Commonwealth v. Taverno

30 Pa. D. & C.4th 545, 1996 Pa. Dist. & Cnty. Dec. LEXIS 311
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedMarch 13, 1996
Docketno. 1805-94
StatusPublished

This text of 30 Pa. D. & C.4th 545 (Commonwealth v. Taverno) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Taverno, 30 Pa. D. & C.4th 545, 1996 Pa. Dist. & Cnty. Dec. LEXIS 311 (Pa. Super. Ct. 1996).

Opinion

CARPENTER, J.,

FACTS AND PROCEDURAL HISTORY

The appellant, Anthony Tavemo, entered an open guilty plea on December 20, 1995, to the charges of driving under the influence of alcohol, 75 Pa.C.S. §3731,1 and accidents involving damage to attended vehicle or property, 75 Pa.C.S. §3743. The appellant entered his open guilty plea after a jury had found him guilty of the charges, on November 2, 1995, but before we imposed sentence. The appellant did not seek to withdraw his guilty plea prior to the imposition of sentence. This court sentenced the appellant to undergo imprisonment for not less than 40 days but not more than 23 months, with a commitment date to begin on January 2, 1996.

At trial, the Commonwealth presented the jury with evidence, that on November 12, 1993, a uniformed patrol officer of the East Norriton Police Department responded to a vehicle accident at the intersection of Germantown Pike and Stoney Creek Road, Montgomery [548]*548County, Pennsylvania. Upon arriving at the scene, the officer observed a red Cadillac Eldorado, bearing Pa. registration no. AFJ-4209,2 that had struck a telephone pole. As the officer began to investigate, she observed someone, whom she later learned was the appellant running from the scene of the accident. She radioed for assistance, and began her pursuit. The appellant was apprehended within 100 yards of the accident scene, trying to hide on the banks of the Stoney Creek. Upon apprehension, the appellant struggled with the officers, who testified that they noted a strong odor of an alcoholic beverage on the appellant’s breath. Additionally the appellant made several spontaneous inculpatory remarks. At this point they transported the appellant to the hospital where he was treated for injuries that he received during the accident.

While at the hospital, the officers advised the appellant of his rights regarding the implied consent laws of this Commonwealth and following his consent, two vials of blood were taken from his arm. The vials were placed properly into the chain of evidence, with the parties initialing and sealing the approved lab kit. This kit was then sent to National Medical Services for drug and alcohol testing.3

Following the Commonwealth’s case, the appellant testified on his own behalf. He told the jury that he had not been driving on the night of the accident. Rather, he claimed that it was his son who was driving, and that after the accident his son fled the scene before the police had arrived. Despite his claims the appellant [549]*549never called his son to testify during the trial. The jury returned a verdict on November 1, 1995, finding the appellant guilty on all the charges.

The sentencing proceeding was held on December 20, 1995. At the sentencing the appellant presented no new evidence, and we heard argument from both the appellant’s counsel and from the Commonwealth. Following the Commonwealth’s argument, the appellant stated that he would be pursuing an appeal, and that to those ends he requested that bail remain the same. In addressing the Commonwealth’s position on the bail issue, the assistant district attorney asserted that pursuant to Pa.R.Crim.P. 4010, it was within the court’s discretion to grant or deny bail while the appeal was pending.4 The appellant’s attorney responded to this only by again requesting that bail remain the same.

Based on the evidence introduced at trial, we determined that the appellant was a danger to himself and to others in the community, so therefore we denied bail, intending to impose the sentence forthwith. As we were in the process of putting our findings5 on the record, the appellant’s attorney interrupted, and asked to speak with the assistant district attorney. Following the discussion, the appellant’s attorney informed this court that the appellant was prepared to enter an open guilty plea. In accordance with his plea, the appellant then took the witness stand and was questioned by [550]*550his attorney regarding his choice to enter an open guilty plea. His attorney used a guilty plea colloquy, which addressed the issue of whether the appellant was making a knowing, intelligent and voluntary decision to plead guilty. The appellant testified that he understood the consequences of his actions; that he understood an open guilty plea carried no agreement as to what sentence would be imposed by the court and that he still wanted to enter the open plea. Beyond this verbal inquiry the appellant also signed a written form that was admitted into the record, again probing the voluntariness of the appellant’s actions. Finally the appellant was informed that his open guilty plea would limit his rights to appeal and preclude any rights of appeal arising from errors that may have occurred during the trial, except ineffective assistance of counsel. The appellant answered each of these questions in the affirmative, and still chose to enter an open guilty plea. As the factual basis for open guilty plea, the appellant testified that he was in fact driving the vehicle on November 12, 1993 while under the influence of alcohol.

After determining that the appellant was making a knowing, intelligent and voluntary decision, this court accepted the appellant’s open guilty plea, and sentenced the appellant on the driving under the influence offense to undergo imprisonment for not less than 40 days nor more than 23 months in the county correctional facility. Additionally, he was to pay a $300 fine, undergo a CRN evaluation, complete safe-driving school, enter an alcohol treatment program that the county probation department deemed appropriate, and to perform 40 hours of community service. On the accidents involving damage to attended vehicle or property offense the appellant was sentenced to undergo a concurrent term of im[551]*551prisonment. Finally this court made the appellant eligible for the work release program. Pursuant to the appellant’s request, the appellant’s sentence was to begin on January 2, 1996.

Nine days after this court imposed the appellant’s sentence, the appellant’s new counsel petitioned this court for a stay of the order of commitment, stating only that he intended to file post-trial motions pursuant to Pa.R.Crim.P. 1410. Despite his stated intention, the appellant never filed any post-trial motions but rather, on January 16, 1996, filed a notice of appeal from this court’s orders entered on November 1, 1995, November 13, 1995, and December 20, 1995.

ISSUES

(1) Whether the appellate court should reach the merits of the appellant’s claims that errors were made during the trial?

(2) Whether the appellant received effective assistance of counsel?

DISCUSSION

(1) The Appellate Court Does Not Need To Reach the Merits of the Appellant’s Claims That the Trial Court Erred.

At the outset, this court notes that the appellant’s concise statement on matters complained of on appeal merely asserts a number of alleged errors; it fails to request any particular form of relief. He has not asked to withdraw his open guilty plea nor has he asked for a new trial.

[552]*552In the appellant’s concise statement of matters complained of on appeal, he raises 10 issues of alleged error.

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Cite This Page — Counsel Stack

Bluebook (online)
30 Pa. D. & C.4th 545, 1996 Pa. Dist. & Cnty. Dec. LEXIS 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-taverno-pactcomplmontgo-1996.