Commonwealth v. Ray

751 A.2d 233, 2000 Pa. Super. 126, 2000 Pa. Super. LEXIS 392
CourtSuperior Court of Pennsylvania
DecidedApril 20, 2000
StatusPublished
Cited by7 cases

This text of 751 A.2d 233 (Commonwealth v. Ray) 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. Ray, 751 A.2d 233, 2000 Pa. Super. 126, 2000 Pa. Super. LEXIS 392 (Pa. Ct. App. 2000).

Opinion

DEL SOLE, J.:

¶ 1 This is an appeal nunc pro tunc from a judgment of sentence of 10 to 20 years for Third Degree Murder and 1 to 5 years for Violation of the Uniform Firearms Act (“VUFA”). We vacate Appellant’s judgment of sentence for the VUFA charge and remand for resentencing.

¶ 2 The facts of this case were summarized by the trial court as follows:

On August 21, 1993, Jerry Phifer, the victim in this particular matter, was driving a vehicle on Deary Street in the City of Pittsburgh. The victim was accompanied by a friend, Byron Johnson, a.k.a Chris Green. Upon noticing several individuals in the area, including the Defendant, the victim stopped the vehicle and proceeded to inquire whether or not the individuals were affiliated with a specific gang. This inquiry escalated into arguments and threats. The arguments and threats lead [sic] to the Defendant firing a gun in the direction of the victim. After the shots were fired the victim fell into the car such that half his body was in the car and half was outside the car. The other parties, including the Defendant, immediately left the scene. Byron Johnson found an officer nearby and requested assistance. Later, when questioned, Byron Johnson identified the Defendant as the shooter.1 The victim sustained a gunshot wound to the head and died soon thereafter. The official cause of death was a gunshot wound to the head. On August 22, 1998, the Defendant was mirandized and interrogated. The Defendant admitted his involvement in the shooting and provided a taped statement to that effect.

Opinion, 2/9/99, at 3.

¶ 3 Following a jury trial, Appellant was convicted of Third Degree Murder and VUFA. He was sentenced to 10 to 20 years’ imprisonment on the Murder charge and a consecutive term of imprisonment of 1 to 5 years for the VUFA conviction. Appellant was subsequently granted the right to appeal nunc pro tunc and this appeal followed.

¶4 Appellant raises several claims on appeal. First, Appellant argues he is entitled to an arrest of judgment on the VUFA conviction because the Commonwealth failed to present sufficient evidence of the barrel length of the gun used to commit the instant crime. In addition, Appellant claims trial counsel was ineffective for failing to: 1) fully cross-examine prosecution witness, Byron Johnson, a.k.a. Chris Green, regarding his prosecutorial bias; 2) object to the jury instruction on flight where there was no evidence Appellant concealed his whereabouts or hid from police; and 3) object to the trial court’s improper calculation of his prior record score in determining his sentence for VUFA.

¶ 5 We will first address Appellant’s argument that the Commonwealth failed to present evidence of the gun’s barrel length and, therefore, did not establish that the gun employed in the shooting was a “firearm” as that term is used in 18 Pa.C.S.A. § 6106.2

¶ 6 In reviewing a sufficiency of the evidence claim, the test we apply is whether the evidence, and all reasonable inferences taken from the evidence, viewed in the light most favorable to the Commonwealth as verdict-winner, were sufficient to [236]*236establish all the elements of the offense beyond a reasonable doubt. Commonwealth v. Williams, 554 Pa. 1, 720 A.2d 679, 682 (1998) (citation omitted).

¶ 7 The term, “firearm,” was defined at the time of the instant offense in 18 Pa. C.S.A. § 6102 as “[a]ny pistol or revolver with a barrel less than 15 inches, any shotgun with a barrel less than 18 inches.” In the instant case, the Commonwealth’s expert testified that the bullet recovered from the victim was a nine millimeter cartridge buhet and the markings on the bullet were “consistent with a nine millimeter Ruger automatic load pistol” which “generally has a barrel length of four to four and one-half inches.” N.T., 2/1/95, at 146-147.

¶ 8 Appellant argues that based upon our supreme court’s decision in Commonwealth v. Todd, 477 Pa. 529, 384 A.2d 1215 (1978), the expert’s testimony was insufficient to establish the gun’s barrel length. In Todd, the Commonwealth’s expert testified the weapon used was “probably” a Smith and Wesson .38 cahber weapon but that he had “no idea” how long the gun’s barrel might have been. The court held that absent any evidence indicating the gun’s barrel length, the evidence was not sufficient to support appellant’s firearms conviction. Unlike the expert in Todd, however, the expert in the instant case was able to identify both the type of gun used and its barrel length. Accordingly, we hold the evidence was sufficient to support Appellant’s VUFA conviction.

¶ 9 Next, we turn to Appellant’s claims of trial counsel’s ineffectiveness. First, we note that trial counsel is presumed to be effective and Appellant has the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75, 81 (1990). In reviewing ineffectiveness claims, we must’ first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978). If not, we need look no further since counsel will not be deemed ineffective for failing to pursue a meritless issue. Commonwealth v. Lennox, 250 Pa.Super. 80, 378 A.2d 462 (1977). If there is arguable merit to the claim, we will then look to see whether the course chosen by counsel had some reasonable basis aimed at promoting his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). Further, there must be a showing that counsel’s ineffectiveness prejudiced Appellant’s case. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The burden of producing the requisite proof lies with Appellant. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). We cannot consider ineffectiveness claims in a vacuum; rather, appellant must set forth an offer to prove at an appropriate hearing sufficient facts to allow the reviewing court to conclude that counsel was ineffective. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Trial counsel’s decision as to matters of trial strategy cannot form the basis of a finding of ineffectiveness. Commonwealth v. Blassingale, 398 Pa.Super. 379, 581 A.2d 183 (1990). Finally, appellant must show that, but for counsel’s act or omission, there is a reasonable probability that the result would have been different. Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987).

¶ 10 Appellant asserts trial counsel was ineffective for failing to more fully cross-examine prosecution witness, Byron Johnson, who testified he was with the victim at the time of the shooting, about his pending juvenile court charges.

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Cite This Page — Counsel Stack

Bluebook (online)
751 A.2d 233, 2000 Pa. Super. 126, 2000 Pa. Super. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ray-pasuperct-2000.