Coss v. Lachine County Dist. Atty.

• Decision Date: 01 March 1999
• Docket Number: No. 98-7416,98-7416
• Citation: 204 F.3d 453
• Parties: (3rd Cir. 2000) EDWARD R. COSS, JR., Appellant v. LACHINE COUNTY DISTRICT ATTORNEY; THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA
• Court: U.S. Court of Appeals — Third Circuit

Page 453

204 F.3d 453 (3rd Cir. 2000)

EDWARD R. COSS, JR., Appellant v. LACHINE COUNTY DISTRICT ATTORNEY; THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA

No. 98-7416

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued March 1, 1999

Re-Argued: Monday, November 8, 1999

Decided February 29, 2000

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 94-cv-01481) District Judge: Honorable Thomas I. Vanaskie [Copyrighted Material Omitted] ATTORNEY FOR APPELLANT: Daniel I. Siegel, Esq. (argued) Assistant Federal Public Defender Middle District of Pennsylvania 100 Chestnut Street, Suite 306 Harrisburg, PA 17101

ATTORNEY FOR APPELLEES: William P. O' Malley (argued) Assistant District Attorney Lachine County Courthouse 200 N. Washington Avenue Scranton, PA 18503

ATTORNEYS FOR AMICUS CURIAE, THE ATTORNEY GENERAL OF PENNSYLVANIA D. Michael Fisher Attorney General William H Ryan, Jr. Executive Deputy Attorney General Director, Criminal Law Division, Robert A. Graci Assistant Executive Deputy Attorney General Law and Appeals Criminal Division, Ronald T. Williamson Senior Deputy Attorney General Appeals and Legal Services Section Criminal Law Division

Argued March 1, 1999

Before: STAPLETON, RENDELL and ALDISERT, Circuit Judges

Re-argued Nov. 8, 1999

Before: BECKER, Chief Judge, SLOVITER, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL, BARRY, ALDISERT and STAPLETON, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Edward Coss appeals from the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C.S 2254. He is not challenging the merits of the state conviction for which he is presently incarcerated. Instead, he contends that because a former conviction for which he is no longer incarcerated or under any parole restraint was tainted by a constitutional infirmity, and that conviction was improperly considered when he was sentenced for his second offense, his current term of incarceration violates his constitutional rights.

We must first decide whether the conviction of his first offense was considered by the sentencing judge in the matter for which he is presently incarcerated, thereby vesting subject matter jurisdiction in the District Court for his present petition. If we find such jurisdiction we must then examine his first conviction to determine whether he was denied his Sixth Amendment right to competent counsel. If we agree with this contention then we must decide what remedy is available to him.

I.

The melancholy chronicle of events started with a simple assault and battery that took place on June 25, 1986, in the small community of Dickson City in Lachine County, Pennsylvania, when the local police were called to a high school graduation party at the home of Carol Ann Frank, the sister of the then seventeen-year-old Appellant, Edward Coss. At the District Court hearing, testimony was presented that Appellant attended the party along with his brothers, Jimmy and Bobby, Appellant's girlfriend, Sherry Kulick, Carol Ann's roommate, Lisa Frieto, and Lisa's brother, George Frieto. Most of the guests at the party consumed alcohol.¹ It seems that Carol Ann's roommate, Lisa Frieto, got into a hair pulling contest with Sherry Kulick, and thereafter the revelers, all of whom had been drinking, apparently picked sides and a grand donnybrook was had by all until Carol Ann, the hostess, threw everyone out of her house.

Undeterred by the great outdoors, the donnybrookers continued their carousing outside until the landlord and the neighbors called the police. When the cops arrived with their usual greeting, "Break it up," there apparently was a slight problem in attitude adjustment, and the cops say that Appellant threw a couple of punches at one of them, landing himself in the local lockup. Totally dissatisfied with the accommodations, Appellant proceeded to voice his complaint by destroying a radiator, a sink, a toilet and a light fixture on the ceiling in his cell. For this, he was convicted of simple assault and institutional vandalism and sentenced to six months to a year on each offense. Appellant did his time and was released to society on parole.

Appellant met with his assigned attorney, Rose Ann McGowan, on two occasions before his trial. The District Court made the finding of fact that Appellant gave McGowan the names and addresses of several potential witnesses during their first meeting.² Counsel gave Appellant no notice of the trial date but contacted him approximately one hour before the trial was to begin, at which point Appellant drove directly to the courthouse, stopping only to pick up his brother Jimmy at school.

