Com. v. Smallwood

• Decision Date: 10 March 1982
• Citation: 442 A.2d 222,497 Pa. 476
• Parties: COMMONWEALTH of Pennsylvania v. Letitia Denise SMALLWOOD, Appellant.
• Court: Pennsylvania Supreme Court

Page 222

442 A.2d 222

497 Pa. 476

COMMONWEALTH of Pennsylvania v. Letitia Denise SMALLWOOD, Appellant.

Supreme Court of Pennsylvania.

Submitted Oct. 19, 1981.

Decided March 10, 1982.

[497 Pa. 480] Timothy J. O'Connell, Harrisburg, for appellant.

Edgar B. Bayley, Jr., Dist. Atty., for the Commonwealth.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.

OPINION OF THE COURT

O'BRIEN, Chief Justice.

Appellant, Letitia Denise Smallwood, was convicted of two counts of murder of the first degree and one count of arson in the Court of Common Pleas of Cumberland County. She was sentenced to life imprisonment for each count of murder and ten to twenty years for arson, the sentences to run concurrently. Following trial counsel's filing of boiler plate post-verdict motions, appellant obtained new counsel (hereinafter "appellate counsel") who represented her for the disposition of post-verdict motions and on direct appeal. Argument on post-trial motions was rescheduled four times, the first time pursuant to appellate counsel's request, the last three because he failed to appear. When appellate counsel failed to appear the fourth time, the trial court proceeded to decide post-trial motions, denying them on the merits on January 10, 1974. Two years later this Court affirmed the judgment of sentence. Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976).

Appellant, by new counsel, filed a petition in the Court of Common Pleas for relief under the Post-Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1, et seq. (hereinafter "PCHA"), alleging ineffectiveness on the part of trial counsel. She also alleged that appellate counsel was ineffective in not raising the claims on appeal. Subsequent to a hearing on October 5, 1979, the Court of Common Pleas denied relief. This appeal followed.

In the present case, a fire occurred at an apartment building at 11 North Pitt Street in Carlisle, Pennsylvania, during the early morning hours of August 29, 1972. The decedents, Paula Wagner and Steven Johnson were residents of the building. Wagner died of injuries received when jumping from the building. Johnson, unable to escape the flames, died from extensive burns.

The Commonwealth's evidence indicates that Richard Baltimore was living with Paula Wagner, deceased, and simultaneously dating appellant. Appellant resented the relationship between Baltimore and Wagner and made threats against them on a number of occasions. On August 23, 1972, appellant filed charges against Baltimore for assault and battery. Two days later she dropped the charges, relying on Baltimore's promise that he would stop seeing Wagner and, instead, live with appellant. Appellant rented a room at the James Wilson Hotel, which is located across the street from 11 North Pitt Street. Baltimore did not leave Wagner as he had promised, and the arguments and threats continued. At 1:58 a. m. on August 29, 1972, a false fire alarm occurred at the James Wilson Hotel. At 2:20 a. m., appellant was seen at the Hamilton Restaurant which was adjacent to 11 North Pitt Street. The alarm for the fire at 11 North Pitt Street was turned in at 2:54 a. m. Appellant was again seen at 3:15 a. m. in the vicinity of the fire.

Richard Baltimore, injured during the fire, required hospitalization. Appellant visited him at about 1:45 p. m. on August 29, 1972. A nurse testified that she saw appellant and that she was visibly upset and crying. Appellant stated, "It's my fault, it's my fault. I'm responsible for him being here." When the nurse asked her how she could be responsible for a fire, appellant became calm and said no more. This testimony was corroborated by an orderly who was also present. He, however, testified additionally that appellant stated, "it's because of me that the fire started."

Appellant testified that she had a good relationship with Baltimore and Wagner. She claimed she dropped the assault and battery charges against Baltimore because he was on parole and would be returned to jail. She also asserted that she was at the Hamilton Restaurant at 1:30 a. m. on the night of the fire and then returned to her room in the James Wilson Hotel and went to bed. She denied knowledge of the false alarm, but admitted making the above-described statement to the nurse. She explained that Baltimore would have been with her rather than in the burning building if they had not been arguing.

In this appeal from the denial of post-conviction relief, appellant alleges five instances of trial counsel's ineffectiveness, and concurrently argues that appellate counsel was ineffective in not alleging the errors in post-trial motions and on direct appeal. Although trial counsel testified at the PCHA hearing, appellate counsel had died prior to that date.

