Commonwealth v. Rosendary

818 A.2d 526, 2003 Pa. Super. 68, 2003 Pa. Super. LEXIS 295

• Court: Superior Court of Pennsylvania
• Decided: February 24, 2003
• Status: Published

Opinions

OPINION BY

CAVANAUGH, J.:

¶ 1 Jeffrey Mario Rosendary appeals from the judgment of sentence of from six months to two years imprisonment imposed after he was convicted by a jury of resisting arrest. His only claims on direct appeal raise allegations of trial counsel’s ineffectiveness. There was no hearing conducted on those claims before the trial court. Our supreme court in Commonwealth v. Grant, - Pa. -, 813 A.2d 726 (2002), recently set forth a new general rule providing that parties “should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Id. at 738. While the new rule does not appear to absolutely prohibit raising a claim of trial counsel’s ineffectiveness on direct appeal, particularly where counsel’s ineffectiveness might be apparent and estab-lishable from the existing record, see id., at 738 n. 14, under the circumstances of the present ease, where counsel’s ineffectiveness is not apparent of record, where no evidentiary hearing on counsel’s effectiveness has yet been conducted and where our review of counsel’s stewardship would require consideration of “extra-record” facts, we conclude that the allegations must be dismissed. Accordingly, applying the new rule to the instant case, we affirm the judgment of sentence and dismiss the claims regarding trial counsel’s ineffectiveness without prejudice to raise them in a subsequent proceeding under the Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541-9546. Id., at 739.

¶ 2 The facts show that on August 4, 2001, responding to a report of domestic violence by appellant against his long-term paramour, Mandy L. Rekitt, at least six Erie police officers confronted appellant on the steps of his mother’s home at 310 Sassafras Street at approximately 5:30 a.m. Appellant had just arrived at his mother’s home after having had an argument with Ms. Rekitt at her home some six blocks away.

¶ 3 Two officers initially approached appellant on the porch and spoke to appellant in a calm tone, asking permission to speak with him. Appellant ignored the question and began knocking on the door and ringing the doorbell to his mother’s home. Appellant’s mother did not immediately answer the door and a conversation between appellant and the police ensued which lasted between two to five minutes. Conflicting versions of what happened next were presented at trial.

¶ 4 The Commonwealth presented evidence that appellant was told he was being arrested on a domestic violence complaint; that when appellant’s mother eventually opened the door, appellant attempted to run inside. The officers then grabbed him but appellant actively resisted arrest, such that six officers were required to subdue him and in the process, appellant was punched three times by one of the officers in the small of the back.

¶ 5 Appellant maintained he was not told he was under arrest. He asked the officers, “What did I do?” He was told, “ you didn’t do anything, we just want to talk to you.” Appellant’s mother then opened the door and appellant took one step toward the threshold. As he did so, the officers grabbed him, dragged him off the porch, slammed him into the cement walkway, kicked him and punched him in the face.

¶ 6 Appellant was arrested and taken to the police station where pictures were taken of his condition. These pictures apparently showed some lacerations on appellant’s hands and some minor bruising about his face and back. Subsequently, appellant was taken to the county jail but was reportedly not immediately processed due to his injuries. Rather, appellant was taken to a hospital emergency room where numerous x-rays were taken. Several hours later he was returned to the county jail and imprisoned.

¶ 7 At trial, appellant’s defense was that he did not resist arrest but was himself the victim of police brutality. The only evidence presented by the defense in its casein-chief was the testimony of appellant and his mother. The jury, after approximately five hours of deliberation, acquitted appellant of disorderly conduct, but convicted him of resisting arrest. He was sentenced on February 14, 2002. No post-sentence motions were filed but appellant filed a pro se notice of appeal from the judgment of sentence on March 8, 2002. His subsequent petition for leave to proceed in for-ma pauperis was granted, counsel was appointed and a Rule 1925(b) statement of matters complained of on appeal was filed which stated as follows:

Trial counsel was ineffective for failing to present as evidence the hospital records to substantiate Defendant’s claim that he was beaten by the police. Without the records, there was nothing other than Defendant’s and his mother’s testimony to establish he was injured and to refute the photograph taken by the police when Defendant was booked showing little injury. Trial counsel was also ineffective for failing to argue to the jury that bruising would not necessarily be present right after the injury or calling as a witness the person at the county jail who would not admit Defendant until he was seen at the hospital. Without this evidence, the jury believed Defendant was lying about being beaten. The evidence would have shown the seriousness of Defendant’s injuries and supported Defendant’s claim, thus affecting the outcome of the trial.

¶ 8 The trial court’s Rule 1925(a) opinion suggested that appellant’s claim regarding counsel’s failure to call the witness who could have allegedly substantiated appellant’s need for treatment prior to admission into the county jail lacked merit because there was no identification of the potential witness’s name nor did appellant include an affidavit from that witness stating that he or she would have, in fact, testified. With respect to trial counsel’s alleged ineffectiveness for failure to obtain and present the medical records relating to appellant’s post-arrest' emergency room treatment, the court concluded that it was “unable to determine what the medical records contained, or if they even exist, based on the information of record.” The court concluded that superior court should remand the matter for an evidentiary hearing “to determine the sole issue of exactly what medical records, if any, were available to the Appellant to determine whether or not Appellant’s trial counsel had a reasonable basis for not introducing such evidence.”

