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COMMONWEALTH PENNSYLVANIA v. JOHN SULLIVAN (02/28/77)

decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN SULLIVAN, APPELLANT (TWO CASES). COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. JOHN SULLIVAN



COUNSEL

Marilyn J. Gelb, Philadelphia, for appellant at Nos. 121 and 122 and appellee at No. 127.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James A. Shellenberger, Philadelphia, for appellant at No. 127 and appellees at Nos. 121 and 122.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., dissents in the appeal docketed at No. 127 and would reverse the order of the Court of Common Pleas granting the right to appeal nunc pro tunc. In appeals docketed at Nos. 121 and 122, he concurs in the results. Roberts, J., files a concurring and dissenting opinion in which Manderino, J., joins. Pomeroy, J., files a concurring and dissenting opinion, in which O'Brien, J., joins. Manderino, J., files a concurring and dissenting opinion, in which Roberts, J., joins.

Author: Nix

[ 472 Pa. Page 139]

OPINION

On the evening of June 17, 1966, John Gorey, an officer of Teamsters Union Local 107, and his friend, Rita Janda, were fatally shot at the local union's Philadelphia office building. In November of that year, on the basis of evidence presented at a Medical Examiner's inquest, John Sullivan, also an officer of the local, was charged with both murders.*fn1

Sullivan's jury trial began on June 7, 1967. On June 19, 1967, the jury found him guilty of two counts of murder in the first degree. The following day, the jury determined that Sullivan should be sentenced to serve two consecutive terms of life imprisonment.*fn2 Post-verdict motions were denied and judgments of sentence were entered.*fn3

Sullivan appealed to this Court and, because the Court was equally divided, the judgments of sentence were upheld. Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1970). This Court denied a petition for reargument and later denied a self-styled "Petition for Leave to File a Petition for Re-consideration of the Petition for Reargument."

In 1974, Sullivan filed a petition for relief pursuant to the Post Conviction Hearing Act*fn4 in the Court of Common

[ 472 Pa. Page 140]

Pleas of Philadelphia. In this petition he asserted that (1) his trial counsel had been ineffective; (2) his appellate counsel had been ineffective; (3) numerous prejudicial errors had been committed during his trial; (4) the evidence the Commonwealth adduced at trial was insufficient to support a conviction of murder in the first degree; and (5) after discovered evidence entitled him to a new trial. Sullivan requested that he be discharged, granted a new trial, or granted appropriate relief.

After a hearing, the court concluded that Sullivan had not received effective assistance of counsel on appeal. It therefore issued an order granting Sullivan leave to file a new appeal to this Court. The court denied Sullivan relief on his other claims finding that some were without merit and that others were available to him in his new direct appeal to this Court.*fn5

Three appeals resulted from the PCHA court's order. Appeal number 127 is the Commonwealth's appeal from the order granting appellant a new appeal; appeal number 121 is Sullivan's direct appeal; appeal number 122 is Sullivan's appeal from the PCHA court's denial of

[ 472 Pa. Page 141]

    relief on other grounds. We will consider first the Commonwealth's appeal.

I.

The Commonwealth argues that the PCHA court erred in granting Sullivan a new appeal because (1) the court was without authority to do so, and (2) the record fails to support the court's conclusion that Sullivan did not receive effective assistance of appellate counsel.

Initially, the Commonwealth argues that under the PCHA, "a trial-level court" cannot find that a petitioner's appellate counsel was ineffective and grant him leave to file a new appeal. Although the Commonwealth concedes that a claim of ineffective assistance of appellate counsel is cognizable under the PCHA, it maintains that "a rational system of judicial decision making demand[s] that [the court in which the direct appeal was initially filed] determine the effectiveness of representation by appellate counsel." Apparently, the Commonwealth would have a PCHA petitioner file his petition directly with the appellate court.

We cannot agree that such a procedure is desirable. Certainly the PCHA and our rules governing post-conviction proceedings, Pa.R.Crim.P. 1501-06, mandate that the hearing court initially decide a petitioner's claim.

Section 5 of the PCHA grants jurisdiction initially to the court that imposed the judgment of sentence:

"(a) Any person who desires to obtain relief under this act may initiate a post conviction proceeding by filing a petition . . . with the clerk of the court in which he was convicted and sentenced which said court is hereby granted jurisdiction to hear and determine same."

Post Conviction Hearing Act § 5(a), 19 P.S. § 1180-5(a) (Supp.1975). See Pa.R.Crim.P. 1502.

