Com. v. McGonigal, J. ( 2018 )

J-A07030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON MCGONIGAL :
:
Appellant : No. 1101 MDA 2017
Appeal from the PCRA Order June 12, 2017
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000474-2013
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JUNE 01, 2018
Appellant, Jason McGonigal, appeals from the order entered on June 12,
2017, dismissing his first petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
On December 20, 2012, around 9:30 p.m., Monroe Bell entered
the Puff Super Value store in Philipsburg, Pennsylvania. Peggy
Marty, a store employee, was re-stocking the soda cooler. She
heard Bell enter and went to the counter. Bell pulled out a knife
and told Marty to “get all the money out of the register.” Bell also
told Marty to give him the cash from a second register that was
used for lottery receipts. He then demanded two cartons of
cigarettes. As Bell left the store, Marty heard someone
immediately outside the door say, “Let's get the fuck out of
here.” However, Marty was unable to see the person outside.
An informant provided information to the police that Bell was
involved in this robbery. When questioned by the police, Bell
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* Former Justice specially assigned to the Superior Court.
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confessed to the robbery and implicated [Appellant] as the person
outside the store.
At [Appellant’s] jury trial, Bell testified as follows. [Bell] was living
with his friend, Donald Pearsall, and Pearsall invited [Appellant],
who was a friend of theirs from school, to stay for a few days. At
that time, Bell was using drugs on a daily basis and claimed that
[Appellant] did as well. [Appellant] suggested that he and Bell
could get money for drugs by robbing a store. [Appellant] told Bell
what they should wear and what kind of weapon to use.
[Appellant] said that they should rob the store around 9:30 p.m.,
because it would be near closing time and it was unlikely that
there would be customers inside the store. Initially, Bell refused
to participate. However, he and [Appellant] were drinking alcohol
and [Appellant] convinced him. They discussed that [Appellant]
was going to stay outside as a look-out, while Bell went inside to
rob the store. Bell and [Appellant] got dressed in the dark clothing
that they had discussed. [Appellant] got a knife. Then, they
walked to the store. [Appellant] waited outside while Bell went
into the store. As Bell was leaving [the store], [Appellant] opened
the door and told Bell to hurry up. They returned to Pearsall's
house and divided the money and cigarettes. Bell gave some
money to Pearsall.
Pearsall testified that he overheard Bell and [Appellant] talking
about their plan to rob the store. Pearsall said that Bell did not
want to participate in the robbery and that [Appellant] was trying
to convince Bell. Pearsall heard [Appellant] say that he would
watch the door while Bell went in with a knife. Pearsall told them
not to do it because he did not want any trouble occurring at his
house. Pearsall went to bed, but woke up later that night and saw
Bell and [Appellant] with money, a ski mask, gloves, and cartons
of cigarettes.
On September 16, 2013, the jury found [Appellant] guilty of
conspiracy to commit robbery, conspiracy to commit theft by
unlawful taking, conspiracy to commit receiving stolen property,
and receiving stolen property. [18 Pa.C.S.A. § 903 (18 Pa.C.S.A.
§ 3701(a)(1)(ii)); 18 Pa.C.S.A. § 903 (18 Pa.C.S.A. § 3921(a));
18 Pa.C.S.A. § 903 (18 Pa.C.S.A. § 3925(a)); and 18 Pa.C.S.A. §
3925(a), respectively.] [Appellant] was acquitted of robbery and
theft. On October 17, 2013, [Appellant] was sentenced to five to
ten years' incarceration. On October 28, 2013, [Appellant] timely
filed a post-sentence motion for a new trial in which he raised a
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weight of the evidence claim. In a memorandum opinion, the trial
court denied the motion on February 26, 2014.
On March 26, 2014, [Appellant] timely filed a notice of appeal.
The trial court ordered, and [Appellant] timely filed, a concise
statement of errors complained of on appeal pursuant to
Pa.R.A.P.1925(b). The trial court filed an opinion that adopted the
rationale that the court set forth in its February 26, 2014
memorandum. [This Court affirmed Appellant’s judgment of
sentence in an unpublished memorandum filed on March 30,
2015.]
Commonwealth v. McGonigal, 2015 WL 7454233 (Pa. Super. 2015)
(unpublished memorandum) at *1–2.
