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COMMONWEALTH PENNSYLVANIA v. SALVATORE CHIMENTI (04/20/87)

filed: April 20, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
SALVATORE CHIMENTI, APPELLANT



Appeal from the Judgment of Sentence July 9, 1984 in the Court of Common Pleas of Philadelphia County, Criminal No. 3365, 3367 June 1982.

COUNSEL

Paul L. Shechtman, Philadelphia, for appellant.

Marianne E. Cox, Deputy District Attorney, Philadelphia, for Com., appellee.

Olszewski, Tamilia and Kelly, JJ.

Author: Olszewski

[ 362 Pa. Super. Page 355]

Appellant appeals from the judgment of sentence imposed after a jury found him guilty of first-degree murder and possession of an instrument of crime. The trial judge sentenced appellant to the mandatory term of life imprisonment on the first-degree murder charge and to a concurrent term of 2 1/2 to 5 years' imprisonment on the possession of an instrument of crime charge. In this appeal, appellant argues that: (1) he was denied effective assistance of counsel because his trial counsel failed to call two witnesses and chose to present testimony that counsel knew was perjurious; (2) he was denied a fair trial because of the prosecutor's misconduct; and (3) the evidence was not legally sufficient to support a first-degree murder conviction.*fn1 For the reasons stated below, we affirm the judgment of sentence.

[ 362 Pa. Super. Page 356]

It was later adduced that the victim had been right handed. There was a little blood on the frame of the gun. There also was blood in the street and on the car which was parked between the victim's body and the curb.

Testimony at trial established that the shooting stemmed from an on-going dispute between the defendant, Salvatore Chimenti, and the victim, Andrew Tucker. They had had an argument at the defendant's mother's house three or four days before the shooting. Following this, Chimenti, who had been renting a house from Robert Harris, a friend of Tucker's as well, asked Harris to arrange a meeting between them.

On the night of the shooting Harris and Walter Schiffler went to a Phillies game. They left the game early and went to the Brothers 2 Lounge at 15th and Ritner Streets. There they met the victim, Tucker, who had been drinking, and whose behaviour reflected this fact.*fn2 Tucker asked Harris to give him a ride to the defendant's mother's house.

The three men left the Brothers 2 Lounge. They went to the victim's apartment so that Tucker could drop off his baseball equipment and pick up some marijuana. They did not smoke it. Harris entered the apartment with Tucker while Schiffler waited in the car. From there the three men proceeded to 2747 S. Sheridan Street.

Upon their arrival, Harriss recognized the defendant's brother, Mario, and his friend, Mike Cavanaugh, who were walking out of the house. Mario told Harris that the defendant was not home. Tucker got out of the car, and walked off saying that he was going to a friend's house on the street. Harris stayed to talk to Mario and Cavanaugh. Tucker said he would be at the end of the street and that they should come down and honk for him when they had finished their talk.

Tucker went to 2707 S. Sheridan Street, a house occupied by Theresa Ann Marie Bardon. She was in bed watching TV. Steve Cavalieri, Bardon's boyfriend responded to Tucker's knock. Tucker asked to borrow Bardon's van.*fn3 Cavalieri decided to drive Tucker so he

[ 362 Pa. Super. Page 358]

    told Tucker they would meet at the van. Tucker left. Moments later Bardon and Cavalieri heard shots.

According to Harris' trial testimony, while Tucker was at Bardon's, Harris finished his conversation with Mario and Cavanaugh. He was preparing to leave when another car pulled up behind his. The defendant and Linda Romeo emerged. The driver, a man, never got out.

The defendant asked Harris what he was doing there. Harris explained that he had brought Tucker for the meeting the defendant had requested.

The defendant told Harris that he would "blow (Tucker) away," if the victim started any trouble in frot of the defendant's mother's house. Harris had noticed that the defendant had a gun. He also heard the defendant ask his brotther if he had his gun. Tucker did not have a gun.*fn4

While Harris and the defendant were talking, Tucker left Bardon's house. When he saw them Tucker started to walk toward them, yelling. Harris went to Tucker to attempt to calm him down. He thought Tucker was going to fight with the defendant.

