Com. v. Wright

• Decision Date: 12 September 2003
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Freelin W. WRIGHT, Appellant.
• Court: Pennsylvania Superior Court

832 A.2d 1104

COMMONWEALTH of Pennsylvania, Appellee, v. Freelin W. WRIGHT, Appellant.

Superior Court of Pennsylvania.

Submitted May 19, 2003.

Filed September 12, 2003.

Mark D. Stevens, Meadville, for appellant.

Francis J. Schultz, Asst. Dist. Atty., Meadville, for Com., appellee.

Before: DEL SOLE, P.J., GRACI and BECK, JJ.

BECK, J.

¶ 1 Appellant Freelin W. Wright was convicted by a jury of aggravated assault,¹ recklessly endangering another person,² carrying a firearm without a license,³ possessing an instrument of crime,⁴ and public drunkenness⁵ in November of 2000. The trial court imposed a sentence of seven to fifteen years and later denied appellant's post sentence motions in which he sought a new trial based on after-discovered evidence, as well as a reduction in sentence. Appellant did not file a direct appeal.

¶ 2 In February of 2002 appellant filed a timely petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9542-46 (PCRA). In it he alleged that prior counsel was ineffective for failing to file a direct appeal. He also raised other instances of alleged ineffectiveness, including counsel's failure to move for suppression of certain evidence. The PCRA court granted relief in the form of an appeal nunc pro tunc. In this, his subsequent appeal, Wright challenges his sentence, raises claims regarding the sufficiency and weight of the evidence, states that the trial court erred in ruling against his motion for a new trial, and renews his claims of ineffectiveness. We affirm.

¶ 3 On the night of June 18, 2000, appellant, while drunk, went to the house of his former girlfriend, Brenda Sue Barker, who was watching television with her current boyfriend, Bernard Custard. Her son, Nathan Barker, was asleep on the couch. Appellant rang the buzzer and Custard went down to see what was going on. According to Custard, he opened the door quickly, causing appellant to fall off the porch onto the cement. As Custard was ringing the neighbor's buzzer so that he could use the neighbor's phone, appellant sat up and pulled out a gun. Custard felt a blow to the back of his neck, where appellant had shot him. Brenda Sue Barker and Nathan Barker were witnesses to the shooting.

¶ 4 Police arrested appellant shortly thereafter, and appellant gave a statement that was tape recorded and played at trial. In the statement, appellant claimed that the shooting was accidental.

¶ 5 Appellant's first issue on appeal is that the trial court abused its discretion in imposing sentence. He urges us to find that the trial court erred in denying his motion to reconsider his sentence. Appellant is not entitled to automatic review of the discretionary aspects of his sentence; rather, he must satisfy procedural requirements by setting forth a brief statement of the reasons relied on for allowance of appeal. Pa.R.A.P. 2119(f); Commonwealth v. Koren, 435 Pa.Super. 499, 646 A.2d 1205, 1207 (1994). In addition, he must show that there is a substantial question that his sentence is not appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Urrutia, 439 Pa.Super. 227, 653 A.2d 706, 710 (1995).

¶ 6 Appellant argues that his sentence was "especially long for the single act in question, the actual injuries suffered by the victim, and the victim's statement at the time of sentence." Appellant's Brief at 12. He concedes that he was subject to a mandatory five year sentence under the law and that the trial court "gave standard range sentences," but he claims that "the facts of this case seem to call for concurrent sentences which was argued by trial counsel but dismissed by the court." Appellant's Brief at 13.

¶ 7 In Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002), our Supreme Court held that a claim of excessiveness may raise a substantial question where an appellant provides a plausible argument that the sentence is contrary to the Sentencing Code or the fundamental norms underlying the sentencing process. Appellant's claim here, that consecutive sentences are too harsh, is little more than a bald claim of excessiveness. Appellant simply has not raised a substantial question and so is not entitled to review.

¶ 8 Further, even if we were to conclude that his claim does raise a substantial question, we would find no reason to vacate sentence under these facts. Sentencing is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. Commonwealth v. Rickabaugh, 706 A.2d 826 (Pa.Super.1997). In imposing a sentence, the trial judge may determine whether, given the facts of a particular case, a sentence should run consecutive to or concurrent with another sentence being imposed. Id. The record in this case adequately supports the trial court's decision.

