Com. v. Hetherington, G. ( 2019 )

J-S73013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GEOFFREY HETHERINGTON :
:
Appellant : No. 358 WDA 2018
Appeal from the PCRA Order January 25, 2018
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004012-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 27, 2019
Appellant, Geoffrey Hetherington, appeals from the order entered in the
Westmoreland County Court of Common Pleas, which denied his petition
brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. On
September 9, 2013, police arrested Appellant near Victim’s residence after a
911 call by a neighbor for a disturbance. On September 29, 2014, the court
held a bench trial and convicted Appellant of two counts of stalking and one
count of terroristic threats. Appellant did not testify at trial, and the court did
not conduct a colloquy regarding Appellant’s right to testify. The court
sentenced Appellant on December 29, 2014, to 8 to 24 months’ imprisonment
on each stalking conviction, to run consecutively, for an aggregate term of 16
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to 48 months’ imprisonment, plus 5 years’ probation on the terroristic threats
conviction.1
Appellant filed a timely PCRA petition in January 2015, which was
followed by a convoluted path to review, involving multiple changes of
counsel, pro se filings, procedural delays, and premature appeals, until
January 25, 2017, when this Court vacated the PCRA court’s September 14,
2015 order dismissing Appellant’s first PCRA petition and remanded for
counsel to file an amended PCRA petition or a Turner/Finley2 no-merit letter.
On February 7, 2017, the PCRA court granted Appellant’s motion to
appoint new counsel to represent Appellant. On November 29, 2017, current
counsel filed an amended PCRA petition, which argued trial counsel was
ineffective for depriving Appellant of his right to testify at trial.3 The PCRA
court held a hearing on January 25, 2018. During the hearing, Appellant
testified on direct examination that he could not recall a conversation with
trial counsel, before or at trial, about Appellant’s desire to testify at trial. On
cross-examination, Appellant testified that counsel ignored Appellant during
____________________________________________
1 The court held a consolidated bench trial at two different dockets, 4009-
2013 and 4012-2013. Appellant is no longer serving a sentence for the
stalking conviction at No. 4009-2013.
2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3 On December 22, 2017, the court found Appellant in violation of his
probation, which the court revoked, and resentenced Appellant to 5 years’
probation.
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trial when he asked to testify. On re-direct examination, Appellant testified
that he did not have a full conversation with trial counsel with respect to
testifying at trial.
On the other hand, trial counsel testified that she thoroughly advised
Appellant of his rights and could not recall Appellant asking to testify at trial.
Trial counsel also testified that Appellant was on probation at the time of trial
for nearly identical offenses with the same victim, and counsel believed
Appellant would have been susceptible to significant impeachment if he had
testified. At the end of the hearing, the PCRA court denied relief. Appellant
timely filed a notice of appeal on Monday, February 26, 2018. The PCRA court
did not order and Appellant did not file a Rule 1925(b) statement.
Appellant raises the following issue for our review:
WHETHER THE [PCRA] COURT ERRED WHEN IT MADE A
FINDING THAT [APPELLANT] WAS NOT ENTITLED TO POST-
CONVICTION COLLATERAL RELIEF, EVEN THOUGH THE
EVIDENCE PRESENTED AT THE PCRA HEARING SHOWED
THAT DEFENSE COUNSEL PRECLUDED [APPELLANT] FROM
TESTIFYING AT HIS NON-JURY TRIAL, CAUSING THE COURT
TO FIND [APPELLANT] GUILTY[?]
(Appellant’s Brief at 6).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
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the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012). Traditionally, credibility issues are resolved by the trier of fact who
had the opportunity to observe the witnesses’ demeanor. Commonwealth
v. Abu-Jamal, 553 Pa. 485, 527, 720 A.2d 79, 99 (1998), cert. denied, 528
U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports
the PCRA court’s credibility resolutions, they are binding on this Court. Id.Appellant argues trial counsel’s failure to call Appellant to testify during
trial constitutes ineffective assistance of counsel. Appellant submits the court
did not conduct an oral colloquy on Appellant’s waiver of his right to testify.
Appellant contends he spoke to trial counsel during trial about testifying, but
she ignored his requests. Appellant maintains his testimony was necessary to
refute Victim’s testimony. Appellant concludes this Court should vacate his
judgment of sentence and remand the matter for a new trial. We disagree.
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). Under the
traditional analysis, to prevail on a claim of ineffective assistance of counsel,
a petitioner bears the burden to prove his claims by a preponderance of the
evidence. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007),
appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must
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demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable strategic basis for the asserted action or inaction; and (3) but
for the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. Id. See also
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). “A
reasonable probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.” Commonwealth v. Spotz,
624 Pa. 4, 34, 84 A.3d 294, 312 (2014) (quoting Commonwealth v. Ali, 608
Pa. 71, 86-87, 10 A.3d 282, 291 (2010)). “Where it is clear that a petitioner
has failed to meet any of the three, distinct prongs of the…test, the claim may
be disposed of on that basis alone, without a determination of whether the
other two prongs have been met.” Commonwealth v. Steele, 599 Pa. 341,
360, 961 A.2d 786, 797 (2008).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
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Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In [Kimball, supra], we held that a “criminal
defendant alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(some internal citations and quotation marks omitted).
