Com. v. Tuggles, H. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HERM D. TUGGLES :
:
Appellant : No. 2392 EDA 2017
:
Appeal from the PCRA Order June 9, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012119-2014
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 13, 2018
Herm D. Tuggles appeals from the order dismissing his petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
Tuggles was admitted to the Albert Einstein Medical Center emergency
department on the night of his arrest and argues his counsel was ineffective
for failing to cross-examine the testifying police officers with statements
contained in his medical records. We affirm.
Following his September 26, 2014 arrest, Tuggles was charged with
persons not to possess firearms, firearms not to be carried without a license,
and carrying firearms on public streets or public property in Philadelphia.1 At
Tuggles’ bench trial on November 20, 2015, Police Officers Fred MacConnell
and Justin O’Brian testified that while on patrol at approximately 8:24 p.m. on
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1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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September 26, 2014, they observed Tuggles pacing back and forth on a street
in Philadelphia, Pennsylvania. N.T., 11/20/15, at 11-12, 43. They observed
Tuggles remove a large black handgun from his waistband and place it in the
trunk of a black Chevy Impala. Id. at 12-13, 43. Officer MacConnell testified
that he was was about a half a block, or 30 to 40 yards, from Tuggles, with
street lights on, when he saw Tuggles place a gun in the trunk. Id. at 13-14.
He stated that he had a back and side view of Tuggles, and saw him pacing
for less than one minute. Id. at 13, 29. Similarly, Officer O’Brian testified he
was about 40 yards from Tuggles when he observed Tuggles place the gun in
the trunk. Id. at 46.
According to both officers’ testimony, Tuggles then proceeded to get
into the passenger seat of the vehicle, and the driver drove away. Id. at 12,
43. The officers pulled the vehicle over, and Tuggles got out and fled on foot.
Id. at 12, 44. Officer MacConnell put a description over the police radio for “a
black male, approximately 5-4, 5-6 wearing a gray hoodie and gray
sweatpants.” Id. at 12, 19. He recovered a loaded black Smith and Wesson
44-magnum handgun from the trunk of the Impala. Id. at 19.
Officer O’Brian pursued Tuggles on foot through a breezeway. Id. at 44.
Officer O’Brian then backed out of the breezeway and set up a perimeter, as
he believed Tuggles could get out only if he went “through a door and he
[came] out the front.” Id. at 44. Officer O’Brian and Lieutenant Hoyt2 surveyed
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2 Lieutenant Hoyt’s first name is not in the record.
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the area in an unmarked vehicle. Id. After a “good half hour,” Officer O’Brian
received a call and proceeded to an area approximately “three very short
blocks” away where saw Tuggles get into a white Nissan Maxima and drive
away. Id. at 44-45, 50, 52. Officer O’Brian and Lieutenant Hoyt stopped the
vehicle and Officer O’Brian identified Tuggles. Id. at 52. Officer MacConnell
testified that about 45 minutes after the initial encounter, he arrived at the
location of the arrest and identified Tuggles, who was in a marked police car.
Id. at 20-21, 26.
Officer MacConnell testified that when Tuggles was in the police car, he
was still wearing gray pants and a gray hoodie. Id. at 22. Further, Officer
MacConnell testified that Tuggles had dirt and leaves on him when he
identified Tuggles, id. at 21, and Officer O’Brien testified Tuggles was covered
with mud and dog feces when arrested, id. at 51. Officer O’Brian testified that
when transporting Tuggles to the police station, Tuggles stated to Officer
O’Brian: “[P]lease don’t put that gun in my waistband.” Id. at 53.
On cross-examination, both officers acknowledged that the police forms
stated an arrest occurred at either 11:10 p.m. or 11:15 p.m., which would
have been almost three hours after the initial encounter. Id. at 24-26, 56.
The officers were unsure why the forms stated 11:10 p.m. and 11:15 p.m. as
the arrest time, and confirmed that the arrest occurred about 40 to 45 minutes
after the initial encounter. Id. at 55-57, 24-26. Officer O’Brian stated that he
arrested Tuggles about two and a half miles from the location where he initially
saw him put the gun in the car, id. at 66, and Officer MacConnell testified that
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he identified Tuggles about two and a half miles from the location of the initial
observation, id. at 26. In addition, Officer MacConnell acknowledged on cross
examination that the police paperwork stated Tuggles was wearing a white t-
shirt, not a gray hoodie, when arrested and that the paperwork does not
mention leaves, brush, or debris, Id. at 36-37, and Officer O’Brian testified
the police paperwork does not mention mud, leaves, or dirt, id. at 58.
