Commonwealth v. Ball

5 Pa. D. & C.5th 244
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedMay 27, 2008
Docketno. 5379-2004
StatusPublished

This text of 5 Pa. D. & C.5th 244 (Commonwealth v. Ball) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ball, 5 Pa. D. & C.5th 244 (Pa. Super. Ct. 2008).

Opinion

CULLEN, J.,

Before the court is the amended motion for post-conviction collateral relief filed by defendant, Terrence V. Ball. For the reasons set forth below, the amended motion will be denied.

PROCEDURAL AND FACTUAL BACKGROUND

Following the robbery of a Fulton Bank in the City of Lancaster on August 20, 2004, defendant, Terrence V. Ball, was charged with robbery,1 facsimile weapons of mass destruction2 and two counts of criminal conspiracy to commit these offenses.3

On June 6, 2005, defendant was found guilty by a jury of robbery and facsimile weapons of mass destruction and not guilty of the remaining offenses.

On August 30, 2005, defendant was sentenced to a term of not less than 10 nor more than 20 years incarceration. Defendant did not file post-sentence motions or a direct appeal.

Defendant filed a timely pro se motion for post conviction collateral relief on August 16, 2006, and counsel was appointed to represent him. Counsel filed an amended motion raising various claims of ineffective assistance on the part of trial counsel.

An evidentiary hearing was held on May 1, 2007, before the Honorable Paul K. Allison. Due to Judge Allison’s unavailability, the matter was reassigned to the undersigned and a second evidentiary hearing was [246]*246held on January 23 and 31, 2008. The parties have submitted briefs, and the matter is ready for disposition.

DISCUSSION

To be eligible for relief under the Post Conviction Relief Act, a defendant must satisfy the requirements of 42 Pa.C.S. §9543 which provides in pertinent part as follows:

“Section 9543 Eligibility for relief
“(a) General rule.—To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
“(1) That the petitioner has been convicted of a crime under the laws of the Commonwealth and is at the time relief is granted:
“(i) currently serving a sentence of imprisonment, probation, or parole for the crime;. . .
“(2) That the conviction or sentence resulted from one or more of the following: . . .
“(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. . . .
“(3) That the allegation of error has not been previously litigated or waived.
“(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic [247]*247or tactical decision by counsel.” 42 Pa.C.S. §9543(a) (2)(ü).

The defendant bears the burden of establishing by a preponderance of the evidence that his conviction resulted from one or more of the enumerated errors listed in the Act. Commonwealth v. Zook, 585 Pa. 11, 25, 887 A.2d 1218, 1226 (2005); Commonwealth v. Crawley, 541 Pa. 408, 412, 663 A.2d 676, 678 (1995). A claim is deemed to have previously been litigated where the highest appellate court, which could have reviewed the issue as a matter of right, has ruled on its merits, or the claim has been previously decided on collateral review. 42 Pa.C.S. §9544(a)(2). Furthermore, a defendant is deemed to have waived an allegation where he could have raised it, but “failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding.” 42 Pa.C.S. §9544(b).

Since defendant’s post-conviction issues involve claims of ineffective assistance of counsel, the following standards apply. The law presumes counsel was effective and, thus, the burden of proving otherwise rests with the defendant. Commonwealth v. Zook, 585 Pa. 11, 26, 887 A.2d 1218, 1227 (2005) (citing Commonwealth v. Travaglia, 541 Pa. 108, 118-19, 661 A.2d 352, 356-57 (1995)); Commonwealth v. Cousin, 585 Pa. 287, 294, 888 A.2d 710, 715 (2005). In order to establish an ineffective assistance of counsel claim, a defendant must prove by a preponderance of the evidence that “(1) the underlying claim has substantive merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) that appellant suffered [248]*248prejudice as a result of that counsel’s deficient performance.” Commonwealth v. Zook, 585 Pa. 11, 26, 887 A.2d 1218, 1227 (2005) (citing Commonwealth v. Pierce, 515 Pa. 153, 158-61, 527 A.2d 973, 975-76 (1987)). See also, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, (1984) (“First, the defendant must show that counsel’s performance was deficient . . . . Second, the defendant must show that the deficient performance prejudiced the defense.”).

To establish prejudice under the Post Conviction Relief Act, the defendant must show that, in the circumstances of the case, counsel’s ineffective assistance so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Where the defendant demonstrates that counsel’s ineffectiveness has created a reasonable probability that the outcome of the proceedings would have been different, then no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Kimball, 555 Pa. 299, 312-13, 724 A.2d 326, 333 (1999).

As fact-finder in a proceeding for post-conviction relief that is based on a claim of ineffective assistance of counsel, the credibility of witnesses remains exclusively within the province of the hearing court. Commonwealth v. Pate, 421 Pa. Super. 442, 450-51, 468 A.2d 791, 795 (1983). An appellate court, therefore, “must give great weight to the findings of a lower court concerning the credibility of witnesses in a post-conviction proceeding.” Commonwealth v. Dupert, 555 Pa. 547, 557, 725 A.2d 750, 755 (1999) (citing Common[249]*249wealth v. Madison, 501 Pa. 485, 491, 462 A.2d 228, 231 (1983)).

In his first issue, defendant claims that trial counsel was ineffective for failing to move to suppress his statement on the basis that the statement was the product of defendant having been beaten by the police.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Commonwealth v. Dupert
725 A.2d 750 (Supreme Court of Pennsylvania, 1999)
Commonwealth v. Crawley
663 A.2d 676 (Supreme Court of Pennsylvania, 1995)
Commonwealth v. Schroth
435 A.2d 148 (Supreme Court of Pennsylvania, 1981)
Commonwealth v. Carson
913 A.2d 220 (Supreme Court of Pennsylvania, 2006)
Commonwealth v. Kimball
724 A.2d 326 (Supreme Court of Pennsylvania, 1999)
Commonwealth v. Zook
887 A.2d 1218 (Supreme Court of Pennsylvania, 2005)
Commonwealth v. Thuy
623 A.2d 327 (Superior Court of Pennsylvania, 1993)
Commonwealth v. Pierce
527 A.2d 973 (Supreme Court of Pennsylvania, 1987)
Commonwealth v. Travaglia
661 A.2d 352 (Supreme Court of Pennsylvania, 1995)
Commonwealth v. Strong
563 A.2d 479 (Supreme Court of Pennsylvania, 1989)
Commonwealth v. Cousin
888 A.2d 710 (Supreme Court of Pennsylvania, 2005)
Commonwealth v. Kloiber
106 A.2d 820 (Supreme Court of Pennsylvania, 1954)
Commonwealth v. Collins
687 A.2d 1112 (Supreme Court of Pennsylvania, 1996)
Commonwealth v. Brison
618 A.2d 420 (Superior Court of Pennsylvania, 1992)
Commonwealth v. Moore
468 A.2d 791 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Farmer
758 A.2d 173 (Superior Court of Pennsylvania, 2000)
Commonwealth v. Lantzy
736 A.2d 564 (Supreme Court of Pennsylvania, 1999)
Commonwealth v. Guerrisi
443 A.2d 818 (Superior Court of Pennsylvania, 1982)
Commonwealth v. Harmon
738 A.2d 1023 (Superior Court of Pennsylvania, 1999)

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Bluebook (online)
5 Pa. D. & C.5th 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ball-pactcompllancas-2008.