant was charged with third degree murder; the trial court denied his request to transfer the case to the juvenile division; and the defendant pled guilty, was sentenced, and appealed, challenging the trial court's refusal to transfer the case. This Court found the claim to be properly before it because "a motion to transfer criminal proceedings to juvenile court presents jurisdictional issues which are not waived for appellate purposes. Commonwealth v. Pyle, [supra]; Commonwealth v. Zoller, [supra]." Id. 390 Pa.Super. at 560, 568 A.2d at 1315. As in Zoller, this Court found no abuse of discretion in the trial court's decision to...