In his closing argument, Tuggles’ counsel argued that this was a
“misidentification case.” N.T., 11/20/15, at 72. He noted the conditions that
existed when the officers first observed Tuggles and inconsistencies in the
record and testimony, including that the police records state the arrest
occurred three hours after the initial encounter, not 40 to 45 minutes after as
stated by the police officers id. at 74-75, and when Tuggles was arrested he
was wearing a white t-shirt, not a gray hoodie, id. at 75. He further argued
that Tuggles would not have said “please don’t place that gun in my
waistband,” id. at 77, noting “[h]ow many times have you heard an officer
use the word waistband?” and “[do] you think Mr. Tuggles talks like please
don’t place this gun in my waistband?” id. at 78.
No evidence or testimony at trial mentioned that Tuggles was taken to
the Albert Einstein Medical Center emergency room on the night of his arrest,
and Tuggles’ counsel did not cross-examine the police officers with any
statements contained in the medical records from the emergency room.
The trial court found Tuggles guilty of the above-referenced offenses.
The trial court sentenced Tuggles on January 14, 2016 to five to ten years’
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imprisonment for the conviction for persons not possess firearms, and three
to six months’ imprisonment and seven years’ probation for the firearms not
to be carried conviction. The court ordered that the sentences run concurrent
and imposed no further penalty for the conviction for carrying firearms on
public streets or public property in Philadelphia.
On January 22, 2016, Tuggles, now represented by new counsel, filed a
motion for new trial, arguing Tuggles was taken to Albert Einstein Medical
Center at 11:39 p.m. following his arrest and trial counsel erred by not using
statements from the medical records to challenge the credibility of Officers
MacConnell and O’Brian.3 On December 13, 2016, the trial court denied the
motion.
On January 11, 2017, Tuggles filed a PCRA petition, alleging that his
counsel was ineffective for failing to use the medical records to challenge the
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3 On January 20, 2016, Tuggles’ trial counsel filed a post-sentence motion,
arguing the verdict was against the weight of the evidence and the trial court
abused its discretion when sentencing him. On January 25, 2016, the trial
court denied this motion. On January 22, 2016, new counsel filed the post-
trial motion. Although the record does not contain a motion to vacate the post-
sentence motion, the trial court record contains an order granting a “motion
to vacate post sentence motion.” Order, filed 2/19/16. Further, the record
contains orders scheduling a sentencing hearing, see, e.g., Writ Order, filed
2/19/16. The trial court noted that “I would concede with you that the quarter
session’s file and the orders that I have are ambiguous at best and a mess at
wors[t].” N.T., 12/9/16, at 24.
Here, Tuggles was sentenced on January 14, 2016, and the trial court did not
vacate this order. Regardless of whether his judgment of sentence became
final 30 days after sentencing, 30 days after the order denying the post-
sentence motion filed by his trial counsel, or 30 days after the order denying
the post-trial motion filed by PCRA counsel, his PCRA petition is timely.
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credibility of the police officers. Tuggles claimed counsel should have used
statements from the medical records to challenge the credibility of Officers
MacConnell and O’Brian, including that “per police [patient] was evading arrest
and fell while running, abrasions noticed to left hand and left leg” and that the
onset was “just prior to arrival.” PCRA Pet., filed 1/11/17, at ¶ 20. He attached
medical records to the PCRA petition, with highlighted portions, including: (1)
“[p]er the police, the patient was running from the police while armed. He fell
to the ground sustaining the above injuries. He denies obtaining any GSW
during the fall. He was brought to the ED in police custody” and (2) patient “is
a 22-year old male that presents to the emergency department in police
custody after he was allegedly running from police while holding a gun on the
front of his pants. The patient fell and sustained a contusion to his left groin.
Small abrasion to the hand.” PCRA Pet., filed 1/11/17, at Ex. A, at 6, 8.
The PCRA court held an evidentiary hearing. Trial counsel, who had 17
years of criminal-law experience, testified that he requested Tuggles’ medical
records from the night of the arrest to determine whether there was a
difference “in the police statements at trial compared to what was in the
medical records.” N.T., 6/9/17, at 12. He said he did not use the records at
trial because the “only defense that would totally exonerate Mr. Tuggles would
be an [identification] defense,” and, because the records indicated Tuggles
was hurt during a chase, it would give proof that he was the person who ran
from, and was chased by, the police. Id. at 14. In addition, he did not use the
records because the police officers who took Tuggles to the hospital were not
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the police officers involved in the arrest. Id. at 14-15. Counsel testified that
he did not request a transportation form during discovery. Further, he did not
provide a copy of the medical records to the Commonwealth because “the last
thing I wanted them to see was that he was – he sustained injuries during a
chase.” Id. at 18. In addition, Officer MacConnell testified at the PCRA hearing,
stating that neither he nor Officer O’Brian took Tuggles to the hospital. Id. at
45-46.
