PA Superior Court: Defendant May Raise Ineffective Assistance of Counsel Claims on Direct Appeal Where Claims Are Obvious From Record
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Supreme Court has decided the case of Commonwealth v. McMahon, holding that inadmissible opinion testimony from police about crimes the defendant may have committed but for which he was not charged require a new trial and that the defendant should have been able to raise the claim that his lawyer should have objected to this testimony on direct appeal because the ineffective assistance of counsel was obvious from the record.
Commonwealth v. Bieber
A Pennsylvania jury initially found the defendant guilty of one count of carrying firearms without a license and four counts of harassment. The jury found the defendant not guilty of 16 other counts. The defendant had originally been charged with aggravated assault and other more serious offenses. The court sentenced the defendant to a short county jail sentence, and the defendant appealed. The defendant won his first appeal after successfully arguing that the trial court had conducted a defective waiver-of-counsel colloquy. The appellate courts remanded the case for a new trial.
At the second trial, the Commonwealth proceeded only on the VUFA § 6106 charge because the defendant had been acquitted of the other offenses. Thus, even though he won his first appeal, double jeopardy had attached to the offenses of which he was acquitted. It did not attach, however, to the offense of which he was originally convicted.
VUFA § 6106 makes it illegal to carry a concealed firearm or a firearm in a car without a license to carry. There are, however, numerous exceptions. The exception at issue in this case was the Sportsman’s Permit Exception, which allows for individuals who possess a hunting license to carry a firearm in a vehicle when they are genuinely on their way to or from hunting.
The Facts at Trial
The Commonwealth established that the defendant was driving a car with his then-girlfriend when police conducted a vehicle stop. Police observed a handgun in plain view on the driver’s side of the car, in addition to a holster, a magazine containing eight rounds of ammunition, and one loose round. The handgun was unloaded. The defendant’s girlfriend told police that the gun was not loaded, but at trial, she testified that she had lied. She then testified that during the traffic stop, she heard clicks and the sound of something hitting the floor, and she further explained that the defendant had told her not to tell police that the gun was loaded.
Sergeant Craig Wharton testified that the defendant had previously possessed a license to carry a concealed firearm, but the license had been revoked in 2014. He also testified that at the time of the stop, the defendant possessed a Pennsylvania’s Sportsman’s Firearm Permit, but he did not believe Section 6106(b)(9) applied because the defendant had not been engaged in any hunting or other relevant activities at the time of the traffic stop.
Sheriff Frank Levindoski also testified, explaining that individuals without a carry-concealed permit cannot legally transport a loaded firearm in their car. He then testified to his interpretation of the proper way to transport a loaded firearm. His opinion that an individual may not carry a loaded firearm in a car without a license to carry was based on his interpretation of a different statute, § 6106.1, which the defendant had not been charged with violating. Based on the Commonwealth’s allegations, the defendant could have been charged with violating this statute, but he had not been. The defendant objected to this testimony.
The defendant then testified in response. He provided evidence of his fishing license, hunting license, and sportsman’s firearm license. He admitted he owned the firearm recovered by the police and testified that he had planned to go fishing after dropping his girlfriend off at her home. He also testified that he had had fishing poles and a tackle box in his vehicle, but the police had not searched the trunk, so they did not see those items.
During closing arguments, the Commonwealth asked the jury to rely on Sheriff Levindoski’s testimony that the defendant could not have a loaded firearm in his vehicle without a carry-concealed license unless he was an officer of the law. The jury found the defendant guilty of violating Section 6106. The defendant filed a post-sentence motion seeking unitary review on direct appeal of both his appellate claims and his ineffective assistance of counsel claims (IAC). The trial court held a hearing on the post-sentence motion, but it refused to address the IAC claim that his lawyer should have objected to the officer’s opinion testimony. It denied the motions.
The defendant again filed a timely notice of appeal.
The Pennsylvania Superior Court’s Decision
On appeal, the defendant argued that the Commonwealth elicited inadmissible opinion testimony from Sergeant Wharton and Sheriff Levindoski. He also argued that that his trial counsel was ineffective in failing to object to such testimony. The defendant also argued the trial court erred in declining to grant a new trial due to the error in admitting the improper opinion testimony. The defendant asserted the trial court erred by not permitting the defendant to raise his ineffective assistance of counsel claims in the post-sentence motion so that they would be preserved for the direct appeal.
