Commonwealth v. Lane, 2006 PA Super 168 (Pa. Super. Ct. 7/12/2006)
| Decision Date | 12 July 2006 |
| Docket Number | No. 1602 EDA 2004,1602 EDA 2004 |
| Citation | 2006 PA Super 168 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL LANE, Appellant. |
| Court | Pennsylvania Superior Court |
Appeal from the Judgment of Sentence in the Court of Common Pleas of Lehigh County, Criminal Division, at No. 3487 of 2002.
¶ 1 Michael Lane appeals his December 16, 2003, judgment of sentence of life imprisonment without possibility of parole. The sentence was imposed as a result of appellant's convictions, by a jury, of three counts of robbery,1 two counts of aggravated assault2 and one count of possessing an instrument of crime.3
The crime underlying the present conviction occurred on June 19, 2002, less [than] two years after the defendant's release from a lengthy period of incarceration in state prison. On that afternoon, the defendant entered the Park-Mart, a small gas station and convenience store, located at 824 W. Broad Street, Bethlehem, Pennsylvania. He demanded that the victim, Bhavna Perikh, who was working alone in the store, give him money from the various registers. To that end, he had attempted, unsuccessfully, to conceal his face, and he brandished a large knife, at times thrusting it at the victim. In fact, upon entering the store and finding the victim, the defendant forcefully took the telephone that the victim was holding and stabbed the victim's left hand. The defendant then pulled Ms. Perikh by the shirt to the front of the store to the register area. Ms. Perikh anxiously attempted to comply with the defendant's demands despite the fact that she was bleeding profusely, putting as much money as she could into a plastic grocery-type bag. Nevertheless, the defendant demanded that the victim "hurry up," and ultimately cut her right hand as well, severing several tendons. The victim continued to attempt to do as instructed by the defendant, but had great difficulty. Ultimately, the defendant took the bag of money and also put additional money in his left front pants pockets.
After obtaining less than three hundred dollars ($300), the defendant fled from the store. He was observed by several alert by-standers loping down the street carrying a white plastic bag and what appeared to be a knife. The witnesses, in turn, flagged down Sergeant David Cimera, who was driving through the area in a marked police vehicle. They informed the officer of the situation and directed him to the area where the defendant had run. Sgt. Cimera chased the defendant, and ultimately, observed the defendant starting a white Chrysler vehicle, look up at him, put the vehicle in gear, make a U-turn, and drive away rapidly. Sgt. Cimera relayed the vehicle description and registration information to police dispatch, and the car was traced to the defendant. After the defendant fled the area, Sgt. Cimera noticed money covered in blood laying in the street in the area where the defendant's car had been parked, specifically, in the area near the driver's door.
Surveillance was then set up near the defendant's home located at 1342 Butler Street in Easton, Pennsylvania. He was arrested later that evening in Easton in the area of 17th and Northampton Streets.
Trial Court Opinion, Steinberg, J., 8/16/04, pp. 2-3.
¶ 2 On August 11, 2003, appellant proceeded to a jury trial during which on several occasions, he interrupted the proceedings, oftentimes screaming obscenities at the judge, jury and defense counsel. The court warned appellant that if he did not cease his behavior, he would be removed from the courtroom. Nonetheless, appellant refused to comply and, eventually, he was removed from his trial. Although given several opportunities to return to the courtroom or to observe the proceedings via video from another room, he refused to behave appropriately. Summarily, he refused to attend his trial, declined to watch the events via live video and demanded to be returned to prison. Trial Court Opinion at 8—10. Ultimately, appellant was convicted of all charges and the Commonwealth filed its notice of intent to seek the mandatory sentence available pursuant to the "three strikes law." 42 Pa.C.S.A. § 9714, Sentences for second and subsequent offenses (a) Mandatory sentence (2). At the sentencing hearing, appellant was informed of the potential punishment he faced, and the court, well-aware of additional criminal activity by appellant, and privy to a pre-sentence investigation report, exercised its discretion and sentenced him to life imprisonment. Timely post-sentence motions were filed on December 26, 2003, and eventually denied on May 14, 2004. Appellant filed a notice of appeal on June 6, 2004, and thereafter, as directed by the trial court, filed a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, appellant presents the following issues for our consideration:
A. Did the trial court err by preventing the appellant from exercising his fundamental right to testify during his trial?
