Com. v. Hannon, S. ( 2023 )

J-A20024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN J. HANNON :
:
Appellant : No. 92 EDA 2022
Appeal from the PCRA Order Entered September 7, 2021
In the Court of Common Pleas of Wayne County
Criminal Division at No: CP-64-CR-0000366-2017
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED MARCH 10, 2023
Appellant, Sean J. Hannon, appeals nunc pro tunc from the September
7, 2021 order dismissing his petition pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
On November 5, 2017, the Commonwealth charged Appellant with two
counts of endangering the welfare of children (“EWOC”), one count of driving
under the influence (“DUI”)—general impairment, two counts of recklessly
endangering another person (“REAP”), one count of driving on a suspended
license, and one count of permitting an unlicensed driver to operate his
vehicle.1 Stated briefly, Appellant, while intoxicated and driving on a
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 4304(a)(1), 75 Pa.C.S.A. § 3802(a)(1), 18 Pa.C.S.A. § 2705,
75 Pa.C.S.A. §§ 1543(b)(1) and 1574(a), respectively.
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suspended license, permitted his 11-year old daughter to drive for him.
Appellant’s 8-year-old son was in the vehicle at the time. Appellant’s daughter
crashed at low speed into a pine tree. These facts came from an eyewitness
who became concerned about the vehicle’s erratic maneuvering. The witness
observed the daughter driving, both children fleeing from the car after the
crash, and Appellant discarding a whiskey bottle at the scene.
After Appellant’s apprehension and a blood test revealing a blood alcohol
content (“BAC”) of .228, the Commonwealth added a charge of DUI—highest
rate of alcohol.2 At the conclusion of trial, the jury found Appellant guilty of
all charges. On October 4, 2018, the trial court imposed seven to fifteen years
of incarceration. This Court affirmed on December 30, 2019.
Commonwealth v. Hannon, 3497 EDA 2018 (Pa. Super. 2019) (unpublished
memorandum). Our Supreme Court denied allowance of appeal on June 1,
2020.
Appellant filed a timely pro se PCRA petition on June 10, 2020, followed
by an amended, counseled petition on December 29, 2020. The PCRA court
conducted a hearing on April 26, 2021. The PCRA court permitted Appellant
to file this nunc pro tunc counseled appeal after original PCRA counsel
withdrew. Appellant presents two questions for our review:
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2 75 Pa.C.S.A. § 3802(c).
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I. Did the trial court err in determining that [Appellant] is not
entitled to PCRA relief in that he did not meet his burden of
proof?
II. Did the trial court err in determining that trial counsel did
not render ineffective assistance of counsel, and did the trial
court err by failing to address the cumulative nature of the
errors?
Appellant’s Brief at 7.
Our standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record of the
PCRA court’s hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve questions
of fact and law, we employ a mixed standard of review. We defer
to the PCRA court’s factual findings and credibility determinations
supported by the record. In contrast, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015), appeal denied, 123 A.3d 331 (Pa. 2015).
Counsel is presumed effective. To overcome this presumption, the
petitioner must plead and prove by a preponderance of the evidence that (1)
the underlying issue is of arguable merit; (2) counsel had no reasonable
strategic basis in support of the disputed action or inaction, and (3) counsel’s
errors prejudiced the petitioner. Commonwealth v. Barndt, 74 A.3d 185,
192 (Pa. Super. 2013). To establish that counsel’s errors were prejudicial,
the petitioner must show there is a “reasonable probability” that, but for
counsel’s errors, the outcome of the underlying proceeding would have been
different. Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013).
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A reasonable probability is “a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Commonwealth v. Hickman, 799 A.2d 136,
141 (Pa. Super. 2002)).
Appellant argues trial counsel was ineffective for stipulating to the
evidence of Appellant’s BAC, as there was a discrepancy in the chain of
custody of Appellant’s blood sample. Appellant’s Brief at 15. The
documentation of Appellant’s BAC, admitted a trial pursuant to the parties’
stipulation, reflects that the laboratory that tested Appellant’s blood did not
receive the sample until two days after it was taken. Appellant claims there
is no evidence as to how the sample was handled in the interim. Appellant
further claims that counsel offered no reasonable strategic basis in support of
his action at the PCRA hearing, and that counsel’s action was prejudicial
because it resulted in a conviction for DUI—highest rate of alcohol, rather than
DUI—general impairment.
