Commonwealth v. Ball

515 A.2d 307, 357 Pa. Super. 32, 1986 Pa. Super. LEXIS 11777
CourtSuperior Court of Pennsylvania
DecidedAugust 8, 1986
DocketNo. 1063
StatusPublished
Cited by3 cases

This text of 515 A.2d 307 (Commonwealth v. Ball) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ball, 515 A.2d 307, 357 Pa. Super. 32, 1986 Pa. Super. LEXIS 11777 (Pa. Ct. App. 1986).

Opinion

JOHNSON, Judge:

A jury found Robert J. Ball, Appellant, guilty of burglary, terroristic threats, and intimidation of witnesses or victims. Post-verdict motions were denied and, on July 31, 1985, the Honorable Samuel J. Strauss sentenced Appellant to a term of three and one-half to ten years’ imprisonment on the burglary conviction, and five years’ probation, to run consecutively, on the intimidation conviction.

Appellant filed a pro se direct appeal and the Office of the Public Defender was appointed to pursue the appeal. Only two issues are presented for our review:

1. Should Appellant have been granted a new trial based upon alleged after-acquired evidence?
2. Was trial counsel ineffective by failing to call certain witnesses at trial?

Finding no merit in either issue, we affirm.

Regarding the first issue, our distinguished colleague, the Honorable Phyllis W. Beck, has recently restated the well-settled rule in this Commonwealth regarding after-discovered evidence:

[34]*34The legal standard to be applied is well-settled. A new trial will be awarded on the basis of after-discovered evidence only if the evidence in question:
(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Myer, 340 Pa.Super. 176, 186, 489 A.2d 900, 904-05, (1985) (citations omitted). We need look only to the third of the four, conjunctive requirements. The proffered evidence may not be used solely for impeaching credibility of a witness.

The Public Defender seeks to suggest that the evidence found “went not only to the credibility of the Commonwealth’s chief witnesses, but would specifically negate factual contentions.” Brief for Appellant at 7. However, both the Motion for New Trial1 and the Concise Statement of Matters Complained of on Appeal2 refer only to the contradicting value of the evidence discovered after trial. The post-verdict motion contends that “[t]he overwhelming impeachment value of this evidence is obvious.”

Appellant’s counsel clearly misstates the proposition of law set forth in Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978), the only case offered in support of its contention that a new trial is mandated where testimony would specifically negate factual contentions. Brief for Appellant at 9. The most that Valderrama can be cited for is the proposition that evidence which explains the incomplete nature of governmental records introduced into a case, without contradicting those records, may form the basis for the grant of a new trial, where the other three prerequisites are also met.

[35]*35The first issue is utterly devoid of merit because of appellant’s failure to show that evidence will not be used solely for impeachment.

As to the alleged ineffectiveness of trial counsel, Appellant presents two separate contentions. First, it is suggested that if we cannot find that the proffered evidence qualifies as after-discovered evidence, we are urged to find that trial counsel was ineffective for failing to discover the witness, Albert Smolensky, owner of the property, prior to trial. Although the Commonwealth inexplicably “concedes that the court should remand for an evidentiary hearing,” Brief for Appellee at 9, we decline this invitation.

An evidentiary hearing was held on April 15, 1985 at which the after-discovered witness testified. There is no dispute that the witness, Smolensky, would have testified, if called at trial that he inspected the property on or about May 14, 1983, a month before the burglary, and found the rear door had been broken open, the front door had been kicked in and a panel from the door had been knocked out.

In determining whether trial counsel was ineffective we must first consider whether there is arguable merit to the claim. Trial counsel will not be deemed ineffective for failure to raise a frivolous issue or to advance a baseless claim. If we determine the claim has arguable merit, we must then decide whether the course of action chosen by trial counsel had some reasonable basis designed to effectuate appellant’s best interests. Finally, should we find arguable merit, and should we find no reasonable basis calculated to effectuate appellant’s best interests, before we may grant appellant relief, we must also find appellant was prejudiced by the action taken.

Commonwealth v. Walker, 348 Pa.Super. 207, 210-11, 501 A.2d 1143, 1145 (1985) (citations omitted).

On the facts before us, we are unable to find arguable merit in the claim. The complaining witness testified that when he returned to his house one evening at 10:30 p.m., he noticed the kitchen light was on. Upon entering, he discov[36]*36ered two men, one of whom was Appellant, unloading the contents of his freezer into a plastic garbage bag. The complainant told the men to leave and they complied. He testified that the lock on the door had been in good condition when he left the house some thirty minutes earlier, and that the door was pushed in by the lock having been broken.

In this prosecution for burglary, we fail to see how the condition of the outside door leading into the kitchen is either relevant or admissible. The complainant testified to having returned home where he discovered two persons had entered his home and were emptying the contents of his freezer into a plastic utility bag. The defendant had entered the occupied structure with the intent to steal the meat from the freezer. The premises, a private dwelling, were not open to the public nor was the defendant privileged to enter. The complainant did not even know Appellant before accosting him in the kitchen. The essential elements of burglary were thus established. 18 Pa.C.S. § 3502.

While it is true that gaining entry by force or breaking can be an essential element of the crime of criminal trespass, see 18 Pa.C.S. § 3503(a) Buildings and occupied structures.—, it is not an element of burglary.

We recognize that one Kathy Remo, the sister of Appellant’s co-defendant, who lived next door to the scene of the burglary was called as a defense witness, at trial, and testified that she had entered the complainant’s residence “a couple of times.” She testified that she had observed the locking mechanism on the back door and it was broken. Her testimony was that her observations took place before the burglary on June 18, 1983. She did not testify to, nor was she asked about, the length of time between the date(s) of her observations and the day on which the burglary occurred. N.T., 11/14/84 at 119-20.

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Bluebook (online)
515 A.2d 307, 357 Pa. Super. 32, 1986 Pa. Super. LEXIS 11777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ball-pasuperct-1986.