Appellant filed a timely PCRA petition on April 4, 2016. Originally, the
PCRA court entered an order purporting to dismiss the PCRA petition, but it
subsequently entered an amended order on October 5, 2016 giving Appellant
notice of the PCRA court’s intention to dismiss the petition without a hearing
pursuant to Pa.R.Crim.P. 907. Thereafter, the PCRA court granted Appellant
leave of court to file an amended PCRA petition. Appellant filed an amended
PCRA petition on November 14, 2016. The PCRA court entered an order, and
accompanying opinion, giving Appellant Rule 907 notice on April 3, 2017. On
June 12, 2017, the PCRA court entered an order dismissing Appellant’s
amended PCRA petition. This timely appeal resulted.1
Appellant presents the following issues for our review:
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1 Appellant filed a notice of appeal on July 10, 2017. On July 18, 2017, the
PCRA court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
August 8, 2017. On August 14, 2017, the PCRA court filed an opinion pursuant
to Pa.R.A.P. 1925(a) largely incorporating its rationale from its April 3, 2017
opinion.
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I. Whether the [PCRA] court erred in denying Appellant[’s] PCRA
petition, and, in doing so:
a. Finding trial counsel was not ineffective for failing to object to prior
bad act testimony;
b. Finding trial counsel’s line of questioning of Commonwealth
witness Pennsylvania State Police Trooper [Richard] Hoover
regarding Appellant[’s] prior bad acts was reasonable; and,
c. Finding trial counsel’s failure to request a jury instruction on the
issue of prior bad acts had a reasonable basis.
Appellant’s Brief at 4.
Appellant argues, in three sub-arguments, that trial counsel was
ineffective in her treatment of prior bad acts. Id. at 11-20. More specifically,
Appellant claims that trial counsel elicited testimony from Trooper Richard
Hoover pertaining to Donald Pearsall, an acquaintance of Appellant and co-
defendant, Monroe Bell. Id. at 13. Trial counsel asked whether Pearsall told
Trooper Hoover that Appellant “had used too many people in the past and
didn’t want to see him get away with it.” Id. Thereafter, when the
Commonwealth questioned Trooper Hoover on re-direct examination, Trooper
Hoover testified that Pearsall “mentioned that [Appellant] had got him tied up
in criminal activity.” Id. at 14. Appellant argues that the PCRA court erred
by opining that the aforementioned testimony were merely fleeting references
to criminal activity and objecting would have necessarily drawn reference to
it. Id. at 13. Appellant further argues that trial counsel was ineffective for
questioning Trooper Hoover about his conversations with an informant
wherein the informant revealed that Appellant was involved in another,
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unrelated robbery at a “mini mart.” Id. at 17. Appellant claims that trial
counsel could have narrowly tailored her questions to avoid testimony
pertaining to another robbery. Id. at 18. Appellant maintains “trial counsel
was ineffective for failing to request a curative or cautionary jury instruction
regarding the prior bad act testimony elicited[.]” Id. at 19.
On appeal from the denial of PCRA relief,
our standard of review calls for us to determine whether the
ruling of the PCRA court is supported by the record and free of
legal error. The PCRA court's findings will not be disturbed unless
there is no support for the findings in the certified record.
The PCRA court's factual determinations are entitled to deference,
but its legal determinations are subject to our plenary review.
Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal
quotations and citations omitted).
Our Supreme Court previously determined:
In order to prevail on a claim of ineffective assistance of counsel,
an appellant must show: (1) that the claim is of arguable merit;
(2) that counsel had no reasonable strategic basis for his or her
action or inaction; and (3) that, but for the errors and omissions
of counsel, there is a reasonable probability that the outcome of
the proceedings would have been different.
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (internal
quotations and citations omitted).
Regarding prior bad acts under Pa.R.E. 404(b), our Supreme Court
stated:
Evidence of prior bad acts is inadmissible to prove character or to
show conduct in conformity with that character. Such evidence
is, however, admissible when offered to prove some other relevant
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fact, such as motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. […T]here
are exceptions to the rule that reference to prior bad acts is error
“where there is a legitimate basis for the introduction of the
evidence other than a mere attempt to establish the accused's
predisposition to commit the crime charged.” [See
Commonwealth v. Spruill, 391 A.2d 1048, 1050 (Pa. 1978)].