The Superior Court began its review by addressing Section 6106 and exception Section 6106(b)(9), also known as the Sportsman’s Permit Exception. Notably, the Sportsman’s Permit Exception applies to loaded and unloaded firearms. However, a separate statute, Section 6106.1, does prohibit an individual from carrying a loaded firearm in a vehicle.
The Superior Court further addressed the defendant’s claim that the trial court erred in denying his request to litigate his IAC claims on direct appeal. The Superior Court reviewed relevant case law, including the Holmes exceptions. Typically, IAC claims may only be raised in PCRA proceedings, and PCRA proceedings take place after the direct appeal. The direct appeal generally addresses errors of law made by the trial judge where the trial judge was asked to make a ruling by the lawyers, whereas PCRA proceedings most often involve claims of ineffective assistance of counsel. Thus, a direct appeal claim would be that the judge should have granted a motion, while the PCRA claim would be that the lawyer was ineffective in failing to bring a legitimate motion.
There are exceptions to this rule, however, pursuant to Commonwealth v. Holmes. For example, a defendant may potentially raise a PCRA claim on direct appeal where the ineffectiveness is so apparent that immediate consideration would best serve the interests of justice. In such a case, the defendant generally must raise the claim in a post-sentence motion and agree to waive their right to file a PCRA following the direct appeal. Courts are most likely to address the PCRA claims early when the defendant is serving a short sentence which could expire before a PCRA may be filed. A defendant must be serving a sentence in order to file a PCRA, so if the sentence has expired, the defendant cannot litigate a PCRA. Here, the defendant had received a short sentenced, and he argued that the exception applied.
Because the defendant was unlikely to have sufficient time to file a PCRA following the appellate process, the Superior Court agreed to review the claim. The Superior Court concluded that the trial court should have permitted the defendant to raise his IAC claims in the post-sentence motions and on direct appeal because his short sentence would not afford him a realistic ability to obtain consideration of his IAC claims during a PCRA review. The Superior Court therefore addressed the issues on the merits.
The Court agreed with the defendant’s claims. It reasoned that when evidence is improperly admitted, the error is subject to harmless error analysis. The defendant argued that Sergeant Wharton’s testimony constituted improper legal opinion testimony by providing a legal conclusion. The trial court did not address the admissibility of this testimony but determined that it was harmless error, while the Commonwealth argued that his testimony simply explained with what he was charged and why. The Superior Court agreed with the Commonwealth that Sergeant Wharton did not interpret the law. Instead, he testified based on his own observations whether he saw evidence that the defendant would soon engage in hunting activities.
Regarding Sheriff Levindoski’s testimony, neither the trial court nor the Commonwealth addressed the admissibility of his testimony, though both explained that any error was harmless. The Superior Court agreed with the defendant, stating that Sheriff Levindoski should not have testified to the contents or his interpretation of Section 6106.1 since he had served as a lay witness, not an expert witness. Further, any testimony regarding § 6106.1 was irrelevant because the defendant was not charged with violating that statute.
The Superior Court also disagreed with the trial court’s assertion that the error was harmless and that the evidence was overwhelming. Although the defendant’s girlfriend testified that the defendant never said he was going fishing, the defendant did not testify that he planned to take his girlfriend fishing with him. Additionally, none of the officers testified to searching the trunk of the vehicle, where the defendant claimed that he had kept the fishing equipment. Finally, none of the officers testified to asking the defendant about his intent to go fishing. Thus, the Superior Court asserted that the issue for the jury to resolve was the defendant’s credibility and that the evidence against the applicability of the Sportsman’s Permit Exception was not overwhelming. The Superior Court also found that the Commonwealth relied on Sheriff Levindoski’s inadmissible testimony in its closing argument, proving the error was not harmless. Specifically, the Commonwealth emphasized the prohibition against carrying a loaded firearm in a vehicle under Section 6106.1, which had been introduced under Sheriff Levindoski’s testimony, though this had nothing to do with the Sportsman’s Permit Exception, and the defendant had not been charged with a Section 6106.1 violation. The Superior Court explained it could not conclude that Sheriff Levindoski’s testimony did not contribute to the verdict. Therefore, the Superior Court vacated the judgment of sentence and remanded for a new trial.
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