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Commonwealth v. Deep

SUPERIOR COURT OF PENNSYLVANIA
Apr 16, 2018
No. J-S85036-17 (Pa. Super. Ct. Apr. 16, 2018)

Opinion

J-S85036-17 No. 1149 WDA 2017

04-16-2018

COMMONWEALTH OF PENNSYLVANIA Appellee v. RALPH HERBERT DEEP, JR. Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered July 7, 2017
In the Court of Common Pleas of Westmoreland County
Criminal Division at No: CP-65-CR-0005035-2014 BEFORE: BOWES, PANELLA, and STABILE, JJ. MEMORANDUM BY STABILE, J.:

Appellant, Ralph Herbert Deep, Jr., appeals from the July 7, 2017 judgment of sentence imposing an aggregate two to four years of incarceration for aggravated assault and related offenses. We affirm.

The trial court's opinion provides a brief summary of the pertinent facts:

The charges in this case arose out of an investigation of [Appellant] in connection with two incidents that occurred in a Trafford neighborhood, in Westmoreland County, on October 11, 2014. The first incident involved [Appellant] entering the front yard of his neighbor's property holding a rifle and saying that, 'When I find you, I'm going to shoot you.' The second incident involved [Appellant's] refusal to comply with police officers' commands to drop his weapon and he continued to advance towards the officers while pumping a shotgun.
Trial Court Opinion, 9/18/17, at 1.

After Appellant pled guilty and then successfully withdrew his plea, this case proceeded to a jury trial that occurred on September 12-14, 2016. The jury found Appellant guilty of two counts of aggravated assault, terroristic threats, institutional vandalism, and public drunkenness. The trial court imposed a two to ten year sentence on January 26, 2017, and Appellant filed post-sentence motions seeking reconsideration of the sentence and alleging ineffective assistance of counsel. In order to obtain review of counsel's effectiveness on direct review, Appellant agreed to waive his right to seek collateral relief. The trial court denied a new trial based on counsel's alleged ineffectiveness, but granted reconsideration and imposed a sentence of two to four years of incarceration on July, 7, 2017. This timely appeal followed.

Appellant did not file his post-sentence motions within ten days of the January 26, 2017 sentence, as required under Pa.R.Crim.P. 720. Appellant nonetheless sought and received permission to file post-sentence motions nunc pro tunc. According to counsel's handwritten date at the end of his nunc pro tunc motion, the motion was filed on Monday, February 27, 2017, the thirtieth day of the appeal period. A handwritten date on the trial court's order indicates that the court granted relief on the same date. Another handwritten notation on the order indicates that the assistant district attorney consented to the order on February 27, 2017. We observe that the motion and order are time-stamped March 7, 2017, and the certified docket indicates March 7, 2017 as the date of receipt of Appellant's motion. Given the agreement among the prosecution, defense, and trial court that the motion was filed and granted on February 27, we will treat the March 7 time stamp as the result of a breakdown in the court's filing system. Because Appellant sought and received, within thirty days of the January 26, 2017 judgment of sentence, the trial court's express permission to file post sentence motions nunc pro tunc, the court's jurisdiction did not lapse. Commonwealth v. Dreves , 839 A.2d 1122, 1128 (Pa. Super. 2003).

Appellant presents the following question for our review:

Whether the court below erred in finding that Appellant was not entitled to a new trial due to the ineffective assistance of trial counsel in the following particulars:

a. Referring to Appellant as an 'idiot' and 'stupid drunk' in his closing;

b. Advising the jury that Appellant's actions were reckless during his closing;

c. Encouraging the jury to convict [Appellant] of certain offenses; and

d. Failing to call Donna DiCesare as a witness.
Appellant's Brief at 3. As noted above, Appellant's ineffective assistance claims were the subject of a hearing before the trial court. In Commonwealth v. Holmes , 79 A.3d 562 (Pa. 2013), our Supreme Court held that a defendant can obtain review of claims of ineffective assistance of counsel on direct appeal if he executes a waiver of his subsequent right to seek relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. Appellant requested direct review of his ineffective assistance claims because of his short sentence. The Holmes Court acknowledged short sentences as good cause to request direct review of ineffective assistance claims. Holmes , 79 A.3d at 578-79. The Holmes Court further specified that a PCRA waiver must acknowledge (1) the exhaustion of a defendant's first PCRA petition and (2) that any further collateral attack is subject to § 9545(b) of the PCRA. Id. at 579. Appellant's waiver, attached as "Exhibit A" to his nunc pro tunc post sentence motion, complies with Holmes. We will therefore review the merits.

In his brief, Appellant states that he will likely be paroled before the conclusion of his direct appellate review. Appellant's Brief at 5 n.1. We remind Appellant that parolees are eligible for PCRA relief. 42 Pa.C.S.A. § 9543(a)(1)(i). Regardless, we will not disturb the trial court's decision to accept Appellant's waiver and conduct a hearing on his ineffective assistance claims. The trial court explained: "At the time of filing post-sentence motions, [Appellant] had already served 1½ years [of] incarceration." Trial Court Opinion, 9/18/17, at 6. "As [Appellant's] case involves a short sentence, and he has expressly, knowingly, and voluntarily waived PCRA review, this Court is of the opinion that [Appellant's] claims of ineffective assistance of counsel are appropriately before this court on direct appeal." Id.

