Commonwealth v. FerrariCommonwealth v. Ferrari
As the result of an altercation that occurred early in the morning of April 26, 1987, and which is described by the trial court in its opinion of February 7, 1990, a jury convicted appellant Robert Ferrari of aggravated assault,
Appellant contends, first, that trial counsel was ineffective in failing to request the court to instruct the jury on aggravated assault as defined in
(a) Offense defined.—A person is guilty оf aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon[.]
(a) Offense defined.—A person is guilty of assault if he:
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.
If each and every element of one offense is necessarily an element of a greater offense, the former offense is a lesser included offense of the latter.
Commonwealth v. Thomas,
The first step in our analysis, then, is to determine whether the offenses for which jury instructions should allegedly have been requested are in fact lesser included offenses of aggravated assault as defined in
[W]hen the two subsections are read together it is apparent that subsection (4) contains an element that is not found in the greater offense of subsection (1). Specifically, subsection (4) requires that the assault be caused or attempted “with a deadly weapon”. This element is not contained in subsection (1), which prohibits any attempt to cause or the causing of serious bodily injury but whichdoes not limit itself to any particular mode of causing such an injury.
It is therefore possible that a subsection (1) assault may be proved in some cases without necessarily proving a subsection (4) assault. We therefore hold that subsection 2702(a)(4) assault is not a lesser included offense of subsection 2702(a)(1)----
Id.,
313 Pa.Superior Ct. at 241-42,
We note also that this Court
en banc
reached the same result, although in a different context, in
Commonwealth v. Taylor,
Since the proof required for subsection (a)(1) and subsection (a)(4) is substantially different and the penalties involved, likewise, are substantially different, the defendant cannot be charged with one subsection and be presented with proof or allegations of a different subsection at trial without amendment approved by the defendant. Aggravated assault,§ 2702(a)(4) is not a lesser included offense of aggravated assault,§ 2702(a)(1) . Commonwealth v. Ritchey, [supra]. If, upon a conviction or a plea, the court imposed a sentence relating to one subsection of the Crimes Code, when a different subsection carrying a different penalty was proved, this in effect would be an illegal sentence.
Id.
Appellant contends also that simple assault as defined in
However, given the facts of this case, we are not required to decide whether simple assault,
Appellant nevertheless argues that on the basis of this testimony “the jury may have believed that [he] pointed a gun at the complаinant [Sochacki] while disbelieving or having a reasonable doubt as to whether the complainant actually saw or heard the gun’s trigger being pulled” (Brief for Appellant at 20). Therefore, appellant argues, the jury could have found him guilty of simple assault under §
Next, appellant contends that trial counsel rendered ineffective assistance by representing appellant’s brother, Donald Ferrari, as well as appellant. Appellant and his brother were tried together. Appellant had been charged with aggravated assault, recklessly endangering another person, and simple assault. 5 He was found guilty of the first and second of these offenses and not guilty of the third. Donald Ferrari had been charged with two сounts of simple assault as a result of the events of April 26, 1987 and was acquitted on both counts. Appellant maintains that the existence of inconsistent defenses, along with the difference in severity of the offenses with which the brothers were charged, created an actual conflict of interest that worked to his detriment.
We disagree. Appellant testified that on the night in question Sochacki, without provocation, began to curse and insult him, and appellant cursed him in return. Sochacki then tried to hit appellant with the door of his (Sochacki’s) car. Failing in that, Sochacki got out of the car, swung a bottle at appellant, and then charged at appellant, whereupon, in appellant’s words, “we started fighting to the ground” (T.T. at 124). At this point, appellant testified, Sochacki’s girlfriend, Joan Posa, jumped on his back and hit him in the back of the head, and another friend of Sochacki’s, William Bochonok, “grabbed me by the back of my collar and pulled me off of Sochacki; and I went back to the ground backwards” (T.T. at 124). According to appellant, Bochonok then ran into his house and Sochacki and Posa
Donald Ferrari, appellant’s brother, testified that he was riding past the scene on his motorcycle when he saw appellant running over the fence. He stopped to ask Sochacki, who was in his car, what was happening, and “the car just come swinging right at me, caught my feet; and I went down; and the car went over [the] top of my knee ...” (T.T. at 165). Sochacki thеn drove away, and appellant came to help his brother. Appellant confirmed his brother’s story, testifying that “[m]y brother had arrived on his motorcycle. He had seen the incident____ He walked down out into the street and John [Sochacki] pivoted the car backwards and ran his knee over with the car wheel” (T.T. at 126-27). Donald Ferrari denied having struck Sochacki or Posa with his motorcycle helmet, as was alleged by the Commonwealth.
This Court has held that аn actual conflict of interest is evidenced “whenever during the course of representation, the interests of appellant—and the interests of another client towards whom counsel bears obligations—diverge with respect to a material factual or legal issue or to a course of action.”
In Interest of Saladin,
Nor are we persuaded by appellant’s argument that his interests diverged from his brother’s because he faced more numerous and more serious charges than did his brother. As evidence of divergent interests, appellant points to trial counsel’s statement during closing argumеnt that “[Donald’s] case is a fairly simple case____ Now we move on to Robert’s case. We get a little more complicated there because, well, there are more charges and there are a lot more things happening, too” (C.T. at 13). Appellant suggests that “[o]n the basis of these assertions alone, the jury could have determined that even the defense attorney was somehow unsure of [appellant’s] innocence or guilt in relation to ... Donald’s” (Brief for Appellant at 28). We perceive this statement to be, to the contrary, an accurate assessment of the evidence and an attempt to prepare the jurors to consider a more complex situation and to resolve it in appellant’s favor. Accordingly, we conclude that appellant’s conflict of interest claim lacks arguable merit.
