Com. v. Wolf, P. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PAUL BENEDICT WOLF :
:
Appellant : No. 1033 MDA 2018
Appeal from the PCRA Order Entered June 11, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007563-2011
BEFORE: BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY BOWES, J. FILED SEPTEMBER 23, 2019
Paul Benedict Wolf appeals from the June 11, 2018 order that denied
his pro se request for relief under the Pennsylvania Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-45. We affirm.1
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1 Appellant filed an application for relief alleging bad faith by the
Commonwealth and seeking to quash its timely-filed brief because the
Commonwealth requested three separate thirty-day filing extensions and
failed to serve it on Appellant in compliance with Pa.R.A.P. 2185(a)(1).
Initially, we discern no bad faith in the Commonwealth’s requests, and
Appellant has not made any specific allegations of gamesmanship.
Furthermore, the Commonwealth attached a “Proof of Service” representing
that Appellant was contemporaneously served with a copy of the
Commonwealth’s brief via first-class mail. See Commonwealth’s brief at 90.
Our Prothonotary thereafter forwarded a copy of the Commonwealth’s brief to
Appellant. Even assuming, arguendo, that Appellant is correct in alleging a
failure of service, the Pennsylvania Rules of Appellate Procedure do not
provide for quashing a brief for a failure in service. Pursuant to Pa.R.A.P.
2188, “[i]f an appellee fails to file his brief within the time prescribed by these
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* Former Justice specially assigned to the Superior Court.
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This Court previously summarized the underlying facts of this case as
follows:
On October 31, 2011, the Hanover Borough Police Department
was dispatched to 312 East Middle Street in Hanover Borough for
a report of shots fired and an individual holding a gun to his head.
Anthony Hippensteel testified he lived in the same apartment
building as [Appellant]. On the night of the incident, Hippensteel
went over to [Appellant’s] apartment and saw [Appellant], holding
a sawed-off [shotgun] underneath his chin, and counting, “1, 2,
3.” Hippensteel stated [Appellant] then took the gun from under
his chin and fired it at the ceiling.
Upon the officer’s arrival at the scene, they came into contact with
Amanda Bowen, Hippensteel’s live-in girlfriend, who indicated that
[Appellant] was in his apartment holding a sawed-off shotgun to
his head and which he had previously fired into the ceiling. Bowen
provided [Appellant’s] cell phone number to Sergeant Joseph J.
Bunty, Jr. Sergeant Bunty testified he called [Appellant] and
asked him to step outside, and [Appellant] complied with his
request.
Upon leaving the building, [Appellant], unarmed at the time, was
handcuffed and patted down for officer safety. After [Appellant]
was taken into custody for detainment purposes while the police
attempted to find the missing shotgun, [Appellant] suggested he
and the police enter his apartment, because he did not want to be
seen talking to them. Officer [Gerald] Aumen and others removed
the keys to the residence from [Appellant’s] pocket and opened
the door. The officer also indicated there was concern that
Hippensteel may have still been in the apartment somewhere
based on a statement by Bowen.
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rules, or within the time as extended, he will not be heard at oral argument
except by permission of the court.” This remedy is inapplicable here because
the instant PCRA appeal is not subject to oral argument. See Superior Court
O.P. 36(A), 210 Pa. Code § 65.36(A) (“All post-conviction hearing cases shall
be submitted on the briefs and record unless otherwise directed by the Court
upon its own motion or upon application of a party.”). Accordingly, we deny
Appellant’s application for relief.
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After entering the apartment, Officer [Aumen] testified he
observed fresh damage to the ceiling and a hole. Officer [Aumen]
read [Appellant] his Miranda[2] rights, which he waived. Officer
[Aumen] also observed 12-gauge [shotgun] shells and two pipes
in plain view, which the officer believed to be drug paraphernalia.
[Officer Aumen] stated he asked [Appellant] to fill out and sign a
consent-to-search form, which [Appellant] declined to do.
The police then obtained a search warrant. Police Officer Marci
Fureman testified that she spoken with Bowen regarding any
weapons that [Appellant] may have had and Bowen described
several hiding places. One of those places was a trashcan in the
rear of the residence, where Officer Fureman found a spent
cartridge from a shotgun. A sawed-off shotgun was also retrieved
under a loose board in [Appellant’s] kitchen.
