Com. v. Whiting

• Decision Date: 18 November 1986
• Citation: 517 A.2d 1327,358 Pa.Super. 465
• Parties: COMMONWEALTH of Pennsylvania v. William WHITING, Appellant.
• Court: Pennsylvania Superior Court

Page 1327

517 A.2d 1327

358 Pa.Super. 465

COMMONWEALTH of Pennsylvania v. William WHITING, Appellant.

Superior Court of Pennsylvania.

Argued June 24, 1986.

Filed Nov. 18, 1986.

Dennis J. Cogan, Philadelphia, for appellant.

Elizabeth J. Chambers, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.

HOFFMAN, Judge:

This is an appeal from the judgment of sentence for burglary and conspiracy. Appellant contends that (1) the trial court erred in denying his request for new counsel and (2) trial counsel was ineffective in failing to (a) object to the trial court's questioning of appellant; (b) object to the trial court's missing witness instruction; (c) object to the Commonwealth's introduction of hearsay evidence; and (d) call a police detective to impeach Commonwealth witnesses through the use of prior inconsistent statements. For the reasons that follow, we remand to the trial court for an evidentiary hearing on three of appellant's ineffectiveness claims, and direct the trial court to file a supplement to its opinion addressing appellant's contention that his request for new counsel was improperly denied.

On August 1, 1980, Marion Geisz surprised two men as they were burglarizing her home. The two men fled through a side window. Geisz and some of her neighbors chased the men. Appellant was later arrested and charged with the burglary. Prior to his trial by jury, appellant requested that new counsel be appointed to represent him. This request was denied and appellant went to trial represented by an assistant public defender. At trial, the Commonwealth presented the testimony of several witnesses, including Geisz and her neighbor, both of whom identified appellant as one of the men they saw leaving through the side window of Geisz's home. Appellant testified on his own behalf, denying any involvement in the burglary, and stated that he was not the subject of the chase, but a participant in chasing the true offenders. On December 14, 1983, appellant was found guilty of burglary and criminal conspiracy. On November 13, 1985, appellant was sentenced to ten-to-twenty years imprisonment on the burglary charge, and five-to-ten years imprisonment on the conspiracy charge, sentences to run concurrently. This appeal followed.

Appellant first contends that the trial court erred in denying his request to appoint new counsel. The decision whether to appoint new counsel rests in the discretion of the trial court. See Commonwealth v. Tyler, 468 Pa. 193, 198, 360 A.2d 617, 619 (1976); Commonwealth v. Bell 328 Pa.Superior Ct. 35, 47, 476 A.2d 439, 446 (1984). Although an indigent defendant is entitled to free counsel, he is not entitled to free counsel of his choice, Commonwealth v. Tyler, supra 468 Pa. at 197, 360 A.2d at 619, and he may reject appointed counsel only "for good cause shown." Id. (quoting Commonwealth v. Johnson, 428 Pa. 210, 213, 236 A.2d 805, 807 (1968)); Commonwealth v. Bell, supra. A "mere dissatisfaction" with appointed counsel is inadequate to establish "good cause shown." Commonwealth v. Bell, supra. If the defendant can show that irreconcilable differences exist between his counsel and himself, however, a trial court's refusal to appoint new counsel is an abuse of discretion and the defendant is entitled to a new trial. Commonwealth v. Tyler, supra 468 Pa. at 197-98, 360 A.2d at 619; Commonwealth v. Bell, supra.

Although the lower court filed an opinion in this matter, it neither addressed this contention in its opinion nor indicated the place in the record where the reasons for its denial could be found. Pa.R.A.P. 1925(a) mandates that:

Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.

Id. The purpose of Rule 1925(b) is to provide the appellate court with the lower court's reasoning in support of its determination, thereby insuring meaningful appellate review. See Commonwealth v. Mueller, 341 Pa.Superior Ct. 273, 278, 491 A.2d 258, 261 (1985); Commonwealth v. Coda, 283 Pa.Superior Ct. 408, 411, 424 A.2d 529, 530-31 (1981). Here, we do not have the benefit of a discussion by the trial court of the reasons for its decision. Moreover, we have carefully reviewed the record and find conflicting evidence regarding whether irreconcilable differences existed between appellant and his trial counsel. ¹ Because we find it difficult to determine whether the court abused its discretion absent its express findings on the issue, we are compelled to remand to the trial court with a direction to supplement its opinion with its reasons for denying appellant's request.