¶ 9 In the present appeal from the judgment of sentence, appellant raises the same claims of counsel’s ineffectiveness which were raised in the concise statement presented to the trial court. Under the law of Pennsylvania prior to the recent Grant decision, we might have been inclined to remand for an evidentiary hearing to determine the issue(s) regarding trial counsel’s effectiveness. However, in Grant, our supreme court disapproved of such practice under similar circumstances. Therein, appellant argued on direct appeal that:

trial counsel was ineffective for failing to call two witnesses. The Superior Court dismissed both of these claims for lack of adequate development. [On al-locatur review], Appellant argues that the Superior Court action was improper. According to Appellant, the procedural rules prescribed by this court require an appellant to confine his issues raised on appeal to those contained in the record. Thus, the rules prevented Appellant from supplementing the record on appeal and rendered him incapable of providing concrete evidence, through reports or documents, regarding the alleged ineffectiveness. Thus, Appellant concludes that rather than dismissing the claims for inadequate development, the Superior Court should have remanded the claims to the trial court in order to give him the opportunity to fully develop his claims.

Grant, supra, at 731-32.

¶ 10 The supreme court disagreed and set forth a new rule which provides that, generally, claims of trial counsel’s ineffectiveness should not be raised until the time of collateral review. The court concluded that “deferring review of trial counsel ineffectiveness claims until the collateral review stage of the proceedings offers a petitioner the best avenue to effect his Sixth Amendment right to counsel.” Id., at 738. Central to the court’s analysis was that the prior “unbending” rule which provided that, in order to defeat waiver, a claim of ineffectiveness must be presented at the first procedural opportunity after which the defendant is no longer represented by allegedly ineffective counsel was fraught with a “myriad of impracticalities.” Commonwealth v. Grant, 813 A.2d at 726. Not the least of these was that new appellate counsel, under a thirty-day deadline to file an appeal from a judgment of sentence, had little time to investigate or adequately present claims of trial counsel’s ineffectiveness as such claims frequently and necessarily required counsel’s presentation of “extra-record” facts. Id., at 736. Moreover, our supreme court opined that Pennsylvania appellate courts had to necessarily engage in some fact-finding and consideration of evidence not of record in assessing such claims. Id., at 734. The court noted that “many of these [ineffectiveness] claims are based on omissions, which, by their very nature, do not appear of record and thus, require further fact-finding, extra-record investigation and where necessary, an evidentiary hearing.” Id. at 736.

¶ 11 Thus, the court reversed the long-standing precedent of the former rule as announced in Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975) and Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), requiring that ineffectiveness claims be raised at their earliest opportunity. The court set forth the new rule which provides that a claim of trial counsel’s ineffectiveness will no longer be waived simply because counsel raising the claim is not trial counsel’s immediate successor. Id., at 738. Rather, the court concluded that a party should wait to raise a claim of ineffective assistance of trial counsel until the time of collateral review. Id.²

¶ 12 Here, the concerns regarding extra-record claims and accompanying impracticalities of proof which led to the court’s replacement of the old rule exist. Appellant claims that trial counsel should have presented, but did not, the testimony of an unnamed witness. Appellant claims that trial counsel should have introduced into evidence, but did not, a medical record which would have substantiated the severity of appellant’s injuries. Appellant claims that trial counsel should have argued, but did not, that bruises from a beating sometimes do not show up until hours after the trauma has occurred. None of these claims reveal a clear record showing of counsel’s ineffectiveness. Rather, all these claims require an evidentiary hearing to consider documentary and testimonial evidence not currently of record.

¶ 13 The supreme court concluded in Grant that:

... [T]he new rule we announce today will apply to the instant case as well as those cases currently pending on direct appeal where issues of ineffectiveness have been properly raised and preserved.

Applying the new rule to the instant case, the claims regarding trial counsel’s ineffectiveness will be dismissed without prejudice. Appellant can raise these claims in addition to other claims of ineffectiveness in a first PCRA petition and at that time the PCRA court will be in a position to ensure that Appellant receives an evidentiary hearing on his claims, if necessary. Accordingly, consistent with our holding today, the order of the Superior Court, affirming Appellant’s judgment of sentence is affirmed. Id., at 739.

¶ 14 The judgment of sentence is affirmed without prejudice to appellant to raise whatever claims of trial counsel’s ineffectiveness he deems meritorious on a subsequent PCRA petition.

¶ 15 Judgment of sentence affirmed.

¶ 16 Judge GRACI files a concurring opinion.

2 . We reiterate that it does not appear that the rule is absolute:

[T]he rule announced today is limited by the issues raised in this case. Appellant does not raise an allegation that there has been a complete or constructive denial of counsel or that counsel has breached his or her duty of loyalty. Under those limited circumstances, this court may choose to create an exception to the general rule and review those claims on direct appeal. However, as there is no issue raising such a question in this case, such consideration is more appropriately left to another day.

Id., at 738, n. 14. We would additionally note that the new rule leaves open the issue regarding the propriety of raising a claim on direct appeal of trial counsel’s ineffectiveness which is apparent of record. Although trial counsel's effectiveness is, of course, presumed, where counsel’s ineffectiveness is established by the existing record, it would appear that the new rule would not prohibit this court from reviewing and determining the issue on direct appeal, if raised. Indeed, the supreme court stated in Grant that although "parties may rely on the old rule[,]” retroactive application of the new rule will best serve both parties because defendants "will no longer be compelled to raise ineffectiveness claims on an undeveloped record[.]” Id., at 739.