Danny Harold Pfaller v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
DANNY HAROLD PFALLER
MEMORANDUM OPINION* BY
v. 	Record No. 1403-99-2 	JUDGE MARVIN F. COLE
JULY 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
John B. Boatwright, III (Boatwright & Linka,
on brief), for appellant.
(Mark L. Earley, Attorney General; John H.
McLees, Jr., Senior Assistant Attorney
General, on brief), for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Danny Harold Pfaller, appellant, appeals his conviction for
second degree murder. 	He argues that a manifest injustice
occurred when appellant's trial counsel failed to object to the
admission into evidence of hearsay statements from a codefendant.
Appellant asks us to reverse his conviction and remand the case
for a new trial. 	Because appellant raises an ineffective
assistance of counsel claim, which cannot be raised on direct
appeal, we dismiss the appeal without prejudice.

FACTS
Appellant was convicted of second degree murder in the
beating death of the victim. 	During appellant's trial, Officer
Kelly Barton testified she interviewed Melissa Tipton, a
codefendant, at the scene of the crime. 	Barton's testimony
recounted Tipton's statements made to Barton, wherein Tipton
stated she saw appellant choke and stab the victim, then drag him
to the area where he was later found. 	Appellant's counsel
initially objected to the admission of Barton's testimony, but
later stated, "I don't have a problem with these statements."
Barton then testified concerning the statements, and appellant's
counsel did not object to the testimony.
Detective Murray Ash, Jr. testified he later interviewed
Tipton regarding the incident. 	Ash testified concerning the
contents of Tipton's statements. 	Again, Tipton stated that
appellant attacked the victim and beat him. 	Tipton also said she
saw a knife in appellant's hand during the incident. 	Appellant's
counsel did not object to the admissibility of Ash's testimony
concerning Tipton's statements.
ANALYSIS
Appellant contends that the evidence of Tipton's statements
was inadmissible hearsay pursuant to Lilly v. Virginia, 527 U.S.
116 (1999). 	Acknowledging that his trial counsel failed to object
to Barton's and Ash's testimony, appellant asserts that the issue
on appeal is whether this failure worked on him a manifest
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injustice.1 See Rule 5A:18. 	However, in asserting his claim of
manifest injustice, appellant makes assertions such as "[a]ny
reasonably competent and experienced practitioner of criminal
defense should have been well aware that" the Lilly appeal was
pending before the United States Supreme Court; "[a] proper
objection would have still allowed defense counsel latitude to
explore whatever small benefits he could have reaped from . . .
Tipton's statements, and would have preserved [appellant]'s
right to seek a new trial . . ."; "[i]nstead, trial counsel
inexplicably not only failed to act, but acquiesced in the
admission of the evidence . . ."; "[o]nce again . . .
[appellant]'s counsel failed to live up to his professional
responsibilities and to protect [appellant]'s right to a fair
trial. 	Clearly, if [appellant]'s counsel had objected to the
[evidence], [appellant]'s chances of having his petition granted
and his conviction reversed by this Court would be very good."
Furthermore, appellant argues, "to penalize [appellant] for his
trial counsel's unbelievable lack of attention to his duty as
[appellant]'s counsel would be unfair and unjust."
It is clear that appellant makes an ineffective assistance
of counsel claim on appeal to this Court. 	Claims of ineffective
assistance of counsel may no longer be raised on direct appeal.
1 At the writ panel stage of this proceeding, appellant
raised additional issues in his petition for appeal. 	With the
exception of the instant issue, the other issues were dismissed
under Rule 5A:18.
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Code § 19.2-317.1, which allowed direct appeal of such claims
under certain circumstances, was repealed in 1990.2 See 1990
Va. Acts, c. 74. 	See also Walker v. Mitchell, 224 Va. 568, 299
S.E.2d 698 (1983); Hall v. Commonwealth, 30 Va. App. 74, 82, 515
S.E.2d 343, 347 (1999).
In Walker, the Supreme Court of Virginia discussed its
reasoning for establishing a rule restricting to habeas corpus
proceedings the litigation of claims of ineffective assistance
of counsel. 	The Court stated:
From the standpoint of an attorney
charged with ineffective representation, the
ordinary criminal trial record is
insufficient to show the reasons counsel
employed or did not employ a particular
trial tactic. 	Often, actions that appear
inexplicable are made readily understandable
when the actor is given a chance to explain.
A separate habeas corpus proceeding
affords both sides an opportunity to develop
fully the factual and legal bases of their
positions with respect to a claim of
ineffective assistance of counsel. 	Using
affidavits where appropriate . . . or a
plenary hearing when necessary . . ., the
parties can produce a complete record, one
that will permit an intelligent disposition
of the habeas petition both in the trial
court and on appeal.
Walker, 224 Va. at 571, 299 S.E.2d at 699. 	The Court held that
the defendant was not entitled to have his claim heard on direct
2 Former Code § 19.2-317.1 stated: 	"A claim of ineffective
assistance of counsel may be raised on direct appeal if assigned
as error and if all matters relating to such issue are fully
contained within the record of the trial."
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appeal and dismissed the appeal as "improvidently awarded." 	Id.
at 571, 299 S.E.2d at 700.
For these same reasons, we dismiss appellant's appeal
without prejudice.
Dismissed.
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