Com. v. Lowery

784 A.2d 795

COMMONWEALTH of Pennsylvania, Appellee, v. James Junior LOWERY, Appellant.

Commonwealth of Pennsylvania, Appellee, v. James Junior Lowery, Appellant.

Superior Court of Pennsylvania.

Submitted July 2, 2001.

Filed October 4, 2001.

Jeffrey C. Marshall, York, for appellant.

Lori A. Yost, Assistant District Attorney, York, for Commonwealth, appellee.

Before: LALLY-GREEN, BECK, and TAMILIA, JJ.

LALLY-GREEN, J.

¶ 1 Appellant, James Junior Lowery, appeals from the judgment of sentence entered on August 23, 2000. We affirm.

¶ 2 The trial court presented the factual history of the case as follows:

On July 10 through July 14, 2000, a jury trial was held before this Court. On July 14, 2000, a jury found [Appellant] guilty of Aggravated Assault (Count I) with regard to one of the victims, Craig Henise, ... On August 23, 2000, [Appellant] was sentenced on the Aggravated Assault to fifty-four (54) months to [one hundred eight (108) ] months in a State Correctional Institution. The Court permitted [Appellant] to remain free on present bail if an appeal was filed in this matter.

...

[Appellant's] conviction was the result of an incident that occurred on September 3, 1999, at an apartment building located at 60 Walnut street, York Haven, Newberry Township, York County, Pennsylvania. Newberry Township Police responded to this location for an active fight in progress. Upon arrival, police found the victim, Craig Henise, with a large laceration under his left eye. After dispatching an ambulance, police were informed that the victim and a friend, Tyran Ellis, had a verbal argument with [Appellant]. [Appellant] was the manager of the apartment building where his girlfriend resided. During the course of the argument, [Appellant] stated that he was going to call the police and left the area. [Appellant], who did not contact the police, returned to the area wielding a large wooden staff. [Appellant] then began to repeatedly strike both Craig Henise and Tyran Ellis. One of the blows hit Craig Henise in the left eye. Henise was subsequently transported to York hospital and then transferred to Hershey [M]edical Center for treatment, where doctors observed his eye was nearly cut in two. As a result of the attack, part of the retina was damaged. The doctors subsequently removed Henise's left eye to avoid loss of vision to his right eye.

At trial, the Commonwealth witnesses testified that [Appellant] appeared intoxicated. Evidence and testimony established that [Appellant] was in possession of a long wooden pole that he continuously wielded and on occasion struck Mr. Henise and Mr. Ellis. As [Appellant] swung the stick into people and objects, the pole continuously broke into smaller pieces causing the end of the stick to become sharp with a jagged edge.

Expert testimony from Dr. George Rosen Wasser, opthamologist [sic] and Dr. Charles Latocha, opthamologist [sic], indicated that the injury to the victim's eye could have been caused by the blunt force of a stick similar to the one introduced by the Commonwealth.

The jury returned a verdict of guilty under 18 Pa.C.S.A. § 2701(a)(1) Aggravated assault causing serious bodily injury. [Appellant] was sentenced by this Court to 54 months to 108 months. This sentence reflects an application of the deadly weapons enhancement pursuant to 204 Pa.Code § 303.10.

Trial Court Opinion at 1-4. This is Appellant's direct appeal.¹ ¶ 3 Appellant presents the following issues for our review:

A. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR NOT CHALLENGING THE CONSTITUTIONALITY OF 42 PA.C.S.A. SECTION 9721; 20[4] PA. CODE 303.10 FOR VIOLATION OF THE DUE PROCESS AND JURY TRIAL CLAUSES OF THE CONSTITUTION OF THE UNITED STATES AS APPLIED THROUGH THE FOURTEENTH AMENDMENT. (APPRENDI V. NEW JERSEY, U.S. SUPREME COURT DECIDED JUNE 26, 2000)

B. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST INSTRUCTION AND A VERDICT SLIP REQUIRING THE JURY TO DETERMINE THE APPLICATION OF THE DEADLY WEAPONS ENHANCEMENT BEYOND A REASONABLE DOUBT.

C. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL COURT'S DETERMINATION OF THE APPLICATION OF THE DEADLY WEAPONS ENHANCEMENT.

D. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT EXPERT TESTIMONY REGARDING THE CAUSE OF INJURY TO THE VICTIM'S EYE.

E. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT A MOTION FOR JUDGMENT OF ACQUITTAL BASED UPON THE COMMONWEALTH'S FAILURE TO ESTABLISH THE REQUISITE INTENT/MALICE UNDER 18 PA.C.S.A. SECTION 2702(A)(1). (AGGRAVATED ASSAULT)

F. WHETHER THE TRIAL COURT ERRED IN DECIDING AND APPLYING THE WEAPONS ENHANCEMENT PROVISION OF THE SENTENCING CODE BY A PREPONDERANCE OF THE EVIDENCE, AS OPPOSED TO INSTRUCTING THE JURY TO DETERMINE THE APPLICATION OF THE PROVISION BY THE BEYOND A REASONABLE DOUBT STANDARD.

