Commonwealth v. HanesCommonwealth v. Hanes
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- Hester
This is an appeal from the January 2, 1990 order denying appellant, Robert Hanes, relief under the Post-Conviction Relief Act (PCRA). We affirm.
On April 28,1987, appellant was found guilty by a jury of driving under the influence of alcohol pursuant to
The facts of the crime are as follows. On July 3, 1986, at approximately 10:30 p.m., Barbara Grasser was driving her boyfriend, Roger Bowers, in his truck, traveling north on Route 321 toward Kane, Pennsylvania. Appellant, driving south, crossed the center lane, forcing Ms. Grasser partially onto the berm at which point he struck the Bowers vehicle. Appellant did not stop at the scene, but continued in the same direction, eventually stopping at a local bar. Appellant, bleeding profusely from his arm, asked Brenda O’Neill, the owner of the bar, if he could use the telephone. Appellant telephoned the Elk County Emergency Communications Center, identified himself, reported he had been involved in an accident on Route 321, and stated that he was going to Ridgeway Hospital.
The communications center notified the Pennsylvania State Police of appellant’s telephone call. The police proceeded to Ridgeway Hospital, but appellant was not there. The police then were directed to appellant’s home. Corporal William Wetzel testified that an automobile was parked in the driveway with fresh damage to the driver’s side of the vehicle. When the police were admitted to the home, they observed appellant with an injured arm, glassy and blood shot eyes, slurred speech, and unsteady balance. Corporal Wetzel directed Mrs. Hanes to drive appellant to the hospital, where personnel performed a blood test that showed the alcohol level of appellant’s blood to be 0.305 percent.
Appellant raises the following issues for our review:
1. WHETHER DEFENSE COUNSEL’S PRODUCTION OF ONLY ONE OBVIOUSLY BIASED WITNESS TO REBUT THE TESTIMONY PRESENTED BY THE COMMONWEALTH WHEN EXPERTS WERE AVAILABLE TO INFORM THE JURY OF THE OUTWARD MANIFESTATIONS OF SHOCK AND SEVERE BLOODLOSS CONSTITUTED UNREASONABLE AND INEFFECTIVE COUNSEL WHICH PREJUDICED DEFENDANT’S CAUSE?
2. WHETHER IT WAS UNREASONABLE AND PREJUDICIAL TO DEFENDANT’S CAUSE, FOR DEFENSE COUNSEL NOT TO POLL THE JURY IN LIGHT OF THE OBVIOUS INCONSISTENCY OF ITS VERDICT?
3. WHETHER THE VERDICT ON THE CHARGE OF VIOLATING 75 Pa.C.S.A. SECTION 3731(a)(1) WAS PROPERLY SUPPORTED BY THE EVIDENCE?
4. WHETHER THE DEFENDANT WAS PROPERLY ADVISED BY PRIOR COUNSEL OF THE EFFECT OF WAIVING HIS RIGHT TO APPEAL HIS CRIMINAL CONVICTION, RESULTING IN DEFENDANT NOT HAVING ALL OF THE PROPER INFORMATION AVAILABLE TO HIM WHEN HE INFORMED PRIOR COUNSEL THAT HE DID NOT WISH TO APPEAL?
5. WHETHER THE MISREPRESENTATIONS MADE TO THE DEFENDANT BY THE DISTRICT ATTORNEY SO PREJUDICED THE DEFENDANT THAT HE OUGHT, IN GOOD CONSCIENCE, TO BE PERMITTED TO RELY ON THE REPRESENTATIONS MADE BY THE COMMONWEALTH, OR IN THE ALTERNATIVE, BE GRANTED A NEW TRIAL?
First, we will address appellant’s fourth issue. In effect, appellant asserts that the issues raised in his PCRA petition are not waived by his failure to file a direct appeal from the judgment of sentence because trial counsel provided ineffective assistance. He contends that trial counsel failed to advise him properly concerning the effect of his failure to file a direct appeal.
Appellant’s eligibility for relief is governed by the provisions of the Post-Conviction Relief Act.
(3) That the allegation of error has not been previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.
Next, we address the issue of waiver. Section 9544(b) provides in relevant part that an “issue is waived if the petitioner failed to raise it and if it could have been raised ... on appeal.” (Emphasis added). Since appellant’s issues could have been raised on direct appeal, they have been waived under section 9544. Appellant nevertheless will be eligible for relief under the PCRA if one of the two exceptions to waiver contained in
In the present case, appellant alleges the ineffective assistance of trial counsel. Appellant states that counsel’s ineffectiveness precipitated his failure to appeal. Since the record fails to substantiate that a tactical decision was made to forego these claims on direct appeal, and since the allegations relate to the effectiveness of counsel, we conclude that the claims are not waived due to the operation of
Finally, we determine whether appellant has met any of the requirements contained in
Appellant’s PCRA petition asserts that trial counsel provided ineffective assistance. Ineffective assistance of counsel is cognizable under the PCRA only where it undermined the truth-determining process so that no reliable adjudication of guilt could have taken place.
The latter issue, concerning counsel’s failure to poll the jury, facially does not raise a claim that undermines the truth-determining process; thus, we find that the issue is not cognizable under the PCRA. Even if that issue were cognizable, it is lacking in merit. Appellant has not alleged nor substantiated by allegations that find support in the record that any of the jurors failed to join in the verdict. Inconsistency in the verdict has never been a ground for reversal. 2 Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971); Commonwealth v. Hall, 382 Pa.Super. 6, 554 A.2d 919 (1989).
Next, appellant contends that trial counsel was ineffective for failing to produce expert testimony to rebut the Commonwealth’s testimony concerning appellant’s condition at the time of the accident. He asserts,
It is a very distinct possibility that the defendant would have met with a different outcome at trial had trial-counsel allowed the jury to hear from the mouth of a credible expert, that the physical characteristics displayed by the defendant shortly after the automobile accident could well have been attributed to shock and the severe loss of blood.
