Com. v. Wesley

• Decision Date: 14 October 2004
• Citation: 860 A.2d 585
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Harmon WESLEY, Appellant
• Court: Pennsylvania Superior Court

860 A.2d 585

COMMONWEALTH of Pennsylvania, Appellee v. Harmon WESLEY, Appellant

Superior Court of Pennsylvania.

Argued February 24, 2004.

Filed October 14, 2004.

Jules Epstein, Philadelphia, for appellant.

Mary Huber, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before: TODD, PANELLA, and JOHNSON, JJ.

TODD, J.

¶ 1 Harmon Wesley, a/k/a Wesley Harmon, appeals the judgment of sentence imposed by the Philadelphia County Court of Common Pleas after he was convicted by a jury of attempted murder,¹ aggravated assault,² and possession of an instrument of crime.³ We affirm.

¶ 2 The relevant facts of the instant case are as follows: On May 1, 2000, Appellant approached the victim, Tyrone Mitchell, outside of the Green Leaf Apartments in Philadelphia, where Appellant's girlfriend resided. Appellant accused Mitchell, who was a maintenance worker and a tenant at the apartment complex, of breaking into Appellant's girlfriend's apartment. During the conversation, Mitchell's five-year-old son ran up to Mitchell from behind, and Mitchell turned to pick up his son. As Mitchell's back was turned, Appellant shot Mitchell once in the back. Mitchell then pushed his son out of the way and turned around, momentarily grabbing Appellant's gun. Appellant then shot Mitchell in the finger, and at least five more times in the stomach and leg. Mitchell identified Appellant as his assailant on his way to the hospital, where he remained in a coma for more than one month.

¶ 3 On May 12, 2000, while on burglary surveillance in an unmarked vehicle, two police officers observed Appellant on the porch of a house in Philadelphia. The officers exited their vehicle, at which time Appellant ran into the house. Appellant ran out of the back of the house, and a chase ensued. One of the officers caught up to Appellant, and ordered Appellant to drop his weapon, a small black handgun. Appellant, however, pointed the gun at the officer. Although Appellant eluded the police on this date, he subsequently was arrested on June 7, 2002. Appellant was charged with attempted murder, aggravated assault, and possession of an instrument of crime based on the May 1 shooting of Mitchell. Appellant also was charged with aggravated assault and possession of an instrument of crime based on the May 12 incident involving the police officer.

¶ 4 The aforementioned charges were consolidated for trial, at which Appellant was represented by separate counsel, namely, David Belmont, Esquire, for the May 1 charges and Laurence Narcisi, Esquire, for the May 12 charges. Prior to the start of trial, the trial judge informed Appellant that he would permit only one opening and one closing statement, and that counsel should decide who would deliver each statement. Attorney Belmont gave the opening statement with respect to both cases, and Attorney Narcisi gave the closing statement with respect to both cases. Ultimately, Appellant was convicted of the May 1 charges, and the charges based on the May 12 incident were dismissed following a hung jury. On May 15, 2003, Appellant was sentenced to an aggregate term of 32 1/2 to 65 years in prison.

¶ 5 In the instant appeal, Appellant asserts the following:

1. Appellant was denied his United States and Pennsylvania Constitutional guarantee of the right to counsel when the trial court ruled that Appellant, with two discrete cases and two counsel (one for each case) could have only one attorney of the two open and/or close for his consolidated trial.

2. Appellant was denied his right to due process of law and a fair trial when the trial court committed structural error in its jury charge defining reasonable doubt, as that instruction, by repeatedly defining a reasonable doubt as a substantial doubt (explicitly and by example) impermissibly reduced the prosecution['s] burden of proof. To the extent that trial counsel failed to object to this constitutionally deficient instruction, Appellant separately was denied the effective assistance of counsel.

3. Appellant received an illegal sentence when the trial court imposed consecutive sentences for the crimes of attempted murder and aggravated assault where there was one victim injured in one episode (and trial counsel was ineffective for failing to object to, or seek reconsideration of, the illegal sentence).

(Appellant's Brief at 5.)