[Appellant] told Officer [Aumen] he owed a lot of people money
and that a friend had dropped the gun off for him. [Appellant]
admitted he was not permitted to possess a firearm. Hippensteel
testified that two or three days earlier, he was present when a
person named Alan came over to [Appellant’s] apartment, pointed
a gun at [Appellant], and threatened to kill him.
Commonwealth v. Wolf, 134 A.3d 106 (Pa.Super. 2015) (unpublished
memorandum at *2-*4) (internal citations and footnotes omitted) (“Wolf I”).
From June 12 through June 14, 2013, the trial court held a jury trial. At
the conclusion of the trial, Appellant was convicted of: (1) person not to
possess, use, manufacture, control, sell or transfer firearms (“Count 1”), 18
Pa.C.S. § 6105(a)(1); (2) prohibited offensive weapons (“Count 2”), 18
Pa.C.S. § 908(a); and (3) possession of drug paraphernalia (“Count 3”), 35
P.S. § 780-113(a)(32). On February 21, 2014, the trial court imposed
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2 See Miranda v. Arizona, 384 U.S. 436 (1966).
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concurrent terms of five to ten years of imprisonment on Count 1, one to two
years imprisonment on Count 2, and six to twelve months imprisonment on
Count 3.
On October 23, 2015, this Court affirmed Appellant’s judgment of
sentence. See Wolf I, supra. Thereafter, our Supreme Court denied
Appellant’s petition for leave to file a petition for allowance of appeal, nunc
pro tunc. See Commonwealth v. Wolf, No. 111 MM 2016 (Pa. 2016)
(order). The PCRA court denied Appellant’s pro se first PCRA petition, but on
May 17, 2017, this Court vacated that order and remanded the case. See
Commonwealth v. Wolf, 170 A.3d 1230 (Pa.Super. 2017) (unpublished
memorandum at *4-*5) (“Wolf II”). Specifically, we noted that the PCRA
court had neglected to appoint counsel to represent Appellant pursuant to
Pa.R.Crim.P. 904 or, alternatively, to convene a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998). See Wolf II,
supra (unpublished memorandum at *4) (“As a first-time PCRA petitioner,
upon a showing of indigence, [Appellant] is entitled to the appointment of
counsel to represent him throughout the post-conviction collateral
proceedings, including any appeal from the disposition of his first PCRA
petition.”).
On June 5, 2017, the PCRA court appointed Jonelle Harter Eshbach,
Esquire to represent Appellant with respect to his PCRA petition. However, on
March 26, 2018, Appellant filed a pro se petition titled “Notice of Ineffective
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Assistance of Counsel,” which was docketed as a “Post-Conviction Relief Act
Petition” requesting the appointment of new PCRA counsel. See PCRA Court
Opinion, 9/18/18, at 8-9. On April 18, 2018, Attorney Eshbach filed a petition
and sent a “no-merit” letter stating her conclusion that Appellant’s PCRA
claims were meritless and requesting leave to withdraw as PCRA counsel
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). A hearing was
held on May 1, 2018 to collectively address both Appellant’s request for new
PCRA counsel and Attorney Eshbach’s submission under Turner/Finley, at
which Appellant was present. The PCRA court thereafter filed notice of its
intent to dismiss Appellant’s PCRA petition without further proceedings
pursuant to Pa.R.Crim.P. 907(2), stating its agreement with the arguments
set forth in Attorney Eshbach’s Turner/Finley submissions. The PCRA court
provided Appellant twenty days in which to file objections, after which the
PCRA court advised him that his petition would be dismissed.3
On May 29, 2018, Appellant prematurely filed a notice of appeal from
the PCRA court’s May 18, 2018 notice. On June 11, 2018, the PCRA court
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3 Appellant has not challenged the adequacy of Attorney Eshbach’s no-merit
letter. Consequently, we will not review the Turner/Finley practice in this
case. See Commonwealth v. Pitts, 981 A.2d 875, 880 (Pa. 2009) (holding
it is error to address the adequacy of Turner/Finley submissions where
“[n]either party raised the issue of the adequacy of PCRA counsel’s no-merit
letter”).