On June 9, 2017, the PCRA court denied the petition. Tuggles filed a
timely notice of appeal.4
Tuggles raises the following issue on appeal:
I. Whether the PCRA court erred in denying [Tuggles’ PCRA]
Petition because trial counsel was ineffective in failing to
introduce medical records which would have impeached the
police testimony introduced at trial.
Tuggles’ Br. at 6 (unpaginated).
Tuggles claims his trial counsel was ineffective for failing to challenge
the police officers’ credibility with the statements from the medical records.
He argues that (1) his issue has arguable merit because the documents would
have impeached the testimony of Commonwealth witnesses; (2) counsel had
no reasonable basis for not using the records, claiming the identification
defense was not viable, particularly due to Tuggles’ confession; and (3) had
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4 After the PCRA court denied the petition, it permitted PCRA counsel to
withdraw. Tuggles has new counsel on appeal.
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counsel used the records, there is a reasonable probability that the outcome
of the trial would have been different.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and whether it is free of legal error.” Commonwealth
v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
To prevail on an ineffective assistance of counsel claim, the petitioner
must establish: “(1) his underlying claim is of arguable merit; (2) counsel had
no reasonable basis for his action or inaction; and (3) the petitioner suffered
actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311
(Pa. 2014). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244(quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)).
“The failure to prove any one of the three [ineffectiveness] prongs results in
the failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).
“If counsel’s chosen course had some reasonable basis, the inquiry ends
and counsel’s assistance is deemed effective.” Commonwealth v. Williams,
899 A.2d 1060, 1064 (Pa. 2006). “A chosen strategy will not be found to have
lacked a reasonable basis unless it is proven ‘that an alternative not chosen
offered a potential for success substantially greater than the course actually
pursued.’” Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (quoting
Williams, 899 A.2d at 1064).
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Here, the PCRA court concluded that Tuggles’ ineffectiveness claim
lacked merit because trial counsel had a reasonable basis for not using the
medical records since the medical records would have served to corroborate
police testimony that they chased Tuggles. It concluded that:
[I]n this case, the way [trial counsel] tried it, in my view,
was more than reasonable given his experience, extensive
experience, in representing clients, his evaluation of the
case and the merits of an [identification] defense, and given
the unique facts of the case, which include that it was dark
out, there were streetlights there, but the observation was
120 feet away, less than a minute, more than two hours
later is where he was ultimately arrested and two and a half
miles away, that those, in his view, made a good
[identification] case or [identification] defense. And, thus,
introducing [Tuggles’] medical records that would confirm
that, in fact, it was Mr. Tuggles who was running from the
police, per the paperwork, would have vitiated that
[identification] defense, in my view [that] was [trial
counsel’s] call to make and within the realm of reason [of
an experienced criminal defense attorney].
Trial Court Opinion, filed Oct. 3, 2017, at 6 (quoting N.T., 6/9/17, at 72) (some
alterations in original).5
We conclude the trial court’s conclusion is supported by the record and
it did not err in finding the ineffectiveness claim fails because counsel had a
reasonable basis for not challenging the officers’ credibility with the medical
records.
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5Further, trial counsel addressed Tuggles’ statement during closing argument,
arguing that Tuggles would not have said “please don’t put the gun in my
waistband.” N.T., 11/20/15, at 77-78.
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Because we conclude the court did not err in finding counsel had a
reasonable basis for his trial strategy, we need not address the arguable merit
and prejudice prongs of the ineffectiveness claims. See Ousley, 21 A.3d at
1244. Further, we note the cases relied on by Tuggles are distinguishable. In
Commonwealth v. Whiting, 517 A.2d 1327, 1336 (Pa.Super. 1986), this
Court found counsel ineffective where he did not question a detective about a
statement in a police report that the detective prepared that would have
impeached a Commonwealth witness and corroborated the defendant’s
testimony. In Commonwealth v. Bolden, 534 A.2d 456, 460 (Pa. 1987), the
Pennsylvania Supreme Court concluded trial counsel was ineffective where,
due to an “inadvertent oversight,” counsel failed to question a police officer
with a police report prepared by the officer which contained a version of events
consistent with the defendant’s alibi witness’s testimony and inconsistent with
the officer’s trial testimony. Here, the testifying officers did not make the
statements included in the medical records, or prepare the report containing
the statement. Further, unlike counsel in Bolden, Tuggles’ counsel had a
strategic reason for not using the statements from the medical records; the
failure to question regarding the medical records was not “inadvertent.”
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/18
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