[ 472 Pa. Page 142]

Section 10 of the PCHA grants to the hearing court the power to initially fashion the appropriate relief. Post Conviction Hearing Act, § 10, 19 P.S. § 1180-10 (Supp.1975). Only when one of the parties is aggrieved by the order of the hearing court may the case be taken to an appellate court and then only by the traditional avenues of appeal. Post Conviction Hearing Act, § 11, 19 P.S. § 1180-11 (Supp.1975).

The Act thus makes no provision for the hearing of claims for PCHA relief in any court other than the court in which the judgment was originally entered. We decline the Commonwealth's invitation to ignore the statute and existing practice and adopt a drastically new procedure.

We believe that the statutory allocation of judicial responsibility in the determination of claims raised under the PCHA necessarily reflects the institutional capabilities of trial and appellate courts. When deciding a claim of ineffective appellate counsel, the hearing court must determine if the course chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Frazier, 455 Pa. 162, 314 A.2d 16 (1974); Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973); Cf. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Because this decision requires an examination of counsel's stewardship of the appeal in light of the available alternatives, it often will be necessary to call counsel whose assistance is challenged as ineffective so he may explain the decisions he made in the course of the appeal. Furthermore, both the petitioner and the Commonwealth may wish to call additional witnesses and present other evidence relevant to the petitioner's claim. Cf. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1974);*fn6

[ 472 Pa. Page 143]

    court does on a new record established in an evidentiary hearing -- a record not before the appellate court on direct appeal.

Moreover, the appellate court is not bound by the decision of the PCHA court. If the Commonwealth believes that the evidence is insufficient to support the court's findings of fact or its legal conclusion that counsel was ineffective, the Commonwealth may appeal to the appropriate appellate court as was done in the present case. Post Conviction Hearing Act, § 11, 19 P.S. § 1180-11 (Supp.1975).

In the instant case, Sullivan bases his claim of ineffective assistance of appellate counsel on two grounds: (1) the failure of counsel to file a brief in this Court and, (2) counsel's decision not to argue the case orally. The Commonwealth asserts that a brief, in fact, had been filed and that the decision to submit the case on briefs was reasonably made in Sullivan's best interests.

On the basis of the testimony adduced at the Post Conviction Hearing, the PCHA court reached the following conclusion:

"A careful consideration of all the testimony concerning defendant's appellate rights clearly indicates that oral argument was not waived by defendant and that there was considerable confusion between counsel concerning the appeal due to Judge DiBona's appointment to the bench and Mr. Peruto's heavy trial schedule.*fn9 In a matter involving a conviction for first degree murder, it is our opinion that defendant's right should have been fully protected and every possible argument

[ 472 Pa. Page 145]

    fully explored. We cannot say that this was done in this case.

"We are mindful of the fact that the Supreme Court divided evenly in its decision in this case. Oral argument might have persuaded a different decision. Furthermore, defendant was entitled to a carefully prepared brief by his counsel so that his argument could be fully presented and it does not appear that was done in this case. To this extent we find as a fact that there was ineffective assistance of counsel and that this requires granting defendant relief."

The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. See Commonwealth v. Smith, 454 Pa. 256, 312 A.2d 396 (1973); Commonwealth v. Minnick, 432 Pa. 462, 247 A.2d 569 (1968). Consequently, this Court will not disturb its findings if they are supported in the PCHA record. See Commonwealth v. Hauser, 450 Pa. 388, 299 A.2d 218 (1973); Commonwealth v. Tabb, 433 Pa. 204, 249 A.2d 546 (1968); Commonwealth v. Minnick, supra. This is true even when the record could support a contrary holding. See Commonwealth v. Hauser, supra.

On this appeal, we find there is sufficient evidence in the record to support the factual findings of the PCHA court. Furthermore, counsel's filing of a highly unorthodox "brief" which failed to comply with our rules and which appears to be only a preliminary draft and his failure to argue the appeal orally support the PCHA court's legal conclusion that Sullivan was deprived of effective assistance of appellate counsel in his initial appeal.