Appellant's Brief at 5.

¶ 4 Appellant initially raises five claims of trial counsel ineffectiveness. Our standard of review for claims of ineffective assistance of counsel is well-established. Counsel is presumed effective and appellant has the burden of proving otherwise. Commonwealth v. Carson, 559 Pa. 460, 741 A.2d 686, 697 (1999). Appellant establishes ineffectiveness of counsel with a demonstration that: (1) the underlying claim is of arguable merit; (2) counsel's action or inaction was not grounded on any reasonable basis designed to effectuate Appellant's interest; and (3) there is a reasonable probability that the act or omission prejudiced Appellant in such a way that the outcome of the proceeding would have been different. Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261, 273 (2000). If the issue underlying the charge of ineffectiveness is not of arguable merit, counsel will not be deemed ineffective for failing to pursue a meritless issue. Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744, 748 (1990). Also, if the prejudice prong of the ineffectiveness standard is not met, "the claim may be dismissed on that basis alone and [there is no] need [to] determine whether the [arguable merit] and [client's interests] prongs have been met." Fletcher, 750 A.2d at 274.

¶ 5 Appellant first argues that trial counsel was ineffective for failing to challenge the constitutionality of the weapons enhancement found at 42 Pa.C.S.A. § 9721; 204 Pa.Code 303.10 pursuant to the United States Supreme Court's recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Appellant claims trial counsel should have argued that the decision in Apprendi made it mandatory that before any sentencing enhancement could be applied, the facts supporting the enhancement must be considered by a jury and proven beyond a reasonable doubt.

¶ 6 We first consider whether Apprendi controls Appellant's case. In Apprendi, the appellant pled guilty to two counts of possession of a firearm for an unlawful purpose and one count of possession of an antipersonnel bomb. Apprendi, 530 U.S. at 469-470, 120 S.Ct. 2348. A New Jersey trial judge found, by a preponderance of the evidence, that the crime was racially motivated and that the state's hate crime sentencing enhancement applied. Id. at 471, 120 S.Ct. 2348. Appellant was sentenced on one of the firearm possession counts to a 12-year term of imprisonment and to shorter concurrent sentences on the other two counts. Id. at 471, 120 S.Ct. 2348. The maximum sentence for the firearms count was ten years. Id. at 468, 120 S.Ct. 2348. A divided New Jersey Supreme Court affirmed. Id. at 472, 120 S.Ct. 2348. Our Supreme Court reversed, holding that:

[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.

Apprendi, 530 U.S. at 489, 120 S.Ct. 2348 (emphasis added).

¶ 7 To date, no reported Pennsylvania State court has addressed the applicability of Apprendi. On the other hand, the Third Circuit Court of Appeals has in United States v. Williams, 235 F.3d 858 (3d Cir.2000). Thus, we turn for guidance to Williams.

¶ 8 The Williams Court addressed the issue of whether Apprendi applies when the penalty actually imposed is less than the original statutory maximum penalty permitted for the underlying crime. The Williams' appellant argued that Apprendi was implicated because the trial court's finding of drug quantity increased the prescribed range of penalties and the maximum penalty to which he was exposed, even though his actual penalty did not exceed the original statutory maximum of 20 years. Id. at 863.

¶ 9 The Williams Court disagreed and ruled that "Apprendi is not applicable to [appellant's] sentence, because the sentence actually imposed ... was well under the original statutory maximum of 20 years." Id. at 863. The Williams' Court utilized a two-step "Apprendi inquiry":

A court must first determine the "prescribed statutory maximum" sentence for the crime of which the defendant was convicted and assess whether the defendant's ultimate sentence exceeded it. If it did, the court must consider the second-order Apprendi question: whether the enhanced sentence was based on "the fact of a prior conviction." If it was, then the sentence is constitutional. If it was not, then the sentence is unconstitutional.

Williams, 235 F.3d at 863 n. 4.

¶ 10 Since the two-part inquiry of Williams incorporates the mandate of Apprendi, we use it here in our analysis of the issue before us. We first inquire whether Appellant's actual sentence is within the statutory maximum for aggravated assault.² The record reflects that Appellant was convicted of aggravated assault under 18 Pa.C.S.A. § 2702(a)(1). Such is a felony of the first degree. 18 Pa.C.S.A. § 2702(b). The statutory maximum sentence for a felony of the first degree is 20 years. 18 Pa.C.S.A. § 1103(1). The court sentenced Appellant to a term of imprisonment of 54 to 108 months, which is well within the statutory maximum sentence of 20 years.³...