In order to obtain relief under the Post-Conviction Hearing Act, it is necessary "(t)hat the error ... has not been finally litigated or waived." PCHA § 3(d), 19 P.S. § 1180-3(d). An issue may not be finally litigated or waived, however, in a proceeding where counsel's representation is ineffective. Commonwealth v. Musser, 463 Pa. 85, 343 A.2d 354 (1975). Ineffective assistance of counsel is an extraordinary circumstance that justifies the failure to raise an issue. Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980); Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 894 (1973).

As we stated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

"... counsel'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."

Id. at 604-605, 235 A.2d at 352-353; Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981). Counsel is not ineffective in failing to assert a meritless claim. Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979). It is with these standards in mind that we review appellant's claims of ineffectiveness of trial and appellate counsel.

Appellant's first claim is related to her statement to the nurse on duty the day appellant visited Richard Baltimore in the hospital. The purpose of the nurse's testimony was undoubtedly to connect appellant, through her own admission, to the setting of the fire. This testimony was the first presented by the Commonwealth. Appellant asserts that the admission was proffered before the corpus delicti of arson was established. Thus, she argues, trial counsel was ineffective for not objecting to its admission at that time, and appellate counsel was ineffective for failing to raise the issue.

To establish the corpus delicti of an arson murder, the Commonwealth must show proof of death resulting from a fire of incendiary origin. Commonwealth v. Cockfield, 465 Pa. 415, 350 A.2d 833 (1976); Commonwealth v. May, 451 Pa. 31, 301 A.2d 368 (1973). "That the corpus delicti can always be proved by circumstantial evidence is unquestionable. (footnote omitted)" Commonwealth v. Leslie, 424 Pa. 331, 334, 227 A.2d 900, 902 (1967), quoting, Commonwealth v. Nasuti, 385 Pa. 436, 123 A.2d 435 (1956).

It is well-settled that "(u)ntil the corpus delicti is established, introduction of the accused's statement is inadmissible." Commonwealth v. Cockfield, supra; Commonwealth v. Moore, 466 Pa. 510, 353 A.2d 808 (1976); Commonwealth v. May, supra. A conviction must be reversed if it follows the admission of an inculpatory statement by the accused without proof of the corpus delicti. Commonwealth v. Leslie, supra.

However, it is also true that "the order of proof is a matter within the realm of (the trial judge's) judicial discretion which will not be interfered with in the absence of an abuse thereof." Commonwealth v. Burns, 409 Pa. 619, 627, 187 A.2d 552, 561-562 (1963). Even if defense counsel had objected to the admission of the statement, the Commonwealth subsequently did establish the corpus delicti and could have obtained the admission of the nurse's testimony thereafter. Therefore, the failure of defense counsel to object to the admission of the inculpatory statement was not prejudicial to appellant.

Appellant also argues that defense counsel erred in cross-examining Trooper Sweet, a deputy fire marshall, called by the Commonwealth as an expert. The witness' opinion as to whether or not the fire was of incendiary origin was not elicited on direct examination. Defense counsel, instead of declining to cross-examine the fire marshall and proceeding to move for a directed verdict at the proper time, chose to cross-examine the witness. Trial counsel's first two questions elicited an opinion from Trooper Sweet that the fire was definitely incendiary in origin.

Defense counsel's cross-examination of the deputy fire marshall was, at the time, reasonable. Perhaps, in retrospect, the tactic was unwise, but it was clearly reasonable for counsel to have attempted to elicit from the deputy fire marshall an admission that he was unable to determine whether the fire was of incendiary origin, thereby illustrating the Commonwealth's inability to establish the corpus delicti. "This Court will not substitute its determination for that of counsel, as to what course of action would have been more effective in promoting the client's interest." Commonwealth v. Blair, 491 Pa. 499, 507, 421 A.2d 656, 660 (1980). Furthermore, there was testimony by other witnesses that established the incendiary origin of the fire. ¹ Although the Commonwealth's redirect examination of the fire marshall detailed the relevance of other witnesses' testimony, the substantive testimony had been previously offered.

There is no merit to appellant's third argument that defense counsel was ineffective for failing to object to the trial court's charge. Appellant asserts that the charge was defective...