¶ 6 Appellant's first issue, wherein he contends that the trial court erred in allowing him only one opening statement and one closing argument even though he was represented by different attorneys for two different sets of charges, appears to be one of first impression in this Commonwealth, as our research has disclosed no case precisely on point. As noted above, however, the May 12 charges against Appellant were dismissed, and Appellant was convicted only of the May 1 charges. Since Appellant's attorney on the May 1 charges did, in fact, make an opening statement, we will confine our analysis to whether the trial court erred in allowing Appellant only one closing argument, which in the instant case was made by Appellant's counsel on the May 12 charges.

¶ 7 Our Supreme Court has stated that "[a] defendant has a right to summation." Commonwealth v. Brown, 544 Pa. 406, 422, 676 A.2d 1178, 1185 (1996). However, the Court also has recognized that certain aspects of a defendant's closing argument are left to the discretion of the trial court. For example, in Brown the Court stated:

[t]he length of closing arguments is left to the discretion of the trial court. "Unless there is such an unreasonable limitation of time that effectively denies a defendant the right to summation a criminal conviction should not be disturbed." Commonwealth v. Mervin, 230 Pa.Super. 552, 556-57, 326 A.2d 602, 605 (1974).

544 Pa. at 422, 676 A.2d at 1187; see also Commonwealth v. Garcia, 443 Pa.Super. 414, 426, 661 A.2d 1388, 1395 (1995) (the length of closing argument is a matter entirely within the discretion of the trial judge).

¶ 8 In addition, our Supreme Court has rejected claims of trial court error where the trial court required the defendant to make his closing argument before the Commonwealth, and denied the defendant an opportunity to rebut the Commonwealth's closing argument. See Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970); Commonwealth v. Toney, 439 Pa. 173, 266 A.2d 732 (1970) (noting that before the enactment of Pa.R.Crim.P. 1116(b) (now Rule 604), the order of closing arguments was left to the discretion of the trial judge, and the rule was intended to make the practice uniform throughout the Commonwealth); Commonwealth v. McCarty, 280 Pa.Super. 102, 421 A.2d 425 (1980).

¶ 9 As this Court explained in Garcia, supra:

Where the discretion exercised by the trial court is challenged on appeal, the party bringing the challenge bears a heavy burden.... [I]t is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or [the judgment is] the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record, discretion is abused. We emphasize that an abuse of discretion may not be found merely because the appellate court might have reached a different conclusion, but requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.

443 Pa.Super. at 426, 661 A.2d at 1394-95 (citation omitted).

¶ 10 As noted above, our research has revealed no case law specifically addressing the issue of whether a defendant is entitled to make more than one closing argument when he is represented by separate counsel on separate charges. Rule 604 of the Pennsylvania Rules of Criminal Procedure, however, provides as follows with respect to closing arguments:

(B) When the evidence is concluded, each party shall be entitled to present one closing argument to the jury. Regardless of the number of defendants, and whether or not a defendant has presented a defense, the attorney for the Commonwealth shall be entitled to make one argument which shall be made last.

Pa.R.Crim.P. 604(B). Thus, subsection (B) of Rule 604 clearly provides that each party is entitled to present one closing argument to the jury, and we do not find the trial court's adherence to the rule to be clearly unreasonable or indicative of bias or ill-will. Thus, we find no error in the trial court's actions.⁴See Garcia, 443 Pa.Super. at 427,661 A.2d at 1395 (noting that the trial court did not abuse its discretion by imposing a 20-minute time limit on Appellant's closing where "defense counsel was an experienced trial attorney who was able to fully, adequately and cogently summarize his position and the pertinent evidence within the allotted time period").

¶ 11 Furthermore, even if we were to conclude that the trial court did, in fact, err in limiting Appellant to one closing argument, we note that any such error was harmless, as Appellant herein has failed to allege, let alone demonstrate, that he suffered any prejudice. Appellant does not indicate what Attorney Belmont would have added to Attorney Narcisi's closing argument, nor does he contend that Attorney Narcisi misstated any facts with respect to the May 1 charges. See Brown, 544 Pa. at 422, 676 A.2d at 1185 (noting that the appellant failed to state how he was prejudiced by the time limitation or what could have been done if more time had been allowed). Indeed, Attorney Narcisi was present throughout Appellant's entire trial on all of the charges, and therefore necessarily was familiar with the facts of Appellant's case. Moreover, Appellant's counsel was advised at the...