Section 9545(b) permits PCRA petitions where the failure to raise the claim was the result of government interference; is based on newly discovered facts; or is based on a right newly recognized by the United States or Pennsylvania Supreme Courts. 42 Pa.C.S.A. § 9545.

To succeed on a claim of ineffective assistance of counsel, the defendant must plead and prove that (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for the action or inaction; and (3) that but for counsel's error, the outcome of the proceeding would have been different. Commonwealth v. Reyes-Rodriguez , 111 A.3d 775 ,780 (Pa. Super. 2015 (en banc), appeal denied , 123 A.3d 331 (Pa. 2015). A petitioner must establish all three prongs of this test, and must discuss all three factors son appeal. Id. Failure to do so will result in rejection of the claim. Counsel is presumed effective, and the petitioner bears the burden of proving otherwise. Id.

Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests. Trial counsel
will not be deemed ineffective for failing to assert a claim that would not have been beneficial, or for failing to interview or present witnesses whose testimony would not have been helpful. Nor can a claim of ineffective assistance generally succeed through comparing, by hindsight, the trial strategy employed with alternatives not pursued. A finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.
Commonwealth v. Howard , 719 A.2d 233, 237 (Pa. 1998) (citations omitted).

Upon review of the applicable law, the parties' briefs, the record, and the trial court opinion, we conclude that the trial court's September 18, 2017 opinion accurately addresses paragraphs "a," "b," and "c" of Appellant's ineffective assistance of counsel argument. In particular, we agree with the trial court that counsel had a reasonable strategic basis for portraying Appellant as drunk and foolish. Counsel hoped to develop credibility with the jury and procure a conviction for recklessly endangering another person ("REAP") rather than aggravated assault. We reject Appellant's argument on the basis of the trial court opinion.

18 Pa.C.S.A. § 2705. The jury acquitted Appellant on the REAP charge but found him guilty of aggravated assault.

Next, Appellant argues that counsel was ineffective for failing to call Donna DiCesare as a witness.

[R]egarding the failure to procure a witness's testimony, a petitioner must demonstrate: (1) the witness existed; (2) counsel was either aware of or should have been aware of the witness' existence; (3) the witness was willing and able to cooperate with
the defense; and (4) the defendant was prejudiced by the absence of the witness testimony.
Commonwealth v. Simpson , 66 A.3d 253, 271 (Pa. 2013).

DiCesare, a witness at the ineffective assistance hearing, would have testified that police were pressuring her to testify, falsely, that Appellant stole from DiCesare's father the weapon he brandished during the offenses. N.T. Hearing, 5/8/17, at 24. DiCesare also would have testified that police threatened her after she refused to offer fabricated testimony. Id. at 26. Appellant cites no law in support of this argument, nor does he explain how DiCesare's testimony was in any way relevant to his defense against any of the charges pending against him. We could find Appellant's argument waived for this reason alone. Pa.R.A.P. 2119(b); Commonwealth v. Williams , 959 A.2d 1252, 1258 (Pa. Super. 2008).

In any event, counsel testified that he did not call DiCesare because she was not a witness to the incidents in question and therefore had no relevant testimony to offer. N.T. Hearing, 5/8/17, at 7. Furthermore, counsel testified that it was an argument between Appellant and DiCesare that precipitated his conduct on the day in question. Id. at 6. Appellant wanted the keys to a car, and DiCesare refused because Appellant was drunk. Id. Finally, presenting DiCesare as a character witness would have opened the door to Appellant's prior record. Id. at 7-8. In summary, counsel concluded that DiCesare had nothing relevant to offer, and that in some ways her testimony could be detrimental to the defense. We further observe that DiCesare testified that she was romantically involved with Appellant and that, at the time of the offenses, Appellant was growing marijuana in DiCesare's basement. Id. at 24, 27.

Based on all of the foregoing, we conclude that Appellant was not prejudiced by the absence of DiCesare's testimony. She was not an eyewitness to the charged conduct, her testimony about the police misconduct, even if credited by the jury, was not directly relevant to any of the charges Appellant was defending, and her testimony could have opened the door to unfavorable evidence. The trial court did not error in finding no merit to Appellant's argument.

For all of the foregoing reasons, we conclude that Appellant's ineffective assistance of counsel arguments lack merit.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/16/2018

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Summaries of

Commonwealth v. Deep

SUPERIOR COURT OF PENNSYLVANIA
Apr 16, 2018
No. J-S85036-17 (Pa. Super. Ct. Apr. 16, 2018)
Case details for

Commonwealth v. Deep

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA Appellee v. RALPH HERBERT DEEP, JR. Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Apr 16, 2018

Citations

No. J-S85036-17 (Pa. Super. Ct. Apr. 16, 2018)