Although the decision to proceed on appeal without oral argument may be a tactical one that counsel is entitled to make, see Supreme Court Rule 32, like every

[ 472 Pa. Page 146]

    tactical decision, that option must be selected on some reasonable basis designed to effectuate the client's interests. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). According to the findings of the PCHA court, the appeal was submitted on the "brief" not because counsel believed this would enhance the chances of success on appeal, but because of "considerable confusion." We are thus persuaded that, on this record, the fact that this case was submitted without oral argument for reasons unrelated to the interest of counsel's client fully supports the hearing court's finding of ineffective assistance of appellate counsel.*fn10

This Court has previously held that a decision of a court in a case where appellant was without the effective assistance of counsel is not binding upon appellant. See Commonwealth v. Cheeks, 429 Pa. 89, 96-97, 239 A.2d 793, 797 (1968). Therefore, where an appellant is denied the effective assistance of counsel on appeal, the proper remedy is to afford appellant a new appeal in which he may reassert the issues adversely affected by his initial counsel's ineffective stewardship of his appeal.

[ 472 Pa. Page 147]

McGrath ignored the suggestion and continued collecting the trash from the offices. The witness then took the refuse outside the building. When he returned, appellant was still seated at the window.

At this time, both Sullivan and McGrath observed John Gorey and Rita Janda arrive at the union hall in Gorey's car and enter the building. McGrath then began cleaning the conference room, located approximately 75 feet from Gorey's office. Shortly thereafter, Gorey appeared and had a brief conversation with McGrath. Immediately after Gorey left the conference room, appellant appeared in the doorway, through which Gorey had just passed, and again questioned McGrath about the cleaning and suggested he defer his activities until Sunday afternoon. During this brief conversation, Gregory Carchidi, another janitor, entered the conference room. No conversation ensued between Carchidi and Sullivan but Carchidi repeated appellant's urgings to leave the work until Sunday. Sullivan then left the room through the same door which Gorey had exited but Carchidi remained and seated himself behind the desk.

Within several minutes, the witness testified he heard sounds like firecrackers going off in rapid succession. McGrath started to question Carchidi about the disturbance but was abruptly instructed to "Get out of the building and don't say nothing" (sic). McGrath left the union hall and noticed four cars other than his own parked in the lot. These were recognized as belonging to DiPasquale, Gorey, Carchidi and appellant. McGrath drove off but returned to the premises within 15 minutes. Only Gorey's car remained in the lot. Upon re-entering the building, he found the offices closed, the conference room locked and the lights out.

The victims' bodies were discovered the following morning. Gorey had been shot four times and Janda six times, the shots being fired from close range. The ballistics studies established two separate guns were employed

[ 472 Pa. Page 149]

    in the homicides but the weapons were never recovered.

Additional testimony disclosed that the telephone lines had been arranged so that regular incoming calls would ring in the room in which appellant was seated. A second line with a different call number had been prearranged by Gorey to ring in his office so that he could receive an anticipated call from Joseph Vernick at 7:00 P.M. One Irene Glenn testified for the Commonwealth that she dialed the regular union phone number about 6:15 P.M. that evening and a man answered identifying himself as Gorey. A scrap paper found in the wastebasket alongside the desk where appellant had been seated prior to the victim's arrival contained Ms. Glenn's name and telephone number. It was uncontested that the handwriting was that of appellant. Moreover, one Joseph Vernick testified that he called Gorey's office at a specially arranged time but received no answer despite his repeated attempts between 7:15 and 8:15 P.M. This evidence, coupled with the medical examiner's testimony, indicated that the time of death could have been approximately 7:15 P.M. At the close of the case-in-chief, no evidence was presented by the defense.

In determining the sufficiency of the evidence the test is whether, accepting as true all of the evidence of the Commonwealth and all reasonable inferences arising therefrom, upon which, if believed, a finder of fact could properly have based its verdict, such evidence was sufficient in law to prove the elements of the crime in question beyond a reasonable doubt. Commonwealth v. Segers, 460 Pa. 149, 157, 331 A.2d 462, 466 (1975); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Williams, 450 Pa. 327, 301 A.2d 867 (1973).

[ 472 Pa. Page 150]

This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976). Moreover, it is not necessary that each piece of evidence be linked to the defendant beyond a reasonable doubt. It is only necessary that each piece of evidence include the defendant in the group who could be linked while excluding others, and that the combination of evidence link the defendant to the crime beyond a reasonable doubt (emphasis supplied). Commonwealth v. Petrisko, 442 Pa. 575, 580, 275 A.2d 46, 49 (1971). See also, Commonwealth v. Tinsley, 465 Pa. 329, 350 A.2d 791 (1976); Commonwealth v. McIntyre, 451 Pa. 42, 47, 301 A.2d 832, 834 (1973). Restated, the facts and circumstances need not be absolutely incompatible with defendant's innocence, but the question of any doubt is for the jury unless the evidence "be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances". Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). See also, Commonwealth v. Rogozinski, 387 Pa. 399, 402, 128 A.2d 28, 30 (1956).