“Where matters of strategy and tactics are concerned, counsel’s
assistance is deemed constitutionally effective if [she] chose a particular
course that had some reasonable basis designed to effectuate [her] client’s
interests.” Commonwealth v. Sneed, 616 Pa. 1, 19, 45 A.3d 1096, 1107
(2012).
A finding that a chosen strategy lacked a reasonable basis
is not warranted unless it can be concluded that an
alternative not chosen offered a potential for success
substantially greater than the course actually pursued. A
claim of ineffectiveness generally cannot succeed through
comparing, in hindsight, the trial strategy employed with
alternatives not pursued.
Id. at 19-20, 45 A.3d at 1107 (internal citations and quotation marks
omitted).
A defendant’s decision to testify on his own behalf is ultimately made by
the defendant after full consultation with counsel. Commonwealth v.
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Thomas, 783 A.2d 328, 334 (Pa.Super. 2001). “In order to support a claim
that counsel was ineffective for failing to call the appellant to the stand, [the
appellant] must demonstrate either that (1) counsel interfered with [her]
client’s freedom to testify, or (2) counsel gave specific advice so unreasonable
as to vitiate a knowing and intelligent decision by the client not to testify in
his own behalf.” Id. (quoting Commonwealth v. Preston, 613 A.2d 603,
605 (Pa.Super. 1992), appeal denied, 533 Pa. 658, 625 A.2d 1192 (1993))
(internal quotation marks omitted). An appellant must show specific incidents
of counsel’s impropriety to satisfy a claim of strategic error. Thomas, supra
at 334-35.
Instantly, the court convicted Appellant on September 19, 2014, of two
counts of stalking and one count of terroristic threats. Appellant did not testify
at trial, and the court did not conduct a colloquy regarding Appellant’s waiver
of his right to testify. Following his sentencing, Appellant timely filed a PCRA
petition in January 2015. After a complicated procedural history, on January
25, 2017, this Court vacated the PCRA court’s September 14, 2015 order
dismissing Appellant’s first PCRA petition and remanded for counsel to file an
amended petition or a Turner/Finley no-merit letter. On February 7, 2017,
the PCRA court granted Appellant’s motion to appoint new counsel. Current
counsel filed an amended PCRA petition on Appellant’s behalf on November
29, 2017, and argued trial counsel was ineffective for depriving Appellant of
his right to testify at trial. During a PCRA hearing on January 25, 2018,
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Appellant testified inconsistently regarding what conversations took place with
trial counsel about Appellant’s decision to testify. Conversely, trial counsel
testified that she advised Appellant of all of his rights; and Appellant did not
tell her that he wanted to testify at trial. At the conclusion of the hearing, the
PCRA court denied relief.
In response to Appellant’s contention, the PCRA court reasoned as
follows:
Upon a review of the record in this case, the [c]ourt finds
that [Appellant] was adequately advised by trial counsel of
[the] right to testify. The testimony at the Evidentiary
Hearing reveals that [trial counsel] and [Appellant]
discussed (1) the possibility of [Appellant] testifying on his
own behalf at the Non-Jury Trial and (2) the disadvantages
of him testifying. [Trial counsel] consistently and
unequivocally testified that she informed [Appellant] of such
rights, as she does with all of her clients, and [Appellant]
never expressed a desire to testify. To the contrary,
[Appellant’s] testimony was contradictory and inconsistent.
During the hearing, [Appellant] testified on direct-
examination and redirect that he did not have a full
conversation with [trial counsel] about wanting to testify at
trial; however, on cross-examination, he said that he did
request to testify and [trial counsel] ignored his request to
do so. As there is no benefit of a colloquy, the [c]ourt relies
on the evidence presented and the credibility of the
witnesses. It is the opinion of [the c]ourt that the evidence
presented clearly establishes that [trial counsel] fully and
adequately informed [Appellant] of all of his constitutional
rights and any advantages or disadvantages to testifying at
trial. This included the fact that [Appellant] was on
supervision with the Westmoreland County Adult Probation
and Parole Office for having committed nearly identical
offenses with the [same victim], and the fact that
[Appellant] would be susceptible to significant impeachment
or cross-examination based upon the facts of the case. The
[c]ourt finds that [trial counsel’s] conversations with
[Appellant] discussing all of the disadvantages to testifying
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at the Non-Jury Trial were reasonable. Further, there is no
credible evidence presented to establish that [Appellant]
requested to testify and [trial counsel] prevented him from
doing so.
(PCRA Court Opinion, filed March 16, 2018, at 5-6). The record supports the
PCRA court’s analysis and decision. See Sneed, supra; Abu-Jamal, supra;Turetsky, supra; Thomas, supra. Accordingly, we affirm.
Order affirmed.
President Judge Emeritus Bender joins this memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2019
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