Com. v. Moran, P. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PATRICK REED MORAN, :
:
Appellant : No. 809 WDA 2014
Appeal from the PCRA Order April 23, 2014,
in the Court of Common Pleas of Potter County,
Criminal Division at No(s): CP-53-CR-0000148-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 16, 2014
Patrick Reed Moran (Appellant) appeals from the order entered on
April 1, 2014, denying his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The background underlying this matter can be summarized in the
following manner.
On December 10, 2012, a jury convicted Appellant of possession
of a firearm prohibited. The conviction stemmed from
Appellant’s possession of a shotgun while on parole. On
February 8, 2013, the trial court sentenced Appellant to forty-
eight (48) to one-hundred-twenty (120) months’ imprisonment.
Appellant timely filed a notice of appeal on February 25, 2013. …
Commonwealth v. Moran, 93 A.3d 496 (Pa. Super. 2013) (unpublished
memorandum at 1). “[On direct appeal,] Appellant argue[d] the
Commonwealth improperly elicited prejudicial testimony concerning
* Retired Senior Judge assigned to the Superior Court.
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Appellant’s possession of a firearm, his threats to injure and/or kill his
estranged wife, and his drug use. …” Id. at 2.
In its memorandum opinion affirming Appellant’s judgment of
sentence, this Court reproduced the complained-of testimony. The Court
then initially stated, “After a thorough examination of these exchanges, we
conclude the testimony regarding Appellant’s drug use and threats to his
estranged wife established context for Appellant’s possession of the
shotgun.” Id. at 7. The Court, however, ultimately determined that
Appellant waived his issue because he did not object to the testimony at
trial. Id.
Appellant did not petition our Supreme Court for allowance of appeal.
However, he did file timely a pro se PCRA petition. His counsel subsequently
filed a supplemental PCRA petition. The crux of Appellant’s claim was that
trial counsel was ineffective for failing to object to the testimony about which
he complained on direct appeal.
The PCRA court held a hearing regarding Appellant’s petition. On April
23, 2014, the court denied the petition, concluding that Appellant failed to
establish the prejudice prong of the ineffective-assistance-of-counsel
standard.1 Appellant timely filed a notice of appeal. The PCRA court
1
In the PCRA court’s opinion in support of its order, the court, at least to
some extent, conflated the prejudice prong of the ineffective-assistance-of-
counsel standard with a prejudice analysis under Pennsylvania Rule of
Evidence 403.
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directed Appellant to comply with Pa.R.A.P. 1925(b), and Appellant then filed
a Pa.R.A.P. 1925(b) statement.
In his brief to this Court, Appellant asks us to consider one question,
namely, “Must trial counsel object to prejudicial statements by the
prosecutor during a jury trial concerning threats to injure and/or kill
[Appellant’s] separated wife and [Appellant’s] drug usage, when [Appellant]
was never charged with these crimes?” Appellant’s Brief at 2.
In support of his issue, Appellant notes that, just prior to his trial, a
murder occurred in Potter County and that the murder “involved a firearm,
threats, and an ex-wife (the victim).” Id. at 7. Appellant argues,
[Trial counsel] did not object, nor request a mistrial, when
testimony was presented by the Commonwealth that referred to
[Appellant’s] usage of a firearm and threats to injure/or kill his
separated wife. This was particularly prejudicial as [Appellant]
was not charged with these alleged threats, but also the facts
were similar in the Potter County murder case[.]
Id. Appellant also complains that counsel failed to object to testimony
regarding his use of drugs. Appellant does not seem to challenge the
relevancy of the testimony regarding his drug use or threats to his estranged
wife; rather, he seems to suggest that the testimony was unfairly
prejudicial.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the court’s rulings are supported by the evidence of
record and free of legal error. Commonwealth v. Anderson, 995 A.2d
1184, 1189 (Pa. Super. 2010).
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Appellant’s issue involves a claim that his trial counsel rendered
ineffective assistance of counsel. “To establish ineffectiveness of counsel, a
PCRA petitioner must show the underlying claim has arguable merit,
counsel’s actions lacked any reasonable basis, and counsel’s actions
prejudiced the petitioner. Prejudice means that, absent counsel’s conduct,
there is a reasonable probability the outcome of the proceedings would have
been different.” Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa.
Super. 2013) (citations omitted).
At Appellant’s trial, the jury was charged with determining whether the
Commonwealth proved that Appellant violated 18 Pa.C.S. § 6105(a)(1),
which provides:
A person who has been convicted of an offense enumerated in
subsection (b), within or without this Commonwealth, regardless
of the length of sentence or whose conduct meets the criteria in
subsection (c) shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell,
transfer or manufacture a firearm in this Commonwealth.
Appellant stipulated that he had been convicted of an offense enumerated in
18 Pa.C.S. § 6105(b). Thus, in order to convict Appellant, the
Commonwealth simply had to prove that Appellant possessed, used,
controlled, sold, transferred, or manufactured a firearm.
The Commonwealth’s first witness at trial was Joshua Blass. According
to Blass, he purchased a shotgun from a store on May 14, 2012, and then
sold that gun to Appellant approximately two weeks later.
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The second witness to testify was Stacey Imler. Imler testified that
Appellant was a neighbor and friend. Imler’s family owns a camp in Tioga
County. Imler stated that Appellant and others were at that camp in late
May or early June of 2012.