B. Did the lower court err by unconstitutionally sentencing [appellant] to life in prison without parole?
C. Did the prosecutor commit misconduct by referring to [appellant's] Islamic faith and God?
D. Was prior counsel ineffective during their representation of [appellant]?
E. Does newly adopted Rule 720 prevent the appellant from pursuing a collateral attack in this appeal?
F. Did the lower court err by allowing testimony establishing the incarceration of [appellant]?
G. Did the lower court err by not allowing [appellant] to challenge the jury array?
H. Did the trial court err by allowing the complainant to testify through an interpreter after she had previously done so without such aid?
I. Did the lower court err and improperly exercise its discretion when it allowed irrelevant, prejudicial, and tampered evidence during the trial of [appellant]?
J. Did the trial court err by not setting aside the guilty verdict because the weight of the evidence did not support the verdict?
K. Did the trial court err by not recusing itself? Appellant's brief at 4-5.
¶ 3 Initially, we must determine which of the above eleven issues have been properly preserved for our review and consideration. In order to J. S65005/05 preserve issues for appellate review, they must first be raised to the trial court, and then included in a statement of matters complained of on appeal filed pursuant to Pa.R.A.P. 1925(b), Direction to file statement of matter complained of; Pa.R.A.P. 302, Requisites for Reviewable Issue; Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). Recently, our Supreme Court has reaffirmed that the bright-line rule in Lord is to be strictly applied, and indicated that no discretion exists for this Court to construe otherwise, even if persuasive equitable considerations exist. Commonwealth v. Castillo, ___ Pa. ___, 888 A.2d 775 (2005), and Commonwealth v. Schofield, ___ Pa. ___, 888 A.2d 771 As to Issues A and K, appellant alleges and argues the trial court erred by preventing him from testifying and for not recusing itself. In his post-sentence motions and 1925(b) statement, however, appellant alleged trial counsel was ineffective for refusing him the opportunity to testify and for refusing to file a motion asking the trial judge to recuse. As trial court error and ineffectiveness of counsel are separate and distinct legal issues, the failure to raise the allegations of trial court error prior to raising them in the appellate brief results in waiver.4 Lord, supra.
¶ 4 Issue B, regarding the constitutionality of appellant's sentence of life imprisonment has been properly preserved and will be considered infra.
¶ 5 In Issue C, appellant alleges prosecutorial misconduct when the district attorney referred to appellant's Islamic faith and to God during his opening and closing statements to the jury. In his 1925(b) statement and amended post-sentencing motions, however, appellant asserts trial court error in allowing the Commonwealth to mention his affiliation with the Muslim religion, thereby prejudicing him; there was no such allegation that misconduct occurred when the prosecutor mentioned God. Record Nos. 55, 60. Thus, only the issue pertaining to appellant's Islamic faith is preserved.
¶ 6 Issue D, regarding trial counsel's alleged ineffectiveness, includes allegations of counsel's ineffectiveness for failing to object to the points raised in Issues F and H, which allegations of error, although not preserved outright, were included in appellant's amended post-sentence motions and concise statement of matters complained of on appeal.
¶ 7 In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), our Supreme Court held that "as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review." Id. at 67, 813 A.2d at 738. This rule was applied retroactively to properly raise and preserve claims of ineffectiveness in all cases on direct appeal at the time Grant was decided. Id. An exception to the rule exists, however, where the issue of counsel's ineffectiveness was raised before the trial court and an evidentiary hearing was held on the issue. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003). In this case, appellant raised the allegations of ineffectiveness in his post-sentence motions and an evidentiary hearing was held on May 12, 2004. At that hearing, trial counsel testified regarding his stewardship. The trial court concluded the issues raised in the post-sentence motions were without merit, and addressed them in its 1925(a) Opinion. Since the issues of ineffective assistance of counsel were raised before the trial court, developed at an evidentiary hearing, and addressed by the trial court in its 1925(a) Opinion, Bomar applies and this Court is able to review the merits on direct appeal. Thus, appellant's Issue D is properly before us. Accordingly, although the issues were not preserved in...
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