Appellant next raises four claims of ineffective assistance of trial counsel. In evaluating ineffective assistance of counsel claims, a reviewing court must first determine whether the issues underlying the claim are of arguable merit. Commonwealth v. Pierce, 345 Pa.Superior Ct. 324, 327, 498 A.2d 423, 425 (1985) (en banc), allocatur granted 510 Pa. 244, 507 A.2d 368 (1986). If the claim has merit, the court must then determine "whether the course chosen by counsel had some reasonable basis aimed at promoting the defendant's interests." Id. When a claim has arguable merit, and there has been no evidentiary hearing below to determine if a reasonable basis exists for counsel's actions, this court will remand for an evidentiary hearing. Commonwealth v. Spotts, 341 Pa.Superior Ct. 31, 33, 491 A.2d 132, 134 (1985). Additionally, appellant must show that counsel's ineffectiveness so prejudiced his case that he was deprived of a fair trial. Commonwealth v. Pierce, supra 345 Pa.Superior Ct. at 329, 498 A.2d at 426. In this analysis, counsel is presumed to be effective, Commonwealth v. Norris, 305 Pa.Superior Ct. 206, 210, 451 A.2d 494, 496 (1982), and appellant bears the burden of establishing that trial counsel was ineffective. Commonwealth v. Jones, 298 Pa.Superior Ct. 199, 205, 444 A.2d 729, 732 (1982).

Here, there has been no evidentiary hearing on appellant's ineffectiveness claims. We must therefore examine each of appellant's claims, determine whether it has arguable merit and has prejudiced appellant, and, if so, remand for an evidentiary hearing to determine whether counsel had a reasonable basis for her actions.

Appellant first argues that trial counsel was ineffective for failing to object to the court's extended questioning of appellant. In particular, appellant maintains that the court assumed the prosecutor's role by continuously questioning him with the result that the jury concluded that the court believed appellant to be guilty. A trial judge has the right and sometimes the duty to examine a witness for the purpose of clarifying or making more certain important points. See Commonwealth v. Seabrook, 475 Pa. 38, 44, 379 A.2d 564, 567 (1977) (quoting Commonwealth v. Myma, 278 Pa. 505, 507-08, 123 A. 486, 487 (1924)); Commonwealth v. Miller, 234 Pa.Superior Ct. 146, 154, 339 A.2d 573, 578 (1975), aff'd 469 Pa. 24, 364 A.2d 886 (1976). The questioning, however, should not show bias or feeling nor should it be unduly protracted. Commonwealth v. Seabrook, supra 475 Pa. at 45, 379 A.2d at 567 (quoting Commonwealth v. Watts, 358 Pa. 92, 96, 56 A.2d 81, 83 (1948)); Commonwealth v. Green, 315 Pa.Superior Ct. 564, 578, 462 A.2d 736, 742 (1983). "A major reason for the restrictions on a trial judge's questioning is the concern that his conduct may lead the jury to conclude that the court has made up its mind on the question of the defendant's guilt, and that the jury should follow the judge's opinion." Commonwealth v. Seabrook, supra. It is therefore "better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court." Commonwealth v. Seabrook, supra 475 Pa. at 44, 379 A.2d at 567 (quoting Commonwealth v. Myma, supra ). Ultimately, "the question is whether the trial court has abused its discretion" in interrogating the witness. Commonwealth v. Seabrook, supra at 45, 379 A.2d at 567.

Here, the lower court did not address this argument in its opinion. A review of the record reveals, however, that the trial court engaged in an extensive cross-examination of appellant in front of the jury. Half of the court's questions were asked during the Commonwealth's cross-examination of appellant and were obviously designed to clarify testimony. See N.T. December 14, 1983 at 132, 138, 141, 143. The court's other questions were asked after the Commonwealth finished cross-examining appellant. See id. at 153-56. We have carefully reviewed the court's examination of appellant and find no error. Appellant's testimony in response to the court's questioning was consistent with his testimony on direct examination. Indeed, the examination by the court provided the jury with a concise summary of appellant's testimony. Moreover, the questions did not display bias or feeling on the court's part. On these facts, we conclude that, although the court's questioning was somewhat longer than desired, it did not abuse its discretion. Accordingly, appellant's claim that trial counsel was ineffective for failing to object to the questions has no merit, and we need not remand for an evidentiary hearing. ²

Appellant next argues that trial counsel was ineffective for failing to object to the court's missing witness instruction. Generally, when an accused raises an alibi defense and names a person who can support that defense, yet fails to call that person as a witness, the jury may infer that the absent witness's testimony would have been unfavorable to the accused. See Commonwealth v. Leonard, 499 Pa. 357, 364-65, 453 A.2d 587,...