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Commonwealth v. Chimenti

Superior Court of Pennsylvania

September 4, 2019


          Appeal from the PCRA Order Entered July 20, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0633651-1982

          BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS [*] , P.J.E.


          STEVENS, P.J.E.

         Appellant, Salvatore F Chimenti, appeals from the July 20, 2018, order entered in the Court of Common Pleas of Philadelphia County dismissing Appellant's third petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After a careful review, we affirm.

         This Court has previously set forth the relevant facts and procedural history, in part, as follows:

At approximately 11:30 p.m. on May 10, 1982, [Appellant] shot Andrew Tucker seven times causing his death.
Several days prior to the shooting, [Appellant] and Tucker had engaged in a verbal altercation, which [Appellant] concluded made him "look bad" in the neighborhood. [Appellant] instructed Bobby Harris to bring the victim to [Appellant's] home. [O]n May 10, Harris saw the victim in a tavern and offered to drive him to see [Appellant]. When the two men confronted each other again, another angry verbal exchange ensued in front of several witnesses, including Harris, [Appellant's] brother Mario, and Mike Cavanaugh. Tucker was unarmed. [Appellant] and Mario both carried guns. Mario and Cavanaugh were standing on the porch of [Appellant's] house. [Appellant] was on the third step leading up to the porch. As the argument became more heated, [Appellant] drew a .38 caliber weapon and fired seven shots at Tucker, striking him three times in the chest, in the groin, through his back and into his heart, the back of his knee[, ] and the back of his armpit. Mario also opened fire with a .25 caliber weapon, which likely caused a wound to Tucker's face. Harris was standing next to Tucker on the pavement when he was shot. When the police arrived, they found a fully loaded .38 caliber gun lying next to Tucker's left leg. Tucker was right-handed.
No witnesses came forward for several weeks. During that period, [Appellant] repeatedly left messages for Bobby Harris's family, threatening to harm them if Harris implicated [Appellant]. Harris responded by seeking legal counsel, and [he] gave a full statement to the police.
[Appellant] testified in his own behalf. He stated that Harris and Tucker were members of an organized crime family, which had a "contract" on his life because he had not repaid a loan. He claimed that on the night of the shooting he retrieved a gun for self-defense, and shot Tucker as he was screaming out of control and displaying a gun wrapped around a jacket. Additional evidence was presented that Harris was on the porch and tried to shoot [Appellant], but Mario deflected the gun away. One of the several defense eye-witnesses to support the above scenario was Gregory Spain.
In rebuttal, the Commonwealth produced a witness who testified that Spain had told her that he [would testify] as a surprise witness at trial, even though he had not witnessed the incident.

Commonwealth v. Chimenti, No. 2599 PHL 1995, at *1-2 (Pa.Super. filed 7/3/97) (unpublished memorandum) (citation to PCRA court opinion omitted). At the conclusion of trial, the jury convicted Appellant of first-degree murder and possession of an instrument of crime, and Appellant's trial counsel, Joel Moldovsky, Esquire, filed post-verdict motions. Thereafter, Appellant retained new counsel, A. Charles Peruto, Jr., Esquire, who filed supplemental post-verdict motions. On January 26, 1984, the trial court denied Appellant's post-verdict motions; however, four days later, Appellant filed additional supplemental post-verdict motions, and he retained new counsel, Michael M. Mustokoff, Esquire, who contacted the Philadelphia District Attorney's Office with information concerning trial counsel's alleged subornation of perjury, particularly as to Gregory Spain.

[Thereafter, the] Commonwealth and [Appellant] struck a deal providing that if [Appellant] cooperated in the Commonwealth's investigation of trial counsel [and did not file post-sentence motions raising claims of ineffectiveness with regard to the subornation of perjury so that trial counsel would not be "tipped off, "] the parties would enter into a plea agreement whereby [Appellant's] conviction would be vacated and he would plead guilty to murder generally, with a certification that the degree of guilt would rise no higher than third degree.
On July 9, 1984, the trial court denied [the] supplemental post-verdict motions and sentenced [Appellant] to life imprisonment for first-degree murder and to a concurrent two and one-half years' imprisonment for [possession of an instrument of crime]. [Appellant did not file post-sentence motions.] Appellant filed a [protective] direct appeal to this [C]ourt and cooperated in the Commonwealth's investigation of trial counsel.
On March 15, 1985, the parties jointly petitioned then-President Judge Edmund B. Spaeth, Jr., of [this Court] to effectuate the agreement between [Appellant] and the Commonwealth by remanding the case to the Common Pleas Court for "special assignment to a judge who, after sentence has been vacated, will accept [Appellant's] negotiated guilty plea." In an order dated April 18, 1985, Judge Spaeth granted the petition.
On June 20, 1985, upon application of the trial judge, the Honorable Lisa Richette, our Supreme Court assumed plenary jurisdiction of the case to determine "whether the Superior Court has the power to entertain a plea bargain after the entry of a judgment of sentence." In the Matter of Commonwealth v. Chimenti, 510 Pa. 149, 151, 507 A.2d 79, 80 (1986). On March 27, 1986, the [Supreme] Court vacated Judge Spaeth's order and remanded the case to [this Court] for proceedings on [Appellant's] direct appeal. [Specifically, our Supreme Court rejected enforcement of the agreement entered into by the District Attorney's Office and Appellant.] The [Supreme] Court [held] that
the order of Judge Spaeth directed the yet unnamed hearing judge to vacate the prior judgment of sentence and to accept the guilty plea of [Appellant] to murder generally (not to rise higher than third degree). This order reduced the prospective hearing judge to a "rubber stamp," empowered only to perform a ministerial function. Neither Judge Spaeth, nor the Superior Court at large, possessed such power. The order in question was also problematic on another score in that Judge Spaeth effectively abrogated a jury verdict without any semblance of a record. We can in no way condone such an action….
Id. at 155-56, 507 A.2d at 83.
On May 6, 1986, through new counsel, Paul Schechtman, Esquire, [Appellant] petitioned this [C]ourt for a remand to the trial court for an evidentiary hearing on whether trial counsel suborned perjury at trial. In an order dated May 20, 1986, this [C]ourt denied the request "without prejudice to renew the request and argue the issue of ineffectiveness of trial counsel in briefs and before the panel."

