Com. v. Tippens

• Decision Date: 23 October 1991
• Citation: 409 Pa.Super. 536,598 A.2d 553
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Iran TIPPENS, Appellant.
• Court: Pennsylvania Superior Court

Page 553

598 A.2d 553

409 Pa.Super. 536

COMMONWEALTH of Pennsylvania, Appellee, v. Iran TIPPENS, Appellant.

Superior Court of Pennsylvania.

Argued April 9, 1991.

Filed Oct. 23, 1991.

Christine M. Adair, Philadelphia, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com.

Before ROWLEY, President Judge, and CAVANAUGH, CIRILLO, OLSZEWSKI, MONTEMURO, BECK, TAMILIA, POPOVICH and HUDOCK, JJ.

CAVANAUGH, Judge:

This is an appeal from judgment of sentence entered in the Court of Common Pleas of Philadelphia County on December 7, 1989, following appellant's convictions for aggravated assault and possession of an instrument of crime. Appellant was sentenced to five to ten years imprisonment.

In this direct appeal, appellant first alleges trial counsel was ineffective because he was unprepared and made numerous trial strategy decisions which were unreasonable. Second, appellant contends trial counsel and post-verdict motions counsel were ineffective for failing to insure that appellant received the benefit of a jury instruction on character evidence in accordance with Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989). Third, appellant asserts that trial counsel and post-verdict motions counsel were ineffective in failing to object to the prosecutor's statement that the complaining witness/victim "came [into court] and told [the jury] the truth." Having found merit in the first of appellant's arguments, we vacate and remand for a new trial.

The record reveals the following facts. On December 13, 1987, a man entered a neighborhood grocery store owned by the victim, Jessie Batton, Jr., and purchased some milk. The man then departed but returned shortly thereafter to complain the the milk was sour. Batton credited the man for the returned milk and resumed cleaning out the ice cream freezer in the rear of the store. The man then approached Batton from behind, aimed a pistol at Batton's head and stated, "Don't make me blow you away." Batton grabbed the gun, a struggle ensued, and the gun fired as the men tussled on the floor. One of Batton's fingers was struck by the discharged bullet. Thereafter, Batton seized the gun, and the man fled. The police arrived shortly thereafter to investigate.

Approximately one month later, on January 17, 1988, Batton was working at another convenience store owned by his family, when the alleged perpetrator entered the store. Batton followed the man to his destination and telephoned the police. After the police arrived, Batton pointed out the man to the authorities, who arrested appellant and charged him with attempted robbery, aggravated assault and possession of an instrument of crime. Subsequently, the attempted robbery charge was dropped.

At trial, appellant proffered the defenses of misidentification and alibi. Evidence was presented that appellant possessed an abnormally large forehead as well as facial hair on the day of the crime. However, neither of these characteristics was mentioned in Batton's description of the perpetrator to the police. Appellant also presented evidence that at the time of the crime, he was playing pinochle with some friends. ¹ Additionally, appellant called witnesses who testified concerning his good reputation in the community. Appellant's defenses failed, and the jury convicted him of aggravated assault and possession of an instrument of crime.

Subsequently, appellant's trial counsel filed post-verdict motions. Before the court addressed these motions, appellant retained new counsel and filed post-trial motions nunc pro tunc, alleging numerous instances of trial counsel's ineffectiveness. A hearing was held as to the ineffectiveness claims on March 20, 1989. Finding counsel was not ineffective and that appellant's post-verdict motions were lacking in merit, the lower court denied the motions on December 7, 1989 and reimposed sentence. This appeal followed and is pursued by new counsel, appellant's fourth attorney.

In alleging his trial counsel's ineffective stewardship, appellant asserts, inter alia, that counsel was unprepared for trial and that counsel erred in calling eye-witness Barry Wright as a defense witness. These two inter-related allegations of ineffectiveness are meritorious, and it is clear from the record that counsel's work was woefully lacking.

Barry Wright was working for the victim as a store clerk at the time of the shooting. Wright was described by the investigating police officer as "slow," and the officer indicated he had a difficult time getting a coherent statement from Wright. At trial, the Commonwealth chose not to call Wright, even though he was an eye-witness. For reasons that trial counsel later could not remember, he chose to call Wright as a defense witness. (N.T., 3/29/89, pp. 32-33). Counsel called Wright in spite of the fact that he had neither reviewed any prior statements of Wright nor had he interviewed Wright. The trial court questioned counsel's basis for calling Wright during the side-bar exchanges which occurred after Wright's examination by defense counsel and before cross-examination by the Commonwealth:

The Court: What is this witness to testify to that you understand? I don't want this guy down on cross-examination to prejudice your case in any way. What has he brought to the attention of the court that is important?