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entered a final order denying Appellant’s requested relief and dismissing
Appellant’s PCRA petition. Two days later, the PCRA court granted Attorney
Eshbach’s request to withdraw as PCRA counsel. On June 22, 2018, Appellant
filed a second notice of appeal from the PCRA court’s June 11, 2018 order.4
Appellant timely filed a pro se concise statement pursuant to Pa.R.A.P.
1925(b) raising thirty-five issues. On September 18, 2018, the PCRA court
filed an opinion pursuant to Pa.R.A.P. 1925(a), discussing the issues raised by
Appellant concluding that all of Appellant’s claims were either waived or
meritless. See PCRA Court Opinion, 9/18/18, at 10-23.
We discern that Appellant’s issues actually encompass six overall claims:
(1) whether the evidence adduced at trial was sufficient to prove the elements
of the offenses beyond a reasonable doubt; (2) whether the jury’s verdict was
against the greater weight of the evidence adduced at trial; (3) whether the
trial court erred in denying Appellant’s pre-trial omnibus motion; (4) whether
a number of general improprieties occurred during the trial; (5) whether
Appellant’s rights have been violated under the U.S. Constitution and/or the
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4 Appellant’s filing of serial notices of appeal resulted in the docketing of
duplicate PCRA appeals with respect to both Appellant’s premature notice of
appeal (962 MDA 2018) and this timely-filed appeal (1033 MDA 2018). On
March 28, 2019, we dismissed Appellant’s first appeal as redundant. See
Commonwealth v. Wolf, No. 962 MDA 2018, at *2 (Pa.Super. March 28,
2019) (judgment order) (citing Neidert v. Charlie, 143 A.3d 384, 387 n.3
(Pa.Super. 2016) (dismissing premature and duplicative appeal)).
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Pennsylvania Constitution; and (6) whether trial counsel, post-sentence
counsel and/or direct appellate counsel rendered ineffective assistance.5
Our applicable standard and scope of review are both well-established
under Pennsylvania law: “In PCRA proceedings, an appellate court’s scope of
review is limited by the PCRA’s parameters; since most PCRA appeals involve
mixed questions of fact and law, the standard of review is whether the PCRA
court’s findings are supported by the record and free of legal error.” See
Pitts, supra at 878. In particular, there is a discrete class of claims that are
properly cognizable under the PCRA, which is statutorily limited to: (1) a
recognized violation of either the U.S. Constitution or the Pennsylvania
Constitution that “so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place;” (2)
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5 Overall, the “Statement of Questions Involved” that appears in Appellant’s
brief differs significantly and substantially from the issues set forth in
Appellant’s Rule 1925(b) concise statement. Furthermore, Appellant’s
drafting flagrantly violates the requirement set forth at Pa.R.A.P. 2116 that
“[t]he statement of the questions involved must state concisely the issues to
be resolved, expressed in the terms and circumstances of the case but
without unnecessary detail.” Pa.R.A.P. 2116(a) (emphasis added). As a
result of the clear and concise treatment of these issues by the PCRA court,
we decline to find outright waiver as our appellate review has not been
hampered by Appellant’s verbosity and variation. See Commonwealth v.
Bell, 476 A.2d 439, 443 (Pa.Super. 1984) (“While we condemn such a flagrant
violation of that rule, we will nonetheless address the numerous issues raised
here.”). To the extent that our categorization of these claims differs from the
PCRA’s court treatment of the same issues, we also note that we are not bound
by the PCRA court’s rationale, and may affirm the denial of post-conviction
relief on any correct basis. See Commonwealth v. Beck, 848 A.2d 987, 991
n.8 (Pa.Super. 2004).
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ineffective assistance of counsel that “so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place;” (3) an unlawfully-induced guilty plea; (4) improper government
obstruction of a petitioner’s appellate rights; (5) the unavailability of
exculpatory evidence at the time of trial that has subsequently become
available and which “would have changed the outcome of the trial if it had
been introduced;” (6) the imposition of a sentence greater than the lawful
maximum; and (7) improper jurisdiction. See 42 Pa.C.S.