After Harris calmed Tucker, they proceeded to 2747 S. Sheridan Street. The defendant was standing on the steps. Mario and Cavanaugh were on the porch. The defendant accused Tucker of doing things he didn't like. The defendant pointed his finger in Tucker's face. Tucker slapped it away. The defendant drew his gun and shot. Harris ran. He jumped in his car, and Schiffler, who had never gotten out, drove off.

When the defendant took the stand he admitted that he had emptied the entire clip of his gun almost instantaneously. Tucker, he said, never fired a shot. The evidence showed that the defendant had continued to fire at Tucker even as he attempted to run. Bullets entered the front, back, and left side of the deceased.

The defendant's gun was never recovered. The defendant stated that as he ran from the scene of the shooting he dropped his Walther PPKS, a semi-automatic .380 caliber gun, in a vacnt lot. He had retrieved this gun

[ 362 Pa. Super. Page 359]

    earlier that evening, from a floor safe in a rental property he owned because he knew the victim was looking for him.

Subsequent police investigationn revealed that there were spent bullet casings on the steps and on the porch of 2747 S. Sheridan Street. The casings found on the porch were .25 caliber. There was one .25 caliber casing on the sidewalk. The ballistics expert testified that these were fired from a semi-automatic pistol which usually ejects shells over the right shoulder of the shooter.

The defendant ran from his mother's house to his Aunt Betty's and Uncle Frank's. He stayed there for a couple of hours trying to calm down. The defendant's uncle suggested that Joel Moldovsky be contacted for legal assistance. The defendant tried to reach Mr. Moldovsky that evening, but did not succeed until the following day. The defendant retained Moldovsky three days later, May 13, 1982.

Mr. Moldovsky called Homicide Headquarters to determine whether the defendant was wanted. He made several calls between May 13th and May 27th or 28th when he learned that a warrant had been issued for the defendant's arrest. The defendant then voluntarily turned himself over to police custody in Mr. Moldovsky's office. From there Chimenti was taken to the Police Administration Building where he was charged with this crime.

(Trial court opinion at 4-9) (footnote omitted).

II. EFFECTIVE ASSISTANCE OF COUNSEL

Appellant's first contention on appeal is that he was enied the effective assistance of counsel. Appellant

[ 362 Pa. Super. Page 360]

    argues that his trial counsel failed to call two potential witnesses and suborned perjured testimony. The standard for analyzing ineffectiveness-of-counsel claims consists of a two-pronged test.. The reviewing court must first determine whether the issue underlying a defendant's ineffectiveness claim is of arguable merit and, if so, the court must then determine whether the course chosen by counsel had some reasonable basis in promoting defendant's interests. See Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1985), allocatur granted, 510 Pa. 244, 507 A.2d 368 (1986). Additionally, our Supreme Court has recently stated that implicit in this two-pronged test is the requirement that the defendant demonstrate that he was prejudiced by his attorney's alleged ineffective assistance. See Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986). For the reasons stated below, we find that the issues underlying appellant's claims of ineffectiveness are meritless.

Specifically, appellant argues that his trial counsel was ineffective because:

He "added" another eyewitness, Gregory Spain, whose race, he believed, would appeal to the jurors. He instructed witnesses to testify that Harris, not Mario Chimenti, was in possession of the .25 caliber gun, so that the attack on appellant would seem even more fearsome. He coached witnesses to testify that Harris was on the porch of the Chimenti house, where the spent .25 caliber cartridges were recovered. And he chose not to call Frank Cioffi and Marie Convery, despite their favorable testimony, because each would have said that Harris was not on the porch at the time of the shooting.