Chimenti, No. 2599 PHL 1995, at *3-4.

         On direct appeal, Appellant relevantly argued Attorney Moldovsky was ineffective for suborning perjury[1] and failing to call two witnesses who would have truthfully testified to seeing the gun lying next to the decedent's body immediately after the shooting. In finding Appellant was not entitled to relief on his ineffectiveness claims, [2] we held the two potential witnesses would not have assisted Appellant's defense and, in fact, would have impeached aspects of Appellant's self-defense theory. Also, we held there was no evidence in the certified record indicating that trial counsel suborned perjured testimony.[3]Consequently, we affirmed the judgment of sentence on April 20, 1987.[4] Commonwealth v. Chimenti, 524 A.2d 913 (Pa.Super. 1987). Appellant's petition for allowance of appeal was denied by our Supreme Court on September 29, 1987.

         On September 18, 1990, Appellant filed a counseled petition under the PCRA, which the lower court denied, and Appellant filed a counseled appeal to this Court. On appeal, Appellant averred, inter alia, that he was entitled to specific performance of the agreement he made with the Commonwealth relating to trial counsel's alleged subornation of perjury, and all prior counsel were ineffective in failing to raise either trial counsel's ineffectiveness in allegedly suborning perjury or post-verdict counsel's ineffectiveness in attempting to enter into an agreement with the Commonwealth that was void ad initio.

         In finding Appellant was not entitled to relief on his claims, we relevantly held the following:

Appellant first claims he is entitled to specific performance of a written agreement to vacate his statutorily-mandated judgment of sentence and enter a guilty plea to, at most, third-degree murder. However, our Supreme Court invalidated that agreement, despite the Commonwealth's advocacy of it, because it "effectively abrogated a jury verdict without any semblance of a record." Chimenti, 510 Pa. at 155, 507 A.2d at 83. Indeed, what the agreement clearly contemplated, though not specifically spelling it out, was vacating a jury verdict, not on the basis of a hearing or a record but simply on the basis of allegations in [A]ppellant's uncontested PCRA petition. A defendant's conviction and mandatory sentence may not be set aside merely by agreement of the parties. This claim does not entitle [A]ppellant to PCRA relief.
Appellant's final two claims are related. He argues he is entitled to a new trial or the opportunity to file post-trial motions nunc pro tunc because all prior counsel were ineffective for failing to raise trial counsel's ineffectiveness in allegedly suborning perjury and post-verdict counsel's ineffectiveness in entering into an agreement that was void ad initio.
The record shows it was [A]ppellant himself who gave perjured testimony at trial and willingly participated in presenting a perjured defense. N.T. PCRA, 11/17/92, at 39. Appellant testified he personally asked Gregory Spain to contact trial counsel so that both he and Spain could testify Spain drove [A]ppellant to the crime scene (when in fact Spain had not). Thus, the record shows [A]ppellant's own testimony at trial was in furtherance of a deliberate trial strategy chosen by himself and counsel. Our Supreme Court has responded to a similar claim defense counsel compelled his client to offer false testimony:
Having freely and deliberately chosen to offer testimony which he now asserts was false, [the] appellee stands before this Court and attempts to reap a windfall new trial on account of his own perjury. The criminal justice system cannot and will not tolerate such an obvious and flagrant affront to the integrity of the truth determining process thinly disguised under the rubric of "ineffective assistance."….
Commonwealth v. McNeil, 506 Pa. 607, 618-19, 487 A.2d 802, 807-08 (1985)[.]
We note [A]ppellant apparently never attempted to substantiate the allegation that counsel suborned perjury by calling trial counsel to testify. This claim remains further unsubstantiated by any record evidence. The PCRA court appointed counsel for witnesses who testified at trial and who [A]ppellant claimed would support this allegation. None, however, did so.
Appellant's claims regarding all prior counsels' ineffectiveness are similarly unsupported. Appellant raised no clear claim of ineffectiveness against [Attorney] Peruto in his counseled PCRA petition. Even assuming this claim is properly before us, nothing in the record-including five hearings over seven months-suggests [Attorney] Peruto refused to pursue the claim that trial counsel suborned perjury.
Regarding [Attorney] Mustokoff's ineffectiveness in advising [A]ppellant to enter into an agreement which later was effectively rendered null and void by our Supreme Court, the law is clear that counsel is not ineffective in failing to predict future decisions….Since [A]ppellant has no witness willing to substantiate his claim that trial counsel suborned perjury, no counsel can be deemed ineffective for failing to pursue, much less prevail on it.

Chimenti, No. 2599 PHL 1995, at *6-13 (some citations omitted).

         Consequently, this Court affirmed the PCRA court's denial of ...

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