§ 9543(a)(2). Furthermore, allegations of error advanced under the PCRA
must not have been either previously litigated or otherwise waived by the
petitioner. See 42 Pa.C.S. §§ 9543(3), 9544(a)(2), (b). A claim under the
PCRA is considered to have been “previously litigated” if “the highest appellate
court in which the petitioner could have had review as a matter of right has
ruled on the merits of the issue” or if “it has been raised and decided in a
proceeding collaterally attacking the conviction or sentence.” See 42 Pa.C.S.
§§ 9544(a)(2)-(3). Waiver results when “the petitioner could have raised it
but failed to do so before trial, at trial, during unitary review, on appeal or in
a prior state postconviction proceeding.” See 42 Pa.C.S. § 9544(b). Finally,
“strict adherence to the statutory language of the PCRA is required.”
Commonwealth v. Judge, 797 A.2d 250, 257 (Pa. 2002).
At the outset, we observe that Appellant’s first four sets of claims are
either waived or previously litigated under the PCRA. In his first allegations
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of error, Appellant claims that the Commonwealth did not adduce sufficient
evidence to demonstrate that Appellant actually possessed or had control over
the shotgun at-issue in this case. See Appellant’s brief at 10-11, 14. We note
that “an appellant may not raise allegations of error in an appeal from the
denial of PCRA relief as if he were presenting the claims on direct appeal.”
Commonwealth v. Price, 876 A.2d 988, 995 (Pa.Super. 2005). Any
challenge to the sufficiency of the evidence adduced by the Commonwealth
was fully available to Appellant during his direct appeal and, consequently,
Appellant has waived this claim by failing to adequately raise it. See
Commonwealth v. Bell, 706 A.2d 855, 861 (Pa.Super. 1998) (holding that
sufficiency of the evidence claims are not cognizable under the PCRA); see
also Price, supra at 995 (same). A review of the record from Appellant’s
direct appeal reveals that Appellant advanced (and then subsequently
withdrew) a challenge to the sufficiency of the evidence during this Court’s
initial review of his case. See Wolf I, supra (unpublished memorandum at
*14 n.7). Thus, we will not address the merits of Appellant’s sufficiency claims
as they have been waived. See 42 Pa.C.S. § 9544(b).
Appellant has similarly raised a multitude of issues that are properly
recognized as challenges to the weight of the evidence, primarily impugning
under various theories the credibility of the witnesses presented by the
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Commonwealth, including Officer Auman,6 Amanda Bowen, Anthony
Hippensteel, and Brenda Treadway.7 See Appellant’s brief at 6-8, 10, 13-15,
17, 19-20, 22, 24. As above, these claims are either previously litigated
pursuant to § 9544(a) or waived under § 9544(b). In relevant part,
arguments aimed at the credibility of these witnesses and the internal
consistency of their respective testimonies are well-recognized under
Pennsylvania law as challenges to the weight of evidence. See
Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa.Super. 2014) (“An argument
regarding the credibility of a witness’[] testimony goes to the weight of the
evidence, not the sufficiency of the evidence.”); see also Commonwealth
v. Trinidad, 96 A.3d 1031, 1038 (Pa.Super. 2014) (“[V]ariances in testimony
go to the credibility of the witnesses . . . .”). Appellant also previously
advanced a challenge to the weight of the evidence during his direct appeal.
See Wolf I, supra (unpublished memorandum at *12-*13). This Court
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6 Appellant has devoted significant space to claiming that Officer Auman did
not adequately preserve the integrity of the shotgun seized from Appellant’s
residence, and that the police failed to perform an exhaustive battery of
forensic tests on the firearm. Even assuming, arguendo, that Appellant’s
claims are true, neither is actionable as presented. See Commonwealth v.
Gibson, 951 A.2d 1110, 1140 (Pa. 2008) (holding that alleged failures “to
preserve potentially useful evidence” or “perform specific forensic tests” do
not raise constitutional concerns absence a demonstration of bad faith)
(quoting Arizona v. Youngblood, 488 U.S. 51, 58-59 (1988)).
7 Brenda Treadway is a Commonwealth witness who testified that she
witnessed Appellant in possession of a shotgun on the same day that he was
arrested in connection with this case. See N.T. Trial, 6/12/13, at 181-96.