(Brief for appellant at 30). First, in reference to appellant's claim that trial counsel was ineffectivee in failing to call two witnesses, this Court has stated: "the failure to call potential witnesses will not be equated with a conclusion of ineffectiveness absent some positive demonstration that their testimony would have been helpful to the defense." Commonwealth v. Wallace, 347 Pa. Super. 248, 252, 500 A.2d 816, 818 (1985). We find that the testimony of the two

[ 362 Pa. Super. Page 361]

    potential witnesses would not have been helpful to the defense.

During the trial, appellant contended that the shooting was done in self-defense. Appellant testified that he borrowed $30,000 from Robert Harris and that Tucker, a friend of Robert Harris, had confronted appellant twice previous to the shooting, seeking repayment of the loan. Defense witnesses testified that Robert Harris was on the porch of the Chimenti house and that both Tucker and Harris drew guns on appellant. Appellant, they said, shot Tucker before Tucker could shoot appellant. Gregory Spain also testified for the defense and told the jury that he had driven appellant home on the night of the shooting. Spain testified that Tucker had a gun and that he saw Harris run from the porch with what seemed to be a gun in his hand. On appeal, appellant arues that the testimony of two eyewitnesses -- Frank Cioffi and Marie Convery -- would have shown that the gun found at Tucker's side could not have been planted. Appellant argues that the two eyewitnesses were walking down South Sheridan Street when they saw the shooting and that no one approached Tucker's body to plant a gun since they stayed with Tucker until the police arrived on the scene. (See Brief for appellant at 10). Appellant contends that trial counsel did not call them as witnesses because each would have testified that Harris was not on the porch at the time of the shooting.

We find that while the two potential witnesses could have contradicted the Commonwealth's claim that the .38 caliber gun which was found next to Tucker's body was planted, their testimony would have impeached aspects of appellant's self-defense theory. During the trial, defense witnesses had consistently testified that appellant's brother, Mario Chimenti; his friend, Michael Cavanaugh; Robert Harris; and appellant were all on the porch of the Chimenti house at the time of the shooting and that Harris and Tucker each had a gun. By testifying that Harris was not on the porch with a gun at the time of the shooting, the testimony of the two potential witnesses would have created

[ 362 Pa. Super. Page 362]

    confusion in the minds of the jury and may have caused the jury to question the credibility of three of the defense's major witnesses -- appellant, Mario Chimenti, and Michael Cavanaugh -- who were all on the porch of the Chimenti house at the time of the shooting. The course chosen by trial counsel had a reasonable basis in promoting appellant's interests, i.e., trial counsel's decision to present the testimony of those eyewitnesses who were on the porch at the time of the shooting and who testified that Tucker and Harris both had guns, rather than presenting the testimony of Cioffi and Convery who were walking down Sheridan Street some distance from the scene of the shooting. If defense counsel had chosen to present the testimony of the two potential witnesses, the prosecutor could have readily attacked the accuracy of their view of the shooting and the events that subsequently occurred.

Appellant also claims that he was denied the effective assistance of counsel because his trial counsel suborned perjured testimony. Because the burden of proving counsel's ineffectiveness rests on the party alleging it, appellant's burden in this case was to prove that his trial counsel suborned perjured testimony. See Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983) (counsel is presumed to be effective and the burden of proving to the contrary rests on the party alleging counsel's ineffectiveness). We find that appellant has failed to carry this burden.

As proof of this allegation, appellant relies on an investigation by the District Attorney's Office,*fn2a the testimony

[ 362 Pa. Super. Page 363]

    of Elizabeth Harris (Robert Harris' sister), and the addendum attached to his appellate brief which consists of the results of numerous polygraph examinations. The investigative report and the results of the polygraph examinations, however, are not a part of the official record. Our Supreme Court has stated that "'it is a black letter law that an appellate court cannot consider anything which is not a part of the record in the case.'" Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974) (quoting McCaffrey v. Pittsburgh Athletic Ass'n, 448 Pa. 151, 162, 293 A.2d 51, 57 (1972)). We, consequently, cannot go outside the record to consider appellant's evidence. Additionally, Elizabeth Harris, a Commonwealth witness, testified at trial that Gregory Spain, a defense witness, told her that he was going to testify at trial ...


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