An analysis of the facts supports the jury's findings. Sullivan had remained at the window looking out onto the parking lot for more than 20 minutes after McGrath's arrival, indicating that he was awaiting the arrival of a particular individual. Sullivan did not leave that observation point until he had seen the victims arrive, strongly suggesting that it was in fact Gorey and Janda whose arrival he was awaiting. The evidence further justifies an inference that Sullivan attempted to conceal his identity and presence by answering the telephone as "Gorey." Moreover, he attempted to persuade McGrath to leave the premises by repeatedly suggesting

[ 472 Pa. Page 151]

    that the cleaning be left until Sunday. Such conduct is highly consistent with an attempt to avoid the possibility of any witnesses to the anticipated event.

This conclusion is buttressed by the actions of Carchidi, a co-defendant, who entered the conference room and without engaging in discussion with appellant, also instructed McGrath to defer his duties until Sunday. Almost immediately thereafter, appellant exited the conference room through the same doorway which Gorey had previously departed, and which led towards Gorey's office, the scene of the murders. Momentarily, the shots were heard and Carchidi told McGrath to ". . . get out of the building and don't say nothing" (sic). A reasonable inference can be drawn that the repetition and similarity of these statements to McGrath by appellant and Carchidi just prior to the shootings was indicative of their knowledge of the impending incident and further evidenced their attempts to remove any potential witnesses to the crime.

Additional evidence of guilt may also be inferred from appellant's statements to police. During questioning several days after the murders, Sullivan denied being present at the building during the time of the shootings. This contradicted McGrath's statement which placed Sullivan in direct proximity to the crime only moments before its occurrence. Moreover, McGrath stated that when he left the building Sullivan's car was still parked in the lot.

As stated by our Court in Commonwealth v. Sauders, 390 Pa. 379, 388-89, 134 A.2d 890, 895 (1957):

In Commonwealth v. Bolish, 381 Pa. [500] at page 524, 113 A.2d [464] at page 476, supra, the Court said: ". . . false or contradictory statements by the accused are admissible since the jury may infer therefrom that they were made with an intent to divert suspicion or to mislead the police or other authorities, or to establish an alibi or innocence, and hence are indicatory

[ 472 Pa. Page 152]

    of guilt: Commonwealth v. Lowry, 374 Pa. 594, 601, 98 A.2d 733 . . ." See to the same effect: Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743, supra; Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161; Commonwealth v. Danarowicz, 294 Pa. 190, 144 A. 127; Commonwealth v. Hadok, 313 Pa. 110, 169 A. 111; Commonwealth v. Karmendi, 328 Pa. 321, 328, 195 A. 62; Commonwealth v. Jones, 341 Pa. 541, 19 A.2d 389; Commonwealth v. Lettrich, 346 Pa. 497, 31 A.2d 155; Cathcart v. Commonwealth, 37 Pa. 108, 113; McMeen v. Commonwealth, 114 Pa. 300, 306, 9 A. 878; Commonwealth v. Johnson, 162 Pa. 63, 29 A. 280; Commonwealth v. Jones, 297 Pa. 326, 146 A. 905.

Appellant claims that this evidence fails to preclude the possibility that a third party committed the crime since the building was unlocked and several other individuals were known to be about. The Commonwealth concedes that the evidence does not exclude participation by anyone else. In fact, the testimony showed that two guns were used in the murders. However, appellant was the only known person on the second floor whose whereabouts were unaccounted for during the shootings. Moreover, it is not required that the prosecution exclude all possibility of a third party committing the act.

"If eyewitness testimony of the commission of a murder were necessary, or if the Commonwealth had to exclude the possibility of a third person committing the crime -- which would, in reality, require an eyewitness or the capture of defendant "red-handed" -- few murderers would ever be convicted, and society could not possibly be adequately protected. Moreover, even if a defendant was caught running away from the murder scene right after the murder, he would have to be acquitted under the "exclusion" theory because he could contend that he was running away in order to avoid suspicion or to escape from the unknown criminal's attempt

[ 472 Pa. Page 153]

    to murder him. In the Sauders case, in the Bolish case, in the Homeyer case, in the Wentzel case, [ Com. v. Wentzel, 360 Pa. 137, 61 A.2d 309], in the Danz case, [ Com. v. Danz, 211 Pa. 507, 60 A. 1070], in the Boden case, [ Com. v. Boden, 399 Pa. 298, 159 A.2d 894], in the Carey case, [ Com. v. Carey, 368 Pa. 157, 82 A.2d 240], and in Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362, infra (to mention just a few) there were no eyewitnesses to the murder; the exact time of death was unknown; and any third party or unknown person could have committed the murder. Any refinements or distortion of the law such as defendant urges would not only require us to overrule a myriad decisions of this Court, but would make the protection of society in most cases realistically impossible."