The only law Appellant cites in support of his argument is
Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. 2010), appeal
denied, 30 A.3d 486 (Pa. 2011). In that case, this Court held that the
defendant’s Sixth Amendment right to confront the witnesses against him was
violated where the trial court admitted BAC evidence based on the testimony
of a hospital’s records custodian, but without the testimony of the laboratory
technician who performed the blood test. Id. at 368-70 (citing Melendez-
Diaz v. Massachusetts, 557 U.S. 305 (2009)).
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Barton-Martin is inapposite here, precisely because Appellant
stipulated to the admissibility of the BAC report. Appellant was not denied the
right to examine a critical witness, as in Barton-Martin. Rather, he claims
counsel was ineffective for effectively waiving that right. The fatal flaw in that
claim is that Appellant did not call any witness, or even identify any witness,
who might have substantiated his claim that his blood sample was mishandled.
Appellant produced no evidence that the whereabouts of his blood sample
could not be accounted for during the two-day delay between the blood draw
and its testing. Nor did Appellant produce evidence to challenge the accuracy
of the BAC test, nor did he produce evidence to support a claim that the tested
blood was not his.
Cognizant of the foregoing, the PCRA court explained:
I believe the primary argument is that Attorney Price should
have filed a motion to suppress because the chain of custody
evidence, if you will, demonstrated at least by documents
attached to the transcript and admitted as exhibits that there was
a break in the chain that would have kept the results out of trial.
Specifically, there was a two-day difference between what the
documents indicated the date on which the blood was collected
and the date that the trooper wrote down that he logged the blood
in and delivered it to the lab for testing. So the two-day
discrepancy is essentially the nuts and bolts of the meat of that
argument. And so I find that unavailing for several reasons.
First, [Appellant] pointed out the discrepancy in the
documents but did not further develop this claim.
Specifically, he did not demonstrate that there was in actuality a
break in the chain of a type and magnitude that would have kept
the evidence out at trial. There was nothing indicated that there
was anything other than some type of difference in dates that was
presented, and there was nothing that indicated how this matter
specifically affected him either as a practical matter or a legal
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matter. And as I indicated, I do not find credible the bold and
bald statement that the blood might have been someone else’s.
Similarly, there was no legal argument for the general assertion
that the blood would have been suppressed. And as I noted, there
was nothing to establish an actual break in the chain of a type that
would have kept the evidence out at trial. In this regard, I think
as the attorneys know, chain of custody matters as a general rule
anyway go much more to the weight of the evidence than they do
the admissibility while there needs to be a proper foundation. If
there is some glitch in the chain of title, unless it reaches a certain
level, it really becomes an argument as to the weight that should
be afforded to the evidence and not admissibility.
N.T. Hearing, 8/30/21, at 22-24 (emphasis added).
The PCRA court was correct in stating that gaps in the chain of custody
go to the weight, rather than admissibility of the evidence in question.
Commonwealth v. Cugini, 452 A.2d 1064, 1065 (Pa. Super. 1982) (holding
that “[a] complete chain of custody is not required […] [a]ny gaps in the chain
of custody go to the weight to be given the testimony, not its admissibility”).
Appellant does not address this in his brief. Rather, he baldly asserts that
counsel’s stipulation to the admissibility of the BAC evidence, despite the two-
day gap between the retrieval of the blood sample and its testing at the lab,
was sufficient to prove all three prongs of the ineffective assistance of counsel
analysis. Because Appellant bore the burden of pleading and proving his
ineffective assistance of counsel claim, and because he has failed to develop
any legal or factual support for it,3 we affirm the PCRA court’s order.
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3 Likewise, there is no merit to Appellant’s argument based on the cumulative
nature of counsel’s errors. Appellant’s appellate brief argues only one error—
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2023
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counsel’s stipulation to the BAC evidence—and we have found that assertion
to be without merit.
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