Com. v. Thomas

• Decision Date: 11 July 1990
• Citation: 578 A.2d 422,396 Pa.Super. 92
• Parties: COMMONWEALTH of Pennsylvania v. Charles Lamont THOMAS, a/k/a Charles Lamount, Appellant.
• Court: Pennsylvania Superior Court

Page 422

578 A.2d 422

396 Pa.Super. 92

COMMONWEALTH of Pennsylvania v. Charles Lamont THOMAS, a/k/a Charles Lamount, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 18, 1989.

Filed July 11, 1990.

Cuthbert A. Johnson, Pittsburgh, for appellant.

Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com.

Before CAVANAUGH, WIEAND and KELLY, JJ.

KELLY, Judge:

In this case we are called upon to determine whether a second PCRA petition ¹ must be reviewed under the standard of Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), when the second PCRA petition is identical to a first PCRA petition dismissed on grounds of procedural default, except in raising a claim of ineffectiveness with respect to prior PCRA counsel's procedural default. We find that a second petition must be treated as a first petition nunc pro tunc in such circumstances, and falls outside the ambit of the restrictive standard for review of second or subsequent PCRA petitions set forth in Commonwealth v. Lawson, supra.

We are also called upon to determine whether prior counsel provided ineffective assistance in failing to raise and preserve an objection to a portion of police "course of conduct" hearsay testimony which indicated a third party who did not testify at trial, knew appellant, was present when the offense occurred, and identified appellant as the perpetrator. We agree with appellant that the course of conduct testimony constituted impermissible oblique narrative, that counsel was ineffective in failing to raise and preserve an objection to that evidence, and that counsel's ineffectiveness in this respect was of a type which would undermine one's confidence in the reliability of the verdict. Consequently, we reverse, vacate judgment of sentence, and remand for a new trial.

The following evidence was adduced at trial. Brooker Greene, age 60, testified that on December 14, 1987, at around 8:00 p.m. he experienced car trouble while driving alone in the Hill district of Pittsburgh. About twenty-five minutes after stopping to identify the problem, two young men, whom Mr. Greene did not know, approached the car and offered their assistance. The two strangers worked on Mr. Greene's car for about 30 minutes before the heavier of the two men got into the car and explained that he was going to check "how the brakes were." N.T. 6/23/88 at 24. The heavier man then started it and drove away. The slighter of the two men, who identified himself as Dale Harris, assured Mr. Greene of the return of his car, and waited with Mr. Greene for roughly an hour (until about 10:00 p.m.) before summoning the police. The car was not returned.

The police who responded testified that after arriving at the scene, they questioned both Mr. Greene and Dale Harris, who had remained with Mr. Greene to inform the police of the heavier man's identity after the car was not returned. Harris named appellant as the man who stole Mr. Greene's car, and provided them with an address at which appellant resided. The police later verified this address by speaking to a woman at that residence who identified herself as appellant's mother. Based on this evidence, the police subsequently arrested appellant and charged him with one count of Theft by Unlawful Taking or Disposition, one count of Unauthorized Use of an Automobile and one count of Criminal Mischief.

At trial, Mr. Greene positively identified appellant as the man who stole his car. ² Dale Harris did not testify. The jury found appellant guilty of Theft by Unlawful Taking and Unauthorized Use of an Automobile. Post-trial motions were argued and denied. Appellant was sentenced to 2 1/2 to 7 years incarceration. No direct appeal from the judgment of sentence was filed.

Appellant, thereafter, filed a PCRA petition pro se. After appointing new counsel to represent appellant, the court denied his petition for relief. Although notice of appeal from this denial was filed, counsel for appellant failed to file briefs in support of the appeal. Consequently, this Court dismissed that appeal, without prejudice.