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already rejected those arguments, concluding that “we may not reweigh the
evidence and substitute our judgment for the trial court’s decision.” Id. at 14
(citing Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013)). As with
Appellant’s arguments regarding sufficiency, Appellant has already litigated
(or had the opportunity to litigate) his claims challenging the weight of the
evidence in this case. Although Appellant has presented “new” arguments
from those presented on direct appeal, these claims were nonetheless fully
available during Appellant’s post-trial motions and direct appeal.
Consequently, such claims are not cognizable under the PCRA. See Price,
supra at 995. Thus, Appellant’s challenges to the weight of the evidence are
either previously litigated, or waived for failure to previously raise them in the
trial court or on direct appeal. Accord with 42 Pa.C.S. §§ 9544(a)(2), (b).
Appellant has also advanced a number of claims that attempt to re-
litigate issues raised (or which should have been raised) in Appellant’s pre-
trial motions practice before the trial court. In the briefest terms possible,
Appellant alleges that his arrest was illegal because the officers of the Hanover
Borough Police Department possessed insufficient probable cause to detain
him. See Appellant’s brief at 15-22. Interwoven throughout this discussion
are related, but tangential, claims that evidence observed and seized from
Appellant’s residence should have been suppressed under various theories,
including a lack of exigent circumstances, such that police officers should not
have been present in Appellant’s residence and alleged breakdowns in the
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chain of custody. Id. Once again, we note that these suppression issues were
already raised by Appellant during his direct appeal to this Court, wherein they
were rejected. See Wolf I, supra (unpublished memorandum at *5-*12).
These issues have thus either been previously litigated or are waived under
the PCRA. Accord with 42 Pa.C.S. §§ 9544(a)(2), (b).
Appellant also alleges that the trial court demonstrated bias by offering
his pair of reading glasses to Brenda Treadway during her testimony and
offering Amanda Bowen the courtesy of transportation to retrieve her
prescription medication. See Appellant’s brief at 13; see also N.T. Trial,
6/12/13, at 126-28, 195-96. We observe nothing questionable in the trial
court’s expression of basic decency described above. Offering a witness with
vision problems a pair of reading glasses or offering to help a witness secure
access to their prescription medication seem like indicators of a solicitous
jurist, as opposed to a biased one. It is also worth noting that both witnesses
declined these offers from the trial court. See N.T. Trial, 6/12/13, at 126-28,
195-96. From a legal standpoint, it is clear from the record before us that
Appellant did not advance any contemporaneous objection or request for
recusal at the time these statements were made, or prior to the rendering of
a verdict. As such, this issue has been waived as it relates to Appellant’s trial.8
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8 Separately, Appellant’s case was re-assigned to the same jurist, then acting
as the PCRA court upon remand from this Court. See Wolf II, supra. Based
upon a complaint that Appellant had filed against this jurist in the Judicial
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See Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority,
489 A.2d 1291, 1300 (Pa. 1985) (“Once the trial is completed with the entry
of a verdict, a party is deemed to have waived his right to have a judge
disqualified, and if he has waived that issue, he cannot be heard to complain
following an unfavorable result.”). Moreover, Appellant has similarly waived
this issue for the purposes of his PCRA petition by failing to raise it before the
trial court. See 42 Pa.C.S. § 9544(b).
Next, Appellant raises the specter of two alleged constitutional
violations. Under his first claim, Appellant invokes two criminal prosecutions
that are unrelated to the present case and alleges that the Commonwealth
has violated the concept of “double jeopardy” under the Fifth Amendment to
the U.S. Constitution and Art I, § 10 of the Pennsylvania Constitution. See
Appellant’s brief at 23. The legal standards attendant to this inquiry are well-
established under Pennsylvania law:
The Pennsylvania Constitution’s double jeopardy clause has been
interpreted as “coextensive” with the federal Constitution’s Fifth
Amendment. Commonwealth v. Ball, 146 A.3d 755, 763 (Pa.
2016). The Pennsylvania Supreme Court applies the “same-
elements” test articulated in Blockburger v. United States, 284
U.S. 299 (1932); Commonwealth v. Yerby, 679 A.2d 217, 219
(Pa. 1996). Under the same-elements test, each offense or
subsequent prosecution must require proof of at least one fact
that the other offense or prosecution did not. Blockburger,
supra at 304. Thus, the double jeopardy clause protects
defendants from subsequent prosecutions for the same act.