Appellant's trial began on October 30, 1986 and lasted two days. At the trial, the officers who arrested Appellant, Officers Adamitis and Wrobel, testified that when they arrived at the scene, individuals began scattering and that they grabbed Appellant as he was running to his car. They testified that Appellant was screaming vulgarities and smelled of alcohol. They testified that, after being grabbed, Appellant began pushing Officer Wrobel and was then arrested. They also testified that as Officer Adamitis attempted to grab Appellant's brother Bobby, Appellant punched Officer Adamitis in the face. This punch is the basis for Appellant's simple assault conviction. Finally, Officer Wrobel testified that an individual named George also hindered their attempts to arrest Bobby.

The only witnesses to testify on Appellant's behalf were Appellant and Jimmy.³ Their accounts of the incident on June 25, 1986 were completely different from the testimony adduced some years later at the District Court hearing. They denied (1) that there was a party at Carol Ann's house that night and (2) that Appellant had been drinking. They testified (3) that on the night in question, Jimmy and Appellant were in their sister's driveway, along with their brother Bobby, and had been there no more than fifteen minutes when two police officers arrived and began to assault Bobby and Appellant, (4) that Appellant did not curse or punch anyone and (5) that he did not know who the officer was referring to when he stated that an individual named George was at the scene. Jimmy corroborated this story, stating that there was no party at Carol Ann's, that they were only at Carol Ann's house to give her a camera, that he had not been drinking and that Appellant did not hit a police officer.

The charges ultimately presented to the jury were institutional vandalism and criminal mischief, simple assault, resisting arrest and disorderly conduct. The jury convicted Appellant of institutional vandalism, criminal mischief and simple assault.⁴ Appellant was sentenced on January 30, 1987, receiving six months to one year on the simple assault charge and six months to one year on the institutional vandalism and criminal mischief charges. The simple assault sentence ran consecutively to the institutional vandalism and criminal mischief sentence. As stated previously, Appellant has already served his sentence for these convictions.

On August 30, 1989, seven or eight months after Appellant's discharge from Pennsylvania parole supervision, a certain Peter Petrovich was beaten "by a group of five or six men, including appellant."⁵ Appellant was subsequently arrested and convicted on one count of aggravated assault and battery and one count of simple assault for his part in the group effort to register displeasure on Petrovich's person. Appellant was sentenced to a term of six to twelve years imprisonment on the aggravated assault conviction. Presently, he is serving a sentence based on charges from this 1990 conviction, unrelated to his 1986 convictions. Although he has served the term for the simple assault charge, Appellant urges that his claim is not moot because the assault charge was used to enhance his sentence from the 1990 conviction for which he is still incarcerated.

II.

On September 15, 1994, Appellant filed a pro se petition for writ of habeas corpus pursuant to S 2254. Appellant filed an original and amended petition on November 29, 1995, and a Second Petition for Writ of Habeas Corpus on November 7, 1996. In the petition Appellant claimed that he was denied his Sixth Amendment right to effective assistance of counsel during the proceedings leading up to his 1986 convictions based on, among other things, counsel's failure to subpoena any of the witnesses he requested.⁶

On April 20, 1998, an evidentiary hearing was held to address Appellant's ineffective assistance of counsel claims. At the hearing, each of the witnesses that Appellant stated he had identified to counsel, namely, Carol Ann, Bobby, Sherry, and George, testified that McGowan did not contact them regarding Edward's trial and that he did not strike any police officer. Bobby, Sherry, and George testified that there was a party and Edward was present, that someone had called the police and that the first thing that the police did upon arrival was approach Edward and place him in the back of one of the police cars. They testified that the police then chased after Bobby, at which point George jumped on the back of one of the officers to try to hinder his attempt to arrest Bobby. Thus, according to these witnesses' testimony, Appellant was in the police car the entire time the police attempted to arrest Bobby. According to the District Court, "McGowan's recollection of the case [at the evidentiary hearing] was somewhat sketchy."⁷ She conceded during the hearing that she did not investigate the events surrounding Coss' arrest, electing not to dispatch her investigator to interview any of the witnesses at issue, and defended her actions by stating that "Coss must have told her not to subpoena them." Dist. Ct. Op. at 16 (June 10, 1998).

Following the hearing, the District Court denied Appellant's ineffective assistance of counsel claims. The court...