Commonwealth v. Kravitz, 400 Pa. 198, 212-13, 161 A.2d 861, 868 (1960).

In Kravitz, supra, we concluded by determining that it is unnecessary for the Commonwealth to dispel all possibility of doubt provided the evidence, if believed, warrants a finding of guilt beyond a reasonable doubt. Here the Commonwealth concedes that the evidence did not foreclose the possibility of the participation of a third person to the shooting. In fact it was their theory that at least two persons had actually shot the victims. Nevertheless we are satisfied that the testimony offered to show that Sullivan was one of the participants was sufficient to sustain the verdict.

Finally, McGrath testified that he returned to the union hall some 15 minutes later and found only Gorey's car parked in the lot. Upon reentering the hall he discovered that all the offices which had previously been opened were closed, the door to the conference room locked and all lights put out. These circumstances are consistent with the inference that Sullivan and Carchidi had left shortly after McGrath's original departure. They obviously attempted to give the impression that the

[ 472 Pa. Page 154]

    crime was committed after the premises had been secured for the night and they had departed from the building.

While it is not contended by the Commonwealth that any of these facts standing alone would support a conviction, taken in concert with all reasonable inferences, they clearly justify the conclusion that appellant was linked to the crime beyond a reasonable doubt. See Commonwealth v. Petrisko, supra; Commonwealth v. Tinsley, supra ; and Commonwealth v. McIntyre, supra.

Appellant next argues that he was denied an opportunity to challenge the array of the grand jury because 1) he was without the assistance of counsel at the time the indictments were presented; 2) he did not receive notice that the cause was to be presented to the October grand jury; and 3) he could not challenge the jury already impanelled. Our review of the record convinces us that these arguments are without merit.

On November 3, 1966, an inquest was held by the Medical Examiner of the City of Philadelphia. At this time appellant was represented by the late John Patrick Walsh, Esquire. However, following this hearing appellant alleges that he no longer retained the services of Mr. Walsh and was without counsel thereafter until late December, 1966. In support of this position appellant has offered an affidavit supplied by Mr. Walsh prior to his death. Our reading of this affidavit indicates that Mr. Walsh continued his representation of appellant until new counsel was appointed or retained. Having determined appellant had representation during this period we now consider whether said counsel had adequate notice of the presentments and an opportunity to challenge the array of the jury.

At the close of the proceedings before the Examiner the following findings were stated:

"In reviewing the records of the Office of the Medical Examiner and the testimony, I find that Rita Janda

[ 472 Pa. Page 155]

    and John Gorey died as a result of gunshot wounds of the head, and that the manner of death is homicide, at this stage of the Inquest.

"I find at this stage that there is sufficient evidence to hold John J. Sullivan, Gregory Carchidi, and Anthony DiPasquale for action of Court, and I will continue this hearing until further notice, such time as additional evidence comes before me."

Appellant argues that this language was unclear and hence insufficient to notify him that the case would be presented to the grand jury. We believe that a proper interpretation of this language taken in context indicates that further hearings were for the investigation of the possible complicity of others but that a determination had been made to hold John Sullivan for action of court. Moreover, we note the affidavit of Mr. Walsh which stated that he understood that Sullivan was being held for action by the grand jury.

Appellant next suggests that the defense was denied notice as to which grand jury the cause would be presented thereby violating the rule enunciated by our Court in Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968). In Collemacine, supra, we held that "Failure to notify the accused or his counsel that his case will be presented to a grand jury other than that to which he was handed over violates fundamental notions of Due Process" (emphasis added). The basis of the Collemacine doctrine was to prevent the presentments from being made to a panel at an indefinite time in the future, without knowledge to the accused, thereby precluding the opportunity for the defense to challenge the array of the jury. In the instant matter, the presentments were made to the jury already impanelled and therefore did not offend the principle announced in Collemacine, supra. See also, Commonwealth v. Jones, 456 Pa. 270, 318 A.2d 711 (1974). Moreover, there is no indication that an experienced counsel of the calibre of Mr.

[ 472 Pa. Page 156]

Walsh was not aware that the matter had been handed over to jury ...


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