Finally, after appointment of third counsel, appellant filed a second petition for post conviction relief, identical in all respects to his first. Finding no distinction in the subsequent petition, the lower court denied this petition on the same grounds as the first. An appeal of that order is now before us. ³

Initially we must determine the appropriate standard for reviewing this claim. Although this is technically an appeal from appellant's second petition for post-conviction relief, under the peculiar circumstances from which this appeal arises, the standard for reviewing ineffective assistance of counsel claims espoused in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988) does not apply. In Lawson, after observing that "a second post-conviction appeal should be the exception, not, as is presently the case, the rule," 549 A.2d at 110-11, our Supreme Court held,

Today we have reached a consensus which proved so elusive in Commonwealth v. Alexander, [495 Pa. 26, 432 A.2d 182 (1981) ] and Commonwealth v. Watlington, [491 Pa. 241, 420 A.2d 431 (1980) ]. This accommodation has been reached by the realization that we cannot permit our continuing concern for assuring that persons charged with crime receive competent representation in their defense to be exploited as a ploy to destroy the finality of judgments fairly reached. We therefore conclude that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.

Id. at 111-12 (emphasis added); Commonwealth v. Hagood, 516 Pa. 340, 532 A.2d 424 (1987); see also Commonwealth v. Miller, 375 Pa.Super. 437, 441-42, 544 A.2d 1000, 1001-1003 (1988) (per Kelly, J.; discussing Hagood, supra; Alexander, supra; and Watlington, supra ).

Here, unlike in Lawson, appellant's first request was denied, due to counsel's procedural default, without prejudice. Appellant, in his second petition for relief, merely seeks review of the merits of the exact claim asserted in his first. The purpose for applying the Lawson standard, i.e. to discourage the exploitation of the post-conviction review process, is not furthered here. Moreover, to apply a more rigorous standard to an appeal following dismissal based on counsel's failure to file timely briefs would be inconsistent with the reasoning of holdings in this Court which provide nunc pro tunc relief where procedural non-compliance was due to counsel's default. See Commonwealth v. Ciotto, 382 Pa.Super. 458, 555 A.2d 930 (1989) (failure to file briefs constitutes per se ineffectiveness); Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989) (same). Cf. Commonwealth v. Albert, 522 Pa. 331, 334, 561 A.2d 736, 738 (1989) ("Where counsel's representation is deemed to be inadequate, it is inappropriate to allow the proceedings in which it was rendered to be binding on the defendant's rights."). Hence, we find the Lawson standard inapplicable herein.

The appropriate standard of review here is the same as that of claims asserting ineffective assistance in initial post-conviction relief attempts. In this regard, the PCRA provides in pertinent part:

(a) General rule.--To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:

* * * * * *

(2) That the conviction or sentence resulted from one or more of the following:

(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

42 Pa.C.S.A. § 9543(a). (Emphasis added). The emphasized portion of the PCRA provision adds an additional requirement not present in its predecessor provision in the PCHA. Under the PCRA a petitioner must not only establish ineffective assistance of counsel, petitioner must also establish that the ineffectiveness was of a type "which in the circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilty or innocence could have taken place." This is a substantial restriction of the grounds for post-conviction collateral relief in Pennsylvania.

The new statute mandates a two step analysis. First, we must apply the well-settled three prong standard for ineffectiveness to determine if counsel was ineffective. Second, we must determine if any ineffectiveness proven so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.

The standard for determining if counsel was ineffective is well settled:

In order to establish a claim of ineffectiveness, appellant must establish that: by act or omission counsel was arguably ineffective; counsel's act or omission could not have had a reasonable basis designed to effectuate appellant's interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Pierce, 515 Pa. 153 [157-158], 527 A.2d 973, 975-76 (1987); see also Commonwealth v. Johnson, 516 Pa. 407, , 532 A.2d 796, 799 (1987). ("The standard of review is that there must be a reasonable probability that but for counsel's unprofessional errors, the result of the trial would have been different.").

Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987); see also Commonwealth v. Swavely, 382 Pa.Super. 59, 64, 554 A.2d 946, 948 (1989); Commonwealth v. Davis, 381 Pa.Super. 483, 491, 554 A.2d 104, 110 (1989); Commonwealth v. Carelli, 377 Pa.Super. 117, 125, 546 A.2d 1185, 1188 (1988), allocatur denied, 521 Pa. 609, 557 A.2d 341 (1989).

Appellant contends that trial counsel was ineffective for failing to object to and...