¶ 9 We next address appellant's claim that the trial court erred in rejecting his request for a new trial based on after-discovered evidence. At a post sentence hearing on appellant's unsuccessful request for a new trial, he offered as a witness Justin Rivers, who testified that Custard admitted to him that he (Custard) pushed appellant on the night in question, thereby instigating the physical confrontation that resulted in the shooting.⁶ At trial, Custard denied striking or pushing appellant.

¶ 10 The grant of a new trial on the basis of after-discovered evidence is proper when the following conditions are met:

1. the evidence has been discovered after trial and could not have been obtained prior to the conclusion of trial by the exercise of due diligence;

2. the evidence is not merely corroborative or cumulative;

3. the evidence will not be used solely for impeachment purposes; and

4. the evidence is of such a nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Cobbs, 759 A.2d 932, 934 (Pa.Super.2000) (relying on Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978)).

¶ 11 The evidence offered by Rivers would be useful only as impeachment evidence and, on that basis, does not constitute after discovered evidence warranting the grant of a new trial. Id. In addition, we agree with the trial court that the evidence was not of such a character that its admission would have prompted a different verdict. Appellant's statement varied little from Custard's version of events as to how the shooting occurred. Specifically, at the time appellant drew his gun he was on the ground and Custard, who was unarmed, was on the porch. Custard was shot in the back of the neck. According to appellant's statement, the gun simply "went off"; he did not aim at Custard and was not acting in self-defense. In light of the entire record and the standard for after discovered evidence, we conclude that the trial court did not err in rejecting appellant's request for a new trial.⁷

¶ 12 Appellant also claims that trial counsel was ineffective for failing to move to suppress appellant's statement to police prior to trial. Although this issue was fully litigated at the PCRA hearing, the PCRA court did not rule on the issue, instead granting appellant his request for an appeal nunc pro tunc. In declining to resolve the suppression issue, the trial court relied on a body of case law directing that "once the PCRA court finds that the petitioner's appellate rights have been abridged, it should grant leave to file a direct appeal and end its inquiry there." Commonwealth v. Pate, 421 Pa.Super. 122, 617 A.2d 754, 757-58 (1992). The logic underlying the rule in Pate is that "a defendant [who] establishes that counsel's ineffective assistance denied him entirely his right to a direct appeal ... is entitled to a direct appeal nunc pro tunc without regard to his ability to establish merit of the issues which he seeks to raise on direct appeal." Commonwealth v. Franklin, 823 A.2d 906, 909 (Pa.Super.2003) (citation omitted). The PCRA court's role under these circumstances does not include reviewing any of the defendant's claims for legal sufficiency; rather it is, "limited to fact-finding, which becomes particularly valuable to our eventual review of an appellant's claims." Id. at 910-11. Unlike the Pate line of cases, however, here the evidence presented at the PCRA hearing was not limited to whether appellant was denied his right of appeal; it also included complete testimony on the suppression issue.

¶ 13 Recently, in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), our Supreme Court directed that ineffectiveness claims should await collateral review rather then be addressed on direct appeal. One of the primary reasons underlying Grant is that on direct appeal the record from the trial court typically is insufficient for appellate resolution of an ineffectiveness claim. "Ineffectiveness claims [often] are based on omissions, which, by their very nature, do not appear of record and thus, require further fact-finding, extra-record investigation, and where necessary, an evidentiary hearing." Id. at 64, 813 A.2d at 736. In keeping with Grant, we regularly dismiss claims of ineffectiveness raised for the first time on direct appeal without prejudice to the appellant's right to raise the same claim in a subsequent PCRA petition. Commonwealth v. Rosendary, 818 A.2d 526 (Pa.Super.2003).

¶ 14 Here however, there is an adequate record upon which we can assess this ineffectiveness claim because there was a full evidentiary hearing on the issue at which trial counsel appeared and testified. Further, dismissal of this claim pursuant to Grant would be judicially inefficient as a subsequent claim on collateral review would merely prompt a hearing identical to the one that already occurred below.

¶ 15 In his concurring and dissenting statement, Judge Graci agrees that counsel testified to his strategy on the record and that the strategy chosen appears reasonable. However, Judge Graci believes that Grant does not allow "consideration of ineffectiveness claims where we, as ...