Commonwealth v. Latham

19 Pa. D. & C.5th 225
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedNovember 19, 2010
Docketno. 1266 of 2008, CR
StatusPublished

This text of 19 Pa. D. & C.5th 225 (Commonwealth v. Latham) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Latham, 19 Pa. D. & C.5th 225 (Pa. Super. Ct. 2010).

Opinion

MOTTO, P.J.,

In the instant matter, the defendant shontee Latham, has filed motions for post-sentence relief which consist of a motion in arrest of judgment, motion for judgment of acquittal and a motion for a new trial raising eight issues of alleged [227]*227error, many of which involve allegations of ineffective assistance of counsel. The defendant alleges the following errors occurred:

I. The District Court erred in failing to dismiss to charge of terroristic threats with Intent to Terrorize Another [Pa.C.S.A. §2706(a)(l)] at his preliminary hearing because the circumstances spelled out in the police criminal complaint did not establish the elements of the charge.
II. Defendant’s first appointed counsel, Robert Barietta, was ineffective for failing to object when Commonwealth witness Sherbelle Hall offered hearsay testimony at the omnibus pre-trial motion hearing and speculated as to the dimensions of the firearm used in the crime.
III. Defendant’s first appointed counsel was ineffective for failing to argue at the omnibus pre-trial motion hearing that the prosecution did not prove a prima facie case as to all charges.
IV. The court erred in denying defendant’s omnibus pre-trial motion for habeas corpus relief.
V. Defendant’s trial counsel, Gerald Iwanejko, was ineffective for failing to impeach Commonwealth witness Sherbelle Hall on her multiple inconsistent statements, including her statements regarding the gun she claimed was in the defendant’s possession.
VI. Defendant’s trial counsel was ineffective for referencing hearsay evidence by alleging that an unavailable witness told Officer Newton that she observed the defendant in possession of a gun as the [228]*228submission of this hearsay evidence was prejudicial to the defendant and if not for trial counsel’s error the hearsay evidence would have been inadmissible.
VII.Defendant’s trial counsel was ineffective for failing to raise issues and preserve argument that the New Castle Police Department violated the defendant’s rights guaranteed under the 4th, 5th, 6th, and 14th amendments of the United States Constitution.
VIII. The court erred by denying the defendant’s motion judgment of acquittal at the close of Commonwealth’s case due to insufficiency of the evidence because the Commonwealth never produced the alleged firearm and there was no reliable proof provided to establish the essential element of barrel length.

On the evening of September 30, 2008, Sherbelle Hall was at her neighbor’s house at 219 West Lincoln Avenue in the Lincoln housing project in New castle hanging out with friends when she looked outside and saw the defendant leaning on a car that did not belong to him parked outside the residence. Ms. Hall recognized the defendant so she went outside and told him get off the car and when he wouldn’t leave she nudged him to try to make him move. The defendant told Ms. Hall that no one was going to disrespect him and proceeded to pull a gun out of his pocket and fired a bullet into the air right above her head. Ms. Hall started yelling at the defendant and began to walk away when the defendant started following her and telling her that no one was going to disrespect him. He pointed the gun at her chest and told her he would “put one in her.” Ms. Hall walked away from the defendant and went back to her house and called the police. Ms. Hall watched as the defendant entered his girlfriend’s house, [229]*229located right behind her house, at 335 Cuba Street. The New Castle Police Department responded and interviewed Ms. Hall and she advised them that the defendant had fired a gunshot above her head, held a gun to her chest and threatened to “put one in her,” and that after the incident the defendant went into Tracy Cuffia’s house located at 335 Cuba Street in the Lincoln housing project. The police went to that residence and tried knocking on the door and when no one would open the door they obtained the master key from the Lawrence County Housing Authority to gain entry. They tried unlocking the door several times and each time someone inside the house would slam the door shut and lock it again. The police eventually retrieved the ram from the police station and broke the door down to gain entry. The defendant was found in the upstairs bathroom taking a shower.

The defendant was arrested and charged with firearms not to be carried without a license1, recklessly endangering another person2, possession of a firearm prohibited3 and terroristic threats4. Trial commenced on April 20, 2010, and the defendant was subsequently convicted of all charges on April 22, 2010. As a result, the defendant was sentenced to a term of imprisonment of not less than five years nor more than ten years incarceration at a state correctional institution on August 5, 2010. The defendant has filed post-sentence motions, which include a motion for new trial, a motion for arrest of judgment and motion for judgment of acquittal.

First, the defendant claims that the Commonwealth did [230]*230not present sufficient evidence at the preliminary hearing to establish a prima facie case to the charge of terroristic threats. Defendant contends that the circumstances spelled out in the police criminal complaint did not establish the elements of the charge of terrorist threats, therefore, the district court erred in not dismissing the charge at his preliminary hearing.

It is well settled that the preliminary hearing serves a limited function. The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime. Commonwealth v. Fox, 619 A.2d 327, 332 (Pa. Super. 1993); Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. 1991). Appeal denied, 533 Pa. 39, 617 A.2d 1263 (1992)(quoting Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991(1983)). In other words, a preliminary hearing merely serves the function of determining whether a defendant should be discharged or bound over to court with or without bail. The Commonwealth must, however, establish a prima facie case as to all elements of the offenses charged.

A preliminary hearing was held on October 28, 2008, and the district court heard the testimony of Sherbellee Hall about the events that transpired on the night of September 30, 2008. All charges against the defendant were bound over to this court. The defendant’s contention that the charge of terroristic threats should be discharged based upon the insufficiency of the evidence at his preliminary hearing is meritless, as our supreme court has held that the failure to establish a prima facie case at a preliminary hearing is clearly immaterial where at the trial [231]*231the Commonwealth met its burden by proving the offense beyond a reasonable doubt. Commonwealth v. Troop, 571 A.2d 1084, 1088 (Pa. Super.

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Bluebook (online)
19 Pa. D. & C.5th 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-latham-pactcompllawren-2010.