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Conduct Board, Appellant sought the recusal of the jurist, which was ultimately
granted. See PCRA Court Opinion, 9/18/18, at 8.
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Commonwealth v. Kolovich, 170 A.3d 520, 526 (Pa.Super. 2017). In
relevant part, the cases highlighted by the Appellant appear to constitute
independent proceedings stemming from a separate set of events concerning
the theft of scrap metal and the certified record does not support the assertion
that this matter was ever actually consolidated with those cases. See
Commonwealth v. Wolf, 156 A.3d 335 (Pa.Super. 2016) (unpublished
memorandum at *2). Even assuming, arguendo, that those separate
prosecutions did somehow relate to the same occurrences at issue in this
case, Appellant was prosecuted for wholly separate crimes, including theft by
unlawful taking, 18 Pa.C.S. § 3921, defiant trespass, 18 Pa.C.S. § 3503(b),
theft by deception, 18 Pa.C.S. § 3922, and receiving stolen property, 18
Pa.C.S. § 3925. Id. Comparing those offenses with this case reveals that
there are no similar elements of proof or common facts. Compare 18 Pa.C.S.
§§ 6105(a)(1), 908(a), 35 P.S. § 780-113(a)(32) with 18 Pa.C.S. §§ 3503(b),
3921-22, 3925. Accordingly, Appellant’s double-jeopardy claims necessarily
fail. See Kolovich, supra at 526.
Turning to Appellant’s second constitutional issue, he baldly claims that
his sentence is illegal pursuant to the U.S. Supreme Court’s holding in Alleyne
v. United States, 570 U.S. 99, 103 (2013) (“[A]ny fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury.”).
Instantly, Appellant was not subjected to any mandatory minimum sentence
as a result of his conviction in this case. See Sentence Order, 2/21/14, at 1.
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As such, the holding in Alleyne is inapposite to Appellant’s case.
Furthermore, Appellant has failed to address any meaningful argument
regarding Alleyne in his brief to this Court. As such, “[w]e must deem an
issue abandoned where it has been identified on appeal but not properly
developed in the appellant’s brief.” Commonwealth v. Rodgers, 605 A.2d
1228, 1239 (Pa.Super. 1992).
Finally, Appellant’s remaining issues address claims that trial and direct
appellate counsel were ineffective under numerous theories. We presume that
counsel is effective, and Appellant bears the burden of proving otherwise. See
Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). In
Pennsylvania, the effectiveness of counsel is assessed under the rubric set
forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984). See
Commonwealth v. Jones, 815 A.2d 598, 611 (Pa. 2002). In order to prevail
under Strickland, Appellant must demonstrate that: (1) the underlying claim
has arguable merit; (2) no reasonable basis existed for counsel’s actions or
failure to act; and (3) the defendant has shown that he suffered prejudice as
a result of counsel’s lapse (i.e., there is a reasonable probability that the result
of the proceeding would have been different but for counsel’s oversight). See
Bennett, supra at 1195. If Appellant’s claim of ineffectiveness fails under
any element of this test, we may dispose of it on the basis of that prong alone.
See Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998).
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The lion’s share of Appellant’s ineffectiveness claims relate to trial
counsel, including claims that he was allegedly ineffective for: (1) not
communicating a plea offer from the Commonwealth to Appellant; (2) being
under the influence of alcohol during the trial; (3) conceding Appellant’s guilt
to the jury during his closing arguments; (4) failing to call various witnesses
requested by Appellant; (5) stipulating to the testimony of Amanda Bowen
and not challenging her competency; (6) pursuing a duress defense regarding
Appellant’s possession of the shotgun; and (7) generally failing to properly
prepare for trial;. See Appellant’s brief at VIII, 13, 24-25.
The first two of these claims are readily dismissed, because there is no
evidence indicating that these alleged misfeasances actually took place.
Belying his claims regarding the Commonwealth’s plea offer, Appellant was
actually present in the courtroom when the Commonwealth’s plea offer was
being discussed. See N.T. Trial, 6/12/13, at 136-37. Furthermore, there is
no evidence whatsoever to support the scurrilous allegation that trial counsel
was intoxicated at any point during the trial. If Appellant suspected as much,
he should have immediately lodged a formal objection with the trial court.