However, while evidence of prior bad acts may be relevant and
admissible, there is the “potential for misunderstanding on the
part of the jury when this type of evidence is
admitted.” Commonwealth v. Claypool, 495 A.2d 176, 179
(Pa. 1985). This evidence must, therefore, “be accompanied by a
cautionary instruction which fully and carefully explains to the jury
the limited purpose for which that evidence has been
admitted.” Id. In the context of an ineffectiveness claim,
counsel's failure to request a cautionary instruction regarding
evidence of other crimes or prior bad acts does not constitute per
se ineffectiveness; “[r]ather, in order to obtain relief under such
a claim, a defendant must still satisfy each of the three prongs of
the test for ineffective assistance of counsel.” Commonwealth
v. Buehl, 658 A.2d 771, 778 (Pa. 1995) (plurality).
Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013) (some internal
citations and quotations omitted).
Moreover,
[w]here evidence of a defendant's prior bad acts is merely
a fleeting or vague reference, however, trial counsel might
reasonably decline to object or request a limiting instruction to
avoid drawing attention to a reference that might have gone
relatively unnoticed by the jury.
Hutchinson, 811 A.2d at 562.
Here, the PCRA court found that Appellant “ha[d] not proven his claim
for ineffective assistance of counsel, because [trial counsel’s] actions/inactions
had a reasonable basis and [Appellant] failed to demonstrate how her
actions/inactions prejudiced him.” Trial Court Opinion, 4/3/2017, at 4. More
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specifically, the PCRA court determined that “it was reasonable not to object
to Trooper Hoover’s fleeting reference that [Appellant] had gotten others ‘tied
up in criminal activity’ and [the Commonwealth’s] question during Mr. Bell’s
direct testimony indicating [Appellant’s] potential involvement in a separate
crime.” Id. The PCRA court also determined that counsel’s questions
“pertaining to information obtained by [a confidential informant] to be part of
a reasonable trial strategy” because trial counsel “was attempting to discredit
[Appellant’s] co-conspirator.” Id. at 4-5. Accordingly, the PCRA court
determined that the foregoing references to Appellant’s participation in crime,
separate and apart from the crimes for which he was being tried, were fleeting
and it was reasonable for trial counsel to forego a jury instruction on prior bad
acts. Id. at 6.
Upon review of the record, we conclude that Appellant failed to plead
and prove a plausible claim that he was prejudiced by trial counsel’s actions.
Initially, we note that Appellant’s co-defendant, Monroe Bell, testified at
Appellant’s trial and directly implicated Appellant in the robbery of the Puff
Super Value store.2 N.T., 9/16/2013, at 54. Moreover, Donald Pearsall
testified that he heard Appellant and Bell talking about the robbery beforehand
and saw the proceeds of the robbery and a ski mask and gloves in Appellant’s
possession immediately afterwards. Id. at 87-90.
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2 Bell admitted that he, acting alone, committed another, unrelated robbery
several months earlier at a “mini mart.” Id. at 70-71. To bolster his
credibility, Bell testified that he could have falsely implicated Appellant in the
mini-mart robbery, but he did not. Id. at 79, 82.
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In view of overwhelming and uncontradicted direct evidence of
Appellant’s involvement in the Puff Super Value store robbery, we cannot
agree that trial counsel’s alleged actions or inactions with respect to prior bad
acts caused Appellant to suffer prejudice. The allegations of trial counsel error
cited by Appellant were not attempts to establish Appellant’s predisposition to
commit the crimes charged. In reviewing trial counsel’s questioning of
Trooper Hoover regarding Donald Pearsall, the purpose was to demonstrate
Donald Pearsall’s bias against Appellant. Trial counsel asked Trooper Hoover
if there was “bad blood” between the men. N.T., 9/16/2013, at 104-105. The
Commonwealth asked follow-up questions and Trooper Hoover made fleeting
reference to unspecified prior criminal “activity” and/or “endeavors.” Id. at
105. Trial counsel also asked Trooper Hoover if an informant ever mentioned
Appellant. Id. at 101. Trooper Hoover testified that the informant mentioned
Appellant in a “mini-mart robbery, not the Puff Tobacco Outlet.” Id. at 101.
This line of questioning was an attempt to show inaccuracies between the
informant and co-defendant, Monroe Bell. Moreover, Appellant has not shown
how he was prejudiced by these comments in light of Monroe Bell’s testimony
that Appellant did not participate in the other robbery. Requesting a
cautionary instruction would have only highlighted the aforementioned
fleeting references to prior bad acts. Appellant has failed to prove that the
outcome of trial would have been different but for trial counsel’s actions or
inactions. Hence, because trial counsel was effective, we discern no abuse of
discretion or error of law in dismissing Appellant’s PCRA petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/01/18
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