Defense Counsel: Well, the Commonwealth had indicated to the, through the witness that this gentleman was a little, I won't say retarded or otherwise excitable.

The Court: Don't say--

Defense Counsel: Well, that's one thing.

The Court: What other?

Defense Counsel: He was [not] a Commonwealth witness for that reason. Also with regard to the weapon itself, what I was able to elicit, something is totally different as to where the weapons were and the bullets, that's all I wanted, that's all.

The Court: Does that help your case any?

Defense Counsel: Yes, I think?

The Court: The guy got shot, it was a--

Defense Counsel: I don't know whether he shot himself or not, something is goofy about this whole thing, that's my position.

The Court: This guy provided no evidence except this guy is going to be cross-examined, and he's going to provide evidence that he may be prejudice and critical to you, may hurt you.

Defense Counsel: That's all I wanted.

The Court: You wanted to contradict somebody?

Defense Counsel: I have contradicted the complainant.

The Court: Okay, it's for the purpose, contradiction. At one time the gun was on the bench. When he saw it, it was on the bench, is that a contradiction? Okay.

The Court: I'm just concerned [defense counsel] was not permitted to cross-examine and ask leading questions. I know because he can't do it but you can, you see, and you can lead him almost anywhere you want. I gather from this witness--I don't know why [defense counsel] put him on the witness stand. I don't want it later to be said that he made a boo boo here that inures to his client's detriment, prejudice, ineffectiveness of counsel, you know.... [The prosecution] is going to now cross-examine and lead him to what [it] want[s] him to do, and he's so slow mentally that he's going to be led into almost anything.

(N.T., 7-18-88, pp. 74-77).

On cross-examination, Wright identified appellant as Mr. Batton's assailant.

Counsel is ineffective when there is merit to the underlying claim, the course chosen by counsel does not have a reasonable basis, and the defendant shows prejudice. Commonwealth v. Graham, 522 Pa. 115, 118, 560 A.2d 129, 130 (1989). We recognize that generally trial strategy is a matter best left to counsel and that a defendant is not entitled to relief simply because the strategy is unsuccessful. Commonwealth v. Davis, 381 Pa.Super. 483, 496, 554 A.2d 104, 111-112 (1989). However, instantly, trial counsel's strategy was based upon nothing more than a "hunch" that Wright's testimony would be unfavorable to the Commonwealth. Counsel had no reasonable basis to assume his testimony would be unfavorable. He had neither reviewed Wright's pre-trial statements nor interviewed him personally. By calling Wright to the witness stand, trial counsel did get the minimal benefit of contradicting the complainant concerning where the gun and bullets were located when the police arrived. However, this issue was at best insignificant, especially in light of the fact that a Commonwealth witness had already contradicted the complainant as to the location of the gun.

Further, it was obvious that the Commonwealth chose not to call Wright due to his mental disabilities upon which a Commonwealth witness had already commented. By calling Wright, counsel placed another eyewitness on the stand who could, and did, identify appellant and corroborate the complainant's identification. Considering Wright's apparent mental disability, defense counsel's decision to call him was obviously without justification since, by so doing, counsel gave the Commonwealth the significant advantage of cross-examination, thus, permitting the Commonwealth to lead Wright through his identification testimony.

The prejudice to appellant is also obvious. Appellant's defenses were misidentification and alibi. Defense counsel's decision to call a second eyewitness to the stand who could potentially corroborate the complainant's identification cannot be considered reasonable, especially in light of the facts that: 1) counsel had no articulable reason to believe Wright's testimony would be unfavorable to the Commonwealth; 2) Wright was "slow" and "disorganized"; and 3) the Commonwealth would be permitted to lead Wright through his identification testimony. On the basis of the identification testimony of the victim, the Commonwealth may or may not have been able to pursuade the jury of appellant's guilt. However, because of the ineffective performance by defense counsel, the guilty verdict rendered by the jury is constitutionally suspect and we are obliged to award a new trial.

We treat the second...