Commonwealth v. Ross

856 A.2d 93, 2004 Pa. Super. 269, 2004 Pa. Super. LEXIS 2217
CourtSuperior Court of Pennsylvania
DecidedJuly 13, 2004
StatusPublished
Cited by30 cases

This text of 856 A.2d 93 (Commonwealth v. Ross) 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. Ross, 856 A.2d 93, 2004 Pa. Super. 269, 2004 Pa. Super. LEXIS 2217 (Pa. Ct. App. 2004).

Opinion

OPINION BY BOWES, J.:

¶ 1 Donald Ross appeals from the judgment of sentence imposing an aggregate term of imprisonment of one year less one day to two years less two days followed by twenty-one months probation entered on three criminal complaints. A jury convicted Appellant of recklessly endangering another person (“REAP”) and criminal mischief, a judge sitting without a jury convicted him of simple assault and harassment, and he pled guilty to harassment, stalking and criminal mischief. We affirm.

¶2 The following facts are relevant to our review. On the evening of January 26, 2002, Floyd Peterson was descending the stairwell of his fiancée’s apartment building when he looked out of a window and observed a bald man emerge from beneath Mr. Peterson’s vehicle with a yellow object in his hand. The vehicle was parked across a well-lit street about thirty feet away from the window where Mr. Peterson first observed the man. Mr. Peterson thought that the man probably had dropped the yellow object and was in the process of retrieving it when he noticed him.

¶ 8 Thereafter, Mr. Peterson entered his vehicle and attempted to operate it. After traveling a short distance, however, Mr. Peterson realized that his brakes had failed completely. Mr. Peterson immediately placed the gearshift into the park position, stopped the vehicle, and examined its undercarriage. His initial examination revealed that brake fluid had splattered on the ground and undercarriage, and upon closer inspection, Mr. Peterson determined that the brake line had been cut.

¶4 After the incident, Mr. Peterson’s fiancée, Stacy Berron showed Mr. Peterson a photograph of Appellant and Mr. Peterson identified Appellant as the man he observed emerge from beneath the automobile. Appellant is Ms. Berron’s former boyfriend. In the days prior to the incident, Appellant had voiced his displeasure with Ms. Berron for dating Mr. Peterson, and he had been seen loitering around Ms. Berron’s apartment complex even though he lived more than ten miles away.

¶ 5 Appellant was arrested and charged at CC # 200204205 with REAP and criminal mischief for the events that occurred on January 26, 2002. As a result of different offenses committed against Ms. Berron and Mr. Peterson, Appellant was charged separately at CC #200113275 with two counts of simple assault and one count of harassment and criminal mischief, and at CC #200208030, with harassment, stalking and criminal mischief.

¶ 6 On August 5, 2002, following a nonju-ry trial, Appellant was convicted of simple assault and harassment at CC # 200113275. The next day, a jury convicted Appellant of REAP and summary criminal mischief at CC # 200204205. On October 16, 2002, Appellant pled guilty to harassment, stalking and criminal mischief. On that date, the trial court sentenced Appellant at all criminal complaints as follows: At CC # 200103275, Appellant was sentenced to six months time served for the simple assault and twenty-one months consecutive probation; at CC # 200204205, the court imposed a term of imprisonment of one year less one day to two years less two days for REAP and no further penalty for summary criminal mischief; at CC #200208030, the court imposed three years probation for harassment and stalking and no further penalty [96]*96for the criminal mischief offense. The trial court fashioned the sentence so that the probation commenced upon Appellant’s release from prison. No post-sentence motions were filed. This appeal followed.1

¶ 7 On appeal, Appellant first levels the claim that trial counsel was ineffective for failing to object, during the jury trial of CC # 200204205, to the trial court’s admission of evidence relating to Appellant’s prior conviction for simple assault and stalking at CC #200113275 because the court had not imposed sentence for those offenses. Next, Appellant argues that trial counsel was ineffective for failing to preserve a weight-of-the-evidence issue pursuant to Pa.R.Crim.P. 607. Finally, Appellant assails the trial court’s decision to admit evidence of Appellant’s prior convictions that were more than ten years old.

¶ 8 At the outset, we- must first determine whether we can address Appellant’s claims assailing trial counsel’s effectiveness. In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), our Supreme Court stated, “[A]s a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Id. at 67-68, 813 A.2d at 739. However, for the following reasons, we conclude that Grant does not preclude our review of Appellant’s ineffectiveness claims herein.

¶ 9 In Commonwealth v. Salisbury, 823 A.2d 914 (Pa.Super.2003), we recognized an exception to the general rule espoused in Grant where the short duration of the judgment of sentence would preclude collateral review. The defendant in Salisbury was convicted of driving with a DUI-related suspended license and sentenced to ninety days imprisonment. The defendant appealed from the judgment of sentence alleging that his trial counsel provided ineffective assistance. Faced with applying the general rule articulated in Grant, this Court addressed the defendant’s ineffective-assistance-of-counsel claim on direct appeal because strict application of Grant would have denied the defendant of his appellate rights. We reasoned that since a petitioner must be serving a sentence of imprisonment, probation, or parole to be eligible for relief under 42 Pa.C.S. 9543(a)(1), the defendant would have been precluded from raising his claim in a collateral petition under the PCRA due to the short duration of the ninety-day term of imprisonment.

¶ 10 While we acknowledge that Appellant’s aggregate judgment of sentence includes two significant periods of consecutive probation, probation was not imposed upon the convictions at CC #200204205, the matter that relates to Appellant’s ineffectiveness claims. Indeed, the only sentence imposed upon Appellant for his conviction under CC # 200204205 was a one year less one day to two years less two days term of imprisonment. Considering that sentence was imposed on October 16, 2002, the longest term Appellant may serve for this conviction extends to October 14, 2004. Hence, Appellant’s ineffectiveness claim likely will not be cognizable under the PCRA, and in accordance with Salisbury, supra, we will address the merits of his ineffectiveness claim on direct appeal. Compare Commonwealth v. Simmons, 2004 PA Super 71, 846 A.2d 142 (review of ineffectiveness claim inappropriate on direct appeal where sentence of eleven and one-half to twenty three months incarceration followed by probation afforded opportunity to challenge [97]*97counsel’s effectiveness on collateral review).

¶ 11 Appellant’s first ineffective assistance of counsel claim concerns trial counsel’s failure to object, during the CC# 200204205 jury trial, to evidence admitted regarding Appellant’s prior conviction for simple assault at CC # 200113275. According to Appellant, evidence of the earlier conviction was inadmissible because the court had not yet imposed sentence on the simple assault conviction.

¶ 12 Our well-established standard of review is as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
856 A.2d 93, 2004 Pa. Super. 269, 2004 Pa. Super. LEXIS 2217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ross-pasuperct-2004.