Commonwealth v. Devine

26 A.3d 1139, 2011 Pa. Super. 163, 2011 Pa. Super. LEXIS 2221, 2011 WL 3370881
CourtSuperior Court of Pennsylvania
DecidedAugust 5, 2011
Docket1993 EDA 2010
StatusPublished
Cited by124 cases

This text of 26 A.3d 1139 (Commonwealth v. Devine) 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. Devine, 26 A.3d 1139, 2011 Pa. Super. 163, 2011 Pa. Super. LEXIS 2221, 2011 WL 3370881 (Pa. Ct. App. 2011).

Opinion

OPINION BY

GANTMAN, J.;

Appellant, Keith Devine, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial convictions for third degree murder, criminal conspiracy, and two counts of aggravated assault. 1 We affirm.

The trial court sets forth the relevant facts of this appeal as follows:

On Sunday, March 25, 2007, at about 4:37 p.m., police responded to a shooting at 5821 Pentridge Street and found four victims suffering from gunshot wounds. One victim, Jovonne Stelly, was later pronounced dead from a gunshot wound to the face.
The day of the shootings, at about 3:30 p.m., [Appellant] was standing outside his home at 5817 Pentridge St., at a house he shared with his step-father, co-defendant Sam Scruggs when a group of approximately 20 young men and wom[e]n, including a man named Eddie Tate, approached [Appellant] from the street regarding a previous problem. [Appellant] went into the house and the mob outside moved to the far end of the block rather than return home. Shortly thereafter, a car pulled up to [Appellant’s] house and an unidentified man got out and distributed guns to individuals inside the house, including Scruggs, [Appellant] and another man named Michael Wynn.
Now armed, [Appellant] and company went back outside to confront the earlier mob. Arguments flared, someone spit *1142 on someone else, and Scruggs pulled out his gun and knocked a member of the mob, [Earl] Zárpele, to the ground. Eddie Tate went behind Scruggs at which time, according to testimony, [Appellant] began shooting. Gun fire ensued on both sides, including gun fire from further up the block where two additional co-defendants, Michael Stelly and Rash-iek High, were located. The decedent, Jovonne Stelly, was the [sister] of Mr. Stelly and the wife of Mr. High. She was in the middle of the street, attempting to remove her sister from the crossfire when she was struck by a bullet.
A post-mortem examination of Jovonne Stelly was perfonned on March 26, 2007, where it was determined that the cause of death was a gunshot wound to the head/neck; the manner of death was homicide. Three other victims sustained gunshot injuries: Scruggs was shot in the chest, a Kendall Sterns was shot in the arm and a Kalif Lee was shot in the leg. While there were numerous gunshot injuries, Ms. Stelly was the only fatality.
After the incident, [Appellant] fled Philadelphia. For months police attempted to locate him and he was finally apprehended in Williamsport, Pa. Upon being approached by an officer, [Appellant] resisted arrest and moved his hand toward his waistband. The officer and [Appellant] then engaged in a struggle over a gun [Appellant] was carrying that culminated in [Appellant’s] arrest.

(Trial Court Opinion, filed August 18, 2010, at 2-3). The trial court further states the relevant procedure of this case as follows:

[Appellant] was arrested and charged with murder, generally, criminal conspiracy, and aggravated assault....
[Appellant] was tried jointly with four additional defendants by this [c]ourt, sitting without a jury, in April 2009. At the conclusion of trial, [Appellant] was found guilty of Murder in the Third Degree, Criminal Conspiracy, and two counts of Aggravated Assault. On [June 2, 2010], [Appellant] received concurrent sentences of twelve-and-one-half to twenty-five years, ten to twenty years, and two sentences of ten to twenty years on the above charges, respectively.
Following the imposition of the sentence, [Appellant] filed a post-sentence motion which was denied. [Appellant] thereafter, filed a notice of appeal as well as [a] requested [Rule] 1925(b) statement.

(Id. at 1).

Appellant raises two issues for our review:

IS [APPELLANT] ENTITLED TO AN ARREST OF JUDGMENT ON ALL CHARGES, WHERE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT AND WHERE THE COMMONWEALTH DID NOT PROVE THE CASE BEYOND A REASONABLE DOUBT?
IS [APPELLANT] ENTITLED TO A NEW TRIAL ON ALL CHARGES WHERE THE VERDICT IS AGAINST THE GREATER WEIGHT OF THE EVIDENCE AND WHERE THE VERDICT IS ONLY SUPPORTED BY SUSPICION, CONJECTURE AND SURMISE?

(Appellant’s Brief at 3).

As a prefatory matter, during the pendency of this counseled appeal, Appellant filed a pro se application on November 1, 2010, for remand and appointment of new counsel, based on allegations of ineffective assistance of current court-appointed counsel. By order dated December 9, 2010, this Court denied the motion and directed the Prothonotary to forward a copy of the pro se motion to counsel. On *1143 January 11, 2011, counsel responded to Appellant’s pro se application for remand, and this Court deferred the response, by order dated February 22, 2011, to the panel assigned to decide the merits of the appeal.

We begin with an examination of the Pennsylvania Supreme Court’s recent decision in Commonwealth v. Jette, — Pa. -, 23 A.3d 1032 (2011). In Jette, the Supreme Court reconfirmed its prior precedent in Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993) (“Ellis II”) (precluding consideration of pro se claims of ineffective assistance of appellate counsel on direct appeal, while that counsel is still representing appellant). 2 The Court explained its holding in Ellis II did not support the practice of requiring appellate counsel to petition for remand upon defendant’s filing of a pro se petition alleging appellate counsel’s ineffectiveness. Jette, supra at 1039. Rather than substantiating this defacto hybrid representation regime, the Court stated: “Ellis II specifically condemns the practice of filing separate pro se briefs” on appeal and reaffirmed “the Superior Court’s past policy of requiring the litigant to make a choice between a counseled appeal and self-representation.” Id. Further, the Jette Court explained, “with respect to direct appeals, a remand for the appointment of new counsel was never countenanced.” Id.

In the Jette decision, the Supreme Court wholly abrogated the procedure described in Commonwealth v. Battle, 879 A.2d 266 (Pa.Super.2005), appeal denied, 588 Pa. 746, 902 A.2d 1238 (2006) 3 and clarified the process by which a defendant may pursue claims of ineffective assistance of appellate counsel in the context of post-conviction collateral proceedings:

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Cite This Page — Counsel Stack

Bluebook (online)
26 A.3d 1139, 2011 Pa. Super. 163, 2011 Pa. Super. LEXIS 2221, 2011 WL 3370881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-devine-pasuperct-2011.