Regardless, Appellant has failed to properly articulate “any instance in which
counsel’s [alleged] drinking resulted in ineffective assistance.”
Commonwealth v. Burton, 417 A.2d 611, 614-15 (Pa. 1980). Accordingly,
both of these claims lack arguable merit under the framework of Strickland.
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Appellant’s next issue is, at least, factually accurate to the extent that
trial counsel did concede Appellant’s guilt to the charge of possessing drug
paraphernalia: “[A]t the outset I’m going to tell you, he’s guilty of possession
of drug paraphernalia. Guilty of it. I’m not contesting that. I’m not going to
stand before you and make up something about these pipes. They were
there.” N.T. Trial, 6/12/13, at 290. However, Appellant has failed to
demonstrate either the lack of a reasonable basis for counsel’s decision or a
likelihood that the outcome of Appellant’s trial would have been different if
counsel had not offered this limited concession to the jury. The evidence
regarding Appellant’s possession of two smoking pipes (and other drug-related
paraphernalia) was overwhelming when it was discovered in plain view by the
Hanover Borough Police Department and respectively tested positive for
marijuana and cocaine residue. See N.T. Trial, 6/12/13, at 5, 215-16, 224-
28, 231-34, 237, 243-47, 253-54. This Court has previously held that there
is no ineffectiveness where any rebuttal offered by counsel would be
“insignificant in view of the overwhelming evidence of Appellant’s guilt.”
Commonwealth v. DeHart, 650 A.2d 38, 46 (Pa. 1994), abrogated on
different grounds, Commonwealth v. Keaton, 45 A.3d 1050 (Pa. 2012).
Tellingly, Appellant has not enumerated any avenue by which trial counsel
could have reasonably challenged Appellant’s guilt regarding possession of
drug paraphernalia and still maintained his credibility with the jury in
challenging the more-serious charges related to Appellant’s possession of the
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shotgun. See DeHart, supra at 44 (“[T]rial counsel’s actions can certainly
be considered reasonable in view of the circumstances of the case. In order
to maintain his credibility and not antagonize the jury, counsel may have
conceded the [lesser] charge in an effort to defend against the other more
serious charges . . . .”). Finally, trial counsel made this limited concession of
guilt during his closing statement, thereby ensuring that the Commonwealth’s
case was still subject to “meaningful adversarial testing.” See
Commonwealth v. Cousin, 888 A.2d 710, 720 (Pa. 2005) (holding that a
limited concession of guilt during closing arguments “is qualitatively different
from a complete failure to subject the state’s case to adversarial testing”),
abrogated on different grounds, Commonwealth v. Roebuck, 32 A.3d 613
(Pa. 2011). Based on the discussion above, this claim of ineffectiveness
similarly fails under Strickland.
Appellant also asserts that trial counsel was ineffective for failing to call
a number of witnesses at Appellant’s behest. In order to establish that counsel
was ineffective for failing to call a particular witness, Appellant must
demonstrate that: (1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should have known of, the
existence of the witness; (4) the witness was willing to testify for the defense;
and (5) the absence of the testimony of the witness was so prejudicial as to
have denied the defendant a fair trial. See Commonwealth v. Washington,
927 A.2d 586, 599 (Pa. 2007). Instantly, Appellant has failed to address any
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cogent argument concerning these factors. As such, we consider this issue to
be waived based on Appellant’s failure to adequately develop a discussion
appropriately addressed to the identities and status of these purportedly
overlooked witnesses in his brief. See Rodgers, supra at 1239.
Appellant next argues that trial counsel was ineffective for stipulating to
the testimony of Amanda Bowen during the trial, and not challenging her
competency to testify. In relevant part, both Appellant and the
Commonwealth stipulated that Amanda Bowen would have testified that she
advised and showed members of the Hanover Borough Police Department
where Appellant regularly hid his shotgun. N.T. Trial, 6/12/13, at 149-50.
Appellant asserts that trial counsel should have challenged Amanda Bowen’s
competency to testify based on her diagnosis of schizophrenia, for which she
takes medication. Id. at 123-25.