Appellant does not identify any expert who would testify that appellant’s behavior could have been the result of shock or blood loss. In fact, counsel admitted at the PCRA hearing that he had no competent evidence that blood loss could cause slurred speech, unsteady balance, or alcohol on the breath. Notes of Testimony (N.T.), 4/5/89, at 16. The Pennsylvania Supreme Court has noted that when “making assertions of ineffectiveness, we ... require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness of counsel in a vacuum.” Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989). See also Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990) (Superior court will not consider claim of ineffectiveness in the abstract).
Further, a review of the record reveals that trial counsel did indeed attempt to convince the jury, through direct testimony and on cross-examination, that appellant’s intoxicated appearance could have been the result of his injury in the accident. N.T., 4/28/86, at 45, 98-100, 138-39. Thus, we conclude that trial counsel’s failure to present expert testimony, under the facts of this case, did not so undermine the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. 3 Therefore, this issue is not cognizable under the PCRA.
Appellant’s third issue is that his conviction of
We agree that the issue is cognizable under the PCRA. Our disposition in the prior appeal did not turn on the merits of the claim; therefore, it has not been previously litigated under 42 Pa.C.S.A. § 9544(a)(2). Moreover, appellant’s waiver of the claim on direct appeal is excusable under the PCRA in light of counsel’s alleged ineffectiveness, seeid. § 9543(a)(2)(ii) , and because the claim involves the sufficiency of the evidence, which necessarily implicates the “truth-determining process”, see id, and raises a question whether an “innocent individual” has been convicted. Seeid. § 9543(a)(3)(ii) .
Commonwealth v. Perlman, 392 Pa.Super. 1, 5, 572 A.2d 2, 4 (1990) (emphasis in original) (footnote omitted).
Appellant contends that the only evidence of his alcohol consumption presented to the jury was from his own testimony that he drank three seven-ounce bottles of beer two hours before the accident. Further, he alleges that his testimony “established the fact that he could not have been under the influence of alcohol to such an extent that his ability to drive, operate, or control an automobile was impaired.” Appellant’s brief at 16.
In reviewing a challenge to the sufficiency of the evidence we determine
whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.
Commonwealth v. Akers,
392 Pa.Super. 170, 181, 572 A.2d 746, 751 (1990), quoting
Commonwealth v. Jackson,
506 Pa.
We have read the testimony at trial and conclude that there is sufficient evidence to support the verdict. Appellant admitted drinking beer within two hours of the accident. He crossed the center line of the roadway, forcing an on-coming vehicle onto the berm, and struck it. He fled the scene, although he eventually stopped at a bar and reported the accident. The bar owner testified that appellant appeared to be intoxicated. Corporal Wetzel testified that shortly after the accident, he noticed the odor of alcohol on appellant’s breath, and described appellant as having blood shot, glassy eyes, slurred speech, and unsteady balance. Accordingly, appellant’s sufficiency of the evidence claim must fail.
Finally, appellant asserts that the Elk County District Attorney advised appellant that the maximum period for which his driving privileges would be revoked was one year and that based upon this advice, appellant chose not to appeal. Appellant contends that he met with the district attorney in order to seek legal advice concerning the consequences of failing to file a direct appeal and that the district attorney “encouraged Defendant to forgo his right to appeal____” Appellant’s brief at 22 (emphasis in original).
We first examine whether this issue is cognizable under the PCRA by ascertaining whether appellant’s conviction resulted from one or more of the eight circumstances set forth in
However, even if it were cognizable, it clearly is lacking in merit. The record does not support appellant’s assertion that the district attorney encouraged him to forgo his right to appeal. First, we note that this issue, as raised in appellant’s brief, lacks any citation to the record. Second, the allegations in the brief find no support in the record. We have read the notes of testimony from the PCRA hearing. The only testimony concerning this issue arose during the Commonwealth’s cross-examination of appellant. Appellant stated that during a spontaneous meeting between appellant and the district attorney in a convenience store near the courthouse two weeks prior to trial, appellant inquired about a possible plea bargain and asked, “Is one year loss of license all that I’m going to receive?” to which the district attorney allegedly responded, “Yes.” N.T., 4/5/89, at 19-20.
Even if such a spontaneous, pretrial meeting occurred, this testimony clearly does not support appellant’s claim that the Commonwealth provided legal advice concerning the consequences of failing to appeal his conviction (he was not convicted at the time), and certainly does not provide an iota of evidence that the Commonwealth encouraged him to forgo his direct appeal.
Order affirmed.
POPOVICH, J., concurs in the result.
Notes
. The court originally sentenced appellant to thirty days to two years imprisonment. On November 12, 1987, the court amended its September 4, 1987 order, directing that appellant’s incarceration be thirty days to twenty-three and one-half months.
. We also disagree that the verdict is inconsistent. Since both appellant and his wife testified at trial that appellant drank approximately twelve ounces of whiskey when he stopped at his home after the accident, N.T., 4/28/86, at 147, 156, the jury may have concluded that the blood test did not reflect appellant’s blood-alcohol level at the time of the accident. However, since appellant also admitted to drinking three bottles of beer before the accident, the jury also concluded that appellant had been driving while under the influence of alcohol.
. See also Commonwealth v. Weinder, supra, where we stated, ‘‘[I]t is not enough for appellant to show that he suffered some prejudice as a result of counsel’s ... inaction, but rather that counsel’s ... inaction so affected the trial itself (‘the truth determining process’) that the result of the trial is inherently unreliable.” Id., 395 Pa.Super. 627, 577 A.2d at 1374.