Commonwealth v. Kimball

683 A.2d 666, 453 Pa. Super. 193, 1996 Pa. Super. LEXIS 3214
Superior Court of Pennsylvania·Decided September 19, 1996·No. 952·Published·Cited by 13 cases

Opinions

JOHNSON, Judge:

In this appeal, we are asked to determine whether the court erred in denying Daniel Kimball’s petition for relief pursuant to the PosMDonviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. In that petition, Kimball alleged that his trial counsel was ineffective for various reasons. To address this question, we must also determine the proper standard of [196] review applicable to claims involving ineffective assistance of counsel raised under the PCRA. Because we find that trial counsel was ineffective, we reverse the order denying Kim-ball’s PCRA petition, vacate the judgment of sentence, and remand, this matter for a new trial.

In March 1988, Rosemary Kleinsmith (“the victim”) was found dead in her apartment. Following an investigation, Kimball was arrested and charged with murder. Kimball admitted at trial that he was involved in the victim’s death but denied that he intended to kill her. He testified that he argued with the victim, struck her in the throat, and that the victim fell against the wall and died. The Commonwealth asserted that Kimball willfully and deliberately killed the victim by strangulation. The jury convicted Kimball of first-degree murder, and the court sentenced him to a term of life imprisonment. This Court affirmed Kimball’s judgment of sentence, Commonwealth v. Kimball, 422 Pa.Super. 631, 613 A.2d 1261 (1992) (table), and our supreme court denied his petition for allowance of appeal.

Kimball then filed a PCRA petition, which was denied following a hearing. A panel of this Court reversed and remanded for a new trial, concluding that counsel was ineffective for failing to cross-examine Commonwealth witness James Shortridge concerning his motive for testifying and for calling Kimball’s adoptive father to testify that Kimball was untrustworthy, angry, defiant, dishonest, and violent throughout his lifetime. The Commonwealth filed a petition for reargument, and we granted that petition for purposes of determining the proper standard of review in cases involving PCRA petitions raising ineffectiveness claims.

We now consider the following issues, which we have renumbered for purposes of review:

1. Whether [42 Pa.C.S. § 9543(a)(2)(h) ] may [constitutionally be interpreted to require a petitioner to prove a higher standard of prejudice than required by the Sixth Amendment to the Constitution of the United States and Article 1, Section 9 of the Constitution of the Commonwealth pursuant [197] to Strickland v. Washington[, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] and Commonwealth v. Pierce[,] 515 Pa. 153, 527 A.2d 973 (1987)?
2. Was trial counsel ineffective for failing to cross-examine a critical Commonwealth witness on a promise of lenient treatment made to him by the Commonwealth?
3. Was trial counsel ineffective for calling [Kimball]’s father as a witness where the father offered testimony as to his view that [Kimball] had exhibited a life-long history of bad character and that [Kimball] was not to be trusted?
4. Was trial counsel ineffective for failing to object to police testimony that [Kimball] terminated police questioning concerning the present charges, thereby improperly offering evidence of [Kimball]’s invocation of his Constitutional Rights?
5. Was trial counsel ineffective for failing to object to repeated instances of police testimony commenting unfavorably on the credibility of [Kimball] and offering improper opinion as to the ultimate issue in the case?
6. Was trial counsel ineffective for failing to object to repeated testimony by various Commonwealth witnesses regarding the character of the victim and the circumstances of her death?
7. Was trial counsel ineffective for failing to offer evidence known to her of [Kimball]’s intoxication on the night of the homicide and to otherwise fail to request a voluntary intoxication instruction from the Court?

Brief for Appellant at 4; Supplemental Brief for Appellant at 2.

Initially, we consider what standard of review is applicable to claims alleging ineffective assistance of counsel under the PCRA. In Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-93 (1984), the United States Supreme Court set forth the following standard to be applied on direct appeal or in federal collateral proceedings when considering whether counsel was ineffective:

[198] The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
sH * * * * *
[To demonstrate that counsel was ineffective] the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.... [T]he defendant must [also] show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

(Emphasis added). Our supreme court adopted this standard in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Free access — add to your briefcase to read the full text and ask questions with AI

Commonwealth v. Kimball, 683 A.2d 666, 453 Pa. Super. 193, 1996 Pa. Super. LEXIS 3214 (Pa. Ct. App. 1996).

683 A.2d 666 (Commonwealth v. Kimball) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Commonwealth v. Copeland
723 A.2d 1049 (Superior Court of Pennsylvania, 1998)
Commonwealth v. Copenhefer
719 A.2d 242 (Supreme Court of Pennsylvania, 1998)
Commonwealth v. Drass
718 A.2d 816 (Superior Court of Pennsylvania, 1998)
Commonwealth v. Carbone
707 A.2d 1145 (Superior Court of Pennsylvania, 1998)
Commonwealth v. Balenger
704 A.2d 1381 (Superior Court of Pennsylvania, 1997)
Commonwealth v. Ellis
700 A.2d 948 (Superior Court of Pennsylvania, 1997)
Commonwealth v. Lassiter
696 A.2d 196 (Superior Court of Pennsylvania, 1997)
Commonwealth v. Patterson
690 A.2d 250 (Superior Court of Pennsylvania, 1997)
Commonwealth v. Stilley
689 A.2d 242 (Superior Court of Pennsylvania, 1997)
Commonwealth v. Ziegelmeier
685 A.2d 559 (Superior Court of Pennsylvania, 1996)
Commonwealth v. Kimball
683 A.2d 666 (Superior Court of Pennsylvania, 1996)