As a general matter, Pa.R.E. 601(a) provides that “[e]very person is
competent to be a witness except as otherwise provided by statute or in these
rules.” With particular reference to criminal proceedings, “all persons” are
considered “fully competent witnesses in any criminal proceeding before any
tribunal” under Pennsylvania law. See 42 Pa.C.S. § 5911. Appellant seems
to believe that Amanda Bowen is incompetent, per se, merely as a result of
her aforementioned diagnosis, but “[i]ncompetency does not follow from the
fact that the witness is insane or mentally ill.” Commonwealth v. Ware,
329 A.2d 258, 267 (Pa. 1974). Relying on Ware, this Court has held that
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testimony from “witnesses who are suspected of suffering with mental illness”
is still considered competent “unless he or she is unable to give a correct
account of the matters at issue.” Commonwealth v. Fulton, 465 A.2d 650,
657 (Pa. 1983). Instantly, the trial court held a preliminary hearing at which
Amanda Bowen testified, and confirmed that she was properly medicated and
lucid during the time periods relevant to her testimony. See N.T. Trial,
6/12/13, at 126. By contrast, Appellant has failed to articulate exactly how
Amanda Bowen’s schizophrenia rendered her unable to accurately and
truthfully testify. Therefore, Appellant has failed to demonstrate arguable
merit under Strickland.
Appellant additionally contends that trial counsel was ineffective for
advancing a duress defense as to the charges that related to possession of
the shotgun in this case. In relevant part, trial counsel argued at trial that
Appellant possessed a shotgun under duress from a largely unidentified person
known only by the name “Alan.” Specifically, Appellant maintained that Alan
forced him to take possession of the shotgun under threat of death. See N.T.
Trial, 6/12/13, at 168-72, 257-59, 291-97. In response to trial counsel’s
assertion of a duress defense, Appellant alleges that “the court determined
[it] to be of no meritorious value, since said actions involving a drug
transaction[] cannot be considered as a duress defense.” Appellant’s brief at
VIII. However, the record does not support Appellant’s factual predicate. The
trial court did not reject Appellant’s defense of duress as a matter of law, but
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provided extensive spoken and written instructions regarding this defense.
See N.T. Trial, 6/12/13, at 314-15, 329-32. The defense was submitted to
the jury, which apparently did not credit it. As such, this claim also lacks
arguable merit under Strickland.
In his last claim respecting trial counsel, Appellant makes a general
assertion that counsel failed to sufficiently prepare for trial. Beyond an
unadorned assertion in his “Statement of the Questions Involved,” Appellant
has not developed any relevant arguments or discussions regarding this claim.
As such, it is waived. See Rodgers, supra at 1239.
Appellant also raises a number of allegations regarding sentencing and
direct appeal counsel and subsequent direct appeal counsel.9 With respect to
direct appeal counsel, Appellant alleges that he was ineffective for refusing to
challenge the legality of Appellant’s arrest. See Appellant’s brief at 2.
However, a review of the relevant documents indicates that direct appeal
counsel did, in fact, challenge the trial court’s denial of Appellant’s “Omnibus
Pretrial Motion,” which contained a challenge to Appellant’s arrest. See
Appellant’s Rule 1925(b) Statement, 4/10/14, at ¶ C. Furthermore, this Court
fully adjudicated that precise claim during Appellant’s direct appeal. See Wolf
____________________________________________
9 On August 18, 2014, direct appeal counsel was replaced by subsequent
direct appeal counsel at the specific request of Appellant.
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I, supra (unpublished memorandum at *5-*12). As such, this allegation of
ineffectiveness lacks arguable merit under Strickland.
Appellant’s last issue respecting ineffectiveness alleges that subsequent
direct appeal counsel failed to inform Appellant that his direct appeal had been
denied until after the time for seeking a discretionary appeal before the
Supreme Court of Pennsylvania had expired. See Appellant’s brief at IX, 2,
23. This issue was not properly enumerated in Appellant’s Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, and is therefore waived.
See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or
not raised in accordance with the provisions of this paragraph . . . are
waived.”); see also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.
2005).
For all of the foregoing reasons, we conclude that the PCRA court’s
denial of Appellant’s petition is legally sound and supported by the record.
Accordingly, we affirm.
Application for relief denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/23/2019
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