Appellant’s next claim is that trial counsel was ineffective for failing to call character witnesses to testify on appellant's behalf. Appellant maintains that at an evidentiary hearing he would establish that he had given trial counsel the names and phone numbers of potential character witnesses and that these persons were available and were prepared to testify that within the community appellant had a good reputation for peacefulness and honesty. He argues that because the outcome of the case turned on the credibility of witnesses, trial counsel’s failure to call identified character witnesses on his behalf, a decision which could have had no reasonable basis, constitutes ineffective assistance.
It is settled law that evidence of good character may suffice by itself to raise in the minds of the jury a reasonable doubt as to the defendant’s guilt,
Commonwealth v. Simler,
However, a review of the record in the present case reveals that appellant’s testimony was not unsupported. As noted earlier, the testimony of appellant’s brother, Donald Ferrari, confirmed appellant’s testimony from the point at which Donald came on the scene. Appellant’s girlfriend, Jennifer Perrino, confirmed appellant’s testimony that Sochacki began to insult appellant, tried to hit him with the car door, swung a bottle at him and missed, and charged him, at which point the two began fighting, Sosa jumped on appellant’s back and began hitting him, and a person unknown to Perrino, apparеntly William Bochonok, tried to pull appellant off Sochacki. Perrino testified that she then ran to the home of Mike Williams, a friend of appellant, and told him that appellant was in a fight. According to Williams, when he arrived at the scene Sochacki “fired up his car and ... tried to run me over” (T.T. at 155), so Williams jumped onto the hood of another car. From this vantage point, he testified, he saw Sochacki aim his car at appellant, cаusing appellant to jump over a fence, and then aim the car at and strike Donald Ferrari. Finally, Donna Wharton, the mother of appellant and Donald Ferrari, testified that after the incident Donald’s knee appeared bruised and swollen and he used crutches for several days.
The testimony of these defense witnesses, taken as a whole, confirmed appellant’s version of the fight from beginning to end. The jury nevertheless chose to believe the testimony of the Commonwealth’s witnesses. Given these facts, we conclude that appellant has failed to show that “but for the act or omission challenged [i.e., trial counsel’s failure to call character witnesses on appellant’s behalf],
Finally, appellant argues that trial counsel was ineffective in failing to object and to request a mistrial or cautionary instructions when the prosecutor, in his closing argument, allegedly vouched for the credibility of the Commonwealth’s witnesses by saying that their testimony “is the truth.” Appellant also contends that trial counsel compounded his ineffectiveness by failing to raise this issue in post-trial motions.
Our resolution of this issue is controlled by the recent opinion of our Supreme Court in
Commonwealth v. Johnson,
While the prosecutor did state during his closing argument that appellant had lied, when taken in context and aftеr review of all of the evidence, it becomes clear that his remarks were neither unfair nor prejudicial. Clearly, the outcome in this case involved a credibility determination by the jury. The victim and appellant were the only two who testified regarding the events of that evening [when the victim was allegedly raped by appellant]____ The jury was acutely aware that the victim’s and appellant’s stories conflicted____ Moreover, it was defendant’s counsel who first commented on the credibility of the witnesses. Indeed, defense counsel quite clearly indicated his belief that one of the prosecution witnesses was in fact lying. The prosecutor then responded to this attack on one of the Commonwealth’s witnesses____ Viewed in this context, the prosecutor’s comments wereneither unfair nor prejudicial, but, merely reinforced the
fact that the jury had been presented conflicting stories.
Id.,
The case before us presents a very similar scenario. In his closing argument defense counsel emphasized the importance of the jury’s judgment of credibility, stating, “Was Mr. Sochacki’s story believable? Or is [appellant’s] story believable?” (C.T. at 18). While pointing out what he considered to be the unlikely aspects of the testimony of the Commonwealth’s witnesses, defense counsel repeatedly asked, “Does that make sense to you?” (C.T. at 16), “Does any of that make sense to you?” (C.T. at 17), “Is that believable testimony?” (C.T. at 17). In response, the assistant district attorney took the same approach. After recounting numerous aspects of the defense witnesses’ testimony and asking, as had defense counsel, “Does that make any sense ... ?” (C.T. at 32), he stated, “These are all reasons, ladies and gentlemen, why I suggest to you the Commonwealth’s testimony makes morе sense. It is the truth” (C.T. at 37). After making this statement, the assistant district attorney continued to point out unlikely aspects of the defense testimony and continued to ask, “Does that make any sense?” (C.T. at 38). No undue emphasis was placed upon his reference to “the truth.” Although the better course would have been for the prosecutor to avoid the challenged remark, we hold, as did the Supreme Court in Johnson, that the remark was not prejudicial. Appellant’s claim of ineffectiveness therefore fails.
Judgment of sentence affirmed.
Notes
. Although appellant sometimes refers to one or both of these offenses as simply "lesser" offenses, we do not perceive in his argument any distinction between "lesser offenses” and "lesser included offenses.”
. Section 2701(b) has since been amended to provide, in addition to the classifications just stated, that simple assault is a misdemeanor of the first degree when committed against a child under 12 yеars of age by an adult who is 21 or older.
. Although
. Because the closings and the jury charge appear in a separately numbered transcript, the abbreviation T.T. is used to denote the trial transcript and the abbreviation C.T. is used to denote the "closings transcript.”
. The simple assault charge was based on