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[U] Commonwealth v. Carpenter

Superior Court of Pennsylvania

March 11, 2014



Appeal from the Judgment of Sentence, May 15, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0010394-2011




Russell B. Carpenter appeals from the judgment of sentence of May 15, 2012, following his conviction of several violations of the Uniform Firearms Act ("VUFA"). We affirm.

Following a waiver trial before the Honorable Angelo J. Foglietta, appellant was found guilty of unlawful possession of firearms, firearms not to be carried without a license, and carrying firearms on the public streets in Philadelphia.[1] Jeffrey Azzarano, Esq., represented appellant at trial. Subsequently, appellant obtained new counsel who made an oral motion for extraordinary relief on his behalf, alleging ineffectiveness of trial counsel. On May 15, 2012, appellant's oral motion for extraordinary relief was denied, and the trial court proceeded to sentencing. Appellant received an aggregate sentence of three to six years' imprisonment, followed by three years of probation. Post-sentence motions were denied, and this timely appeal followed. Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

Appellant has raised the following issue for this court's review:
Did the Court of Common Pleas err in ruling that [appellant]'s trial counsel's failure to call eyewitnesses, experts, or confront the Commonwealth's lone witness with his preliminary hearing testimony did not constitute ineffective assistance of counsel?

Appellant's brief at 2.

All of appellant's claims on appeal relate to trial counsel ineffectiveness. Appellant did raise a sufficiency claim in his Rule 1925(b) statement, which has been abandoned on appeal. Appellant argues that trial counsel was ineffective for failing to call any witnesses where trial counsel was under the misimpression that operability of the firearm was an element of the offenses. Appellant also argues that trial counsel was ineffective for failing to cross-examine the arresting officer about his preliminary hearing testimony, in which he testified that he could not be certain the item he saw appellant discard was really a gun (the gun was never recovered). Appellant also claims that trial counsel should have called an expert witness to testify that police officers routinely mistake toy guns or replicas for real firearms.

As stated above, these claims were raised in post-trial and post-sentence motions, and evidentiary hearings were held, at which trial counsel testified. The trial court disposed of these claims on the merits, and addressed them in its Rule 1925(a) opinion. The trial court acknowledges the general rule in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), that defendants should wait until the collateral review phase to raise claims of ineffective assistance of counsel. (Trial court opinion, 6/7/13 at 4.) Nonetheless, the trial court urges us to review appellant's claims now, on direct appeal, pursuant to the so-called "Bomar exception" to the Grant rule. Id.; see Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), cert. denied, 540 U.S. 1115 (2004) (recognizing a limited exception to the Grant deferral rule where there was an extensive record regarding the ineffectiveness claims, including a full hearing where counsel testified, and the trial court ruled upon all claims).

Recently, in Commonwealth v. Holmes, Pa., 79 A.3d 562 (2013), decided October 30, 2013, our supreme court revisited Bomar. In a majority opinion by Chief Justice Castille, the court reaffirmed Grant and held that, absent specific circumstances not applicable here, "claims of ineffective assistance of counsel are to be deferred to PCRA[2] review; trial courts should not entertain claims of ineffectiveness upon post-verdict motions; and such claims should not be reviewed upon direct appeal." Id. at 576 (footnote omitted). The Holmes court limited Bomar to its pre-Grant, unitary review facts, and made clear that there is no "Bomar exception" to Grant. Id. at 575-576.[3] In doing so, the court expressed concern that, "In practice, the Bomar exception has operated as an extra round of collateral attack for certain defendants, unauthorized by the General Assembly, and subject to no review rationale beyond the discretion of the trial court." Id. at 576.

The court in Holmes recognized just two specific circumstances where post-verdict review encompassing ineffectiveness claims should be permitted. The first involves a claim of ineffective assistance of trial counsel which is apparent from the record and meritorious to the extent that immediate consideration of the claim best serves the interest of justice, the "extraordinary circumstances" exception:

In short, there may be an extraordinary case where the trial court, in the exercise of its discretion, determines that a claim (or claims) of ineffectiveness is both meritorious and apparent from the record so that immediate consideration and relief is warranted. The administration of criminal justice is better served by allowing trial judges to retain the discretion to consider and vindicate such distinct claims of ineffectiveness, and we hereby approve such a limited exception to Grant.

Id. at 577 (footnote omitted).

In the case sub judice, the trial court denied appellant's claims and authored a 76-page opinion explaining why each is meritless and does not warrant a new trial. Furthermore, as the trial court notes, the issues "were fully tried over numerous post-sentence hearings" and "extensively briefed and vigorously and zealously argued." (Trial court opinon, 6/7/13 at 4.) Therefore, the claims were neither meritorious, nor readily apparent from the record. The first exception to Grant outlined in Holmes does not apply here.

The second exception is the "good cause/PCRA waiver" exception, which applies where the defendant demonstrates good cause for unitary review of multiple or prolix ineffectiveness claims on direct appeal, including non-record based claims, and expressly and knowingly waives his right to seek subsequent PCRA review:

[T]here are salutary reasons why there should not be an absolute impediment to the trial court, in its discretion, and for good cause shown, permitting post-verdict review of multiple, and indeed comprehensive, ineffectiveness claims if such review is accompanied by a waiver of PCRA rights appropriately tailored . . . .

Id. at 578. An example of "good cause" would be where the defendant is serving a sentence so short as to be unlikely to have the opportunity to seek collateral review of his conviction. Id.; see 42 Pa.C.S.A. § 9543(a)(1)(i) (to be eligible for relief, PCRA petitioner must be "currently serving a sentence of imprisonment, probation or parole."). However, for this sort of unitary review to be permitted, the accompanying PCRA waiver must make clear that any further collateral attack is subject to the time-bar restrictions of Section 9545(b). Holmes, supra at 579. The Holmes court observed that, "As a practical matter, few if any initial PCRA petitions proceed to final judgment (including appeal) within a year of the sentence, and thus all serial petitions will likely encounter the Section 9545(b) restrictions." Id. In addition, the court made clear that the time spent litigating collateral issues on unitary review counts toward the one-year PCRA time limit. Id.

Instantly, appellant has not demonstrated "good cause" for unitary review of his ineffectiveness claims, other than his own assertion that they are meritorious and warrant relief, an assertion with which the trial court disagrees. Also, there is no indication that appellant has executed a knowing and express waiver of his entitlement to seek subsequent PCRA review from his conviction and sentence. Therefore, the second exception to the Grant rule does not apply. As such, we are constrained to affirm the judgment of sentence, without prejudice to appellant's right to re-raise his ineffectiveness claims in a timely PCRA petition.[4]

Judgment of sentence affirmed.

Judgment Entered.

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