Appellant highlights the following exchange between the prosecutor
and Imler:
Q. If you can recall what was [Appellant] doing [at the camp] at
that time?
A. We were up having a good time, had a [bonfire], we were
drinking, partying that was about it.
Q. And was [Appellant] drinking and partying with you guys?
A. He’s not a big drinker I believe he partook in the party.
Q. Any drugs?
A. Yes.
N.T., 12/10/2012, at 30-31.
Imler went on to testify that he observed Appellant holding a shotgun
at the camp. While Imler stated that Blass owned the gun, he also testified
that he asked Appellant why he purchased the gun. According to Imler, at
some point, Appellant said that “he takes his marriage vows very seriously
and to death do us part.” Id. at 33. Imler then stated that Appellant and
Appellant’s wife, Rebecca Carr, had broken up; so, Imler “warned [Carr] that
[Appellant] had a gun and [] also warned her about the vows to death do us
part.” Id. at 34. Imler further testified that, after he informed Carr of the
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gun at his camp, she and Matt Yoder retrieved it in order to keep Appellant
from getting the gun again.
On cross-examination, Imler admitted to using “alcohol, weed, [and]
bath salt” during the time Appellant was at his camp. Id. at 37. He also
believed Blass, who also was at the camp, may have used bath salt as well.
On redirect examination, Imler stated that he did not see Appellant use any
bath salt. Imler also stated,
Everybody knows [Appellant], knows that his marriage vows
were sacred and anyone that’s married that’s part of your vows
too to death do us part for anyone that’s married part of you
vows is to death do us part. He meant one thing or another it’s
still death do us part.
Id. at 40.
Ryan Rachiele testified next for the Commonwealth. The focus of his
testimony was that, in late May or early June of 2012, Appellant offered to
give him a shotgun. Rachiele asserted that he declined Appellant’s offer.
The Commonwealth then elicited testimony from Carr. Carr stated
that she and Appellant separated in May of 2012 due to Appellant’s anger
and abusiveness. She reported that, after she moved out of the couple’s
apartment, Imler informed her that Appellant had a shotgun. According to
Carr, at some point after speaking to Imler, she asked Appellant why he got
the gun; he stated, “You know why.” Id. at 58. The prosecutor asked Carr
if she knew what Appellant meant by that statement, and she responded,
“From conversations from before I left him, yeah, he said that I would get a
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bullet in the head before I would leave him and death, until death do us
part.” Id.
Carr further testified that, after her conversation with Appellant, she
and Matt Yoder went to Imler’s camp and retrieved the gun. The
Commonwealth also presented Yoder as a witness, and for the most part, he
corroborated Carr’s testimony.
Roger Probel, Carr’s step-father, testified for the Commonwealth. He
reported that Yoder gave him the shotgun and that he then gave the gun to
the chief of police in Galeton. The remainder of the testimony came from
the Galeton chief of police, a forensic evidence technician, and a firearm and
tool mark examiner.
We first will address Appellant’s claim that trial counsel was ineffective
for failing to object to Imler’s testimony regarding Appellant’s drug use. The
only testimony that arguably suggests that Appellant used any drugs was
Imler’s positive response to the prosecutor’s question, “Any drugs?” Id. at
31. The prosecutor did not specifically ask Imler if Appellant used drugs.
Furthermore, before he answered this ambiguous question, Imler stated that
Appellant was not a big drinker, and after he answered the question, Imler
testified that he did not see Appellant take any bath salt.
Thus, even if we assume arguendo that trial counsel should have
objected to this passing reference to drug use, we nonetheless conclude that
Appellant has not established the prejudice prong of the ineffective-
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assistance-of-counsel standard. Appellant has failed to convince us that,
had counsel successfully objected to the prosecutor’s question and Imler’s
answer, there is a reasonable probability that the outcome of his trial would
have been different.
We now will address Appellant’s claim that trial counsel was ineffective
for failing to object to testimony regarding his devotion to his marriage
vows, which could be construed as threats to Carr. Appellant seems to
suggest that trial counsel should have objected to this testimony on the
ground that its probative value was outweighed by the danger of causing
him unfair prejudice. We disagree.
Pennsylvania Rule of Evidence 403 provides that a “court may exclude
relevant evidence if its probative value is outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Pa.R.E. 403. “‘Unfair prejudice’ means a tendency to suggest
decision on an improper basis or divert the jury's attention away from its
duty of weighing the evidence impartially.” Commonwealth v. Wright,
961 A.2d 119, 151 (Pa. 2008) (citation omitted). Our Supreme Court has
explained that
[e]vidence will not be prohibited merely because it is harmful to
the defendant. Th[e Supreme] Court has stated that it is not
required to sanitize the trial to eliminate all unpleasant facts
from the jury’s consideration where those facts are relevant to
the issues at hand and form part of the history and natural
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development of the events and offenses for which the defendant
is charged.
Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (citation
omitted).
As we noted above, Appellant does not challenge the relevancy of the
evidence regarding the threats he made toward Carr. Furthermore,
evidence of those threats helped form the history and natural development
of the events and offenses for with Appellant was charged. Testimony
regarding those threats explained why Appellant purchased the gun, how
Carr knew about the gun, why she retrieved the gun, and why Probel turned
over the gun to the police. Given the nature and context of the testimony
regarding Appellant’s threats toward Carr, we are not persuaded that this
evidence had a tendency to suggest a decision on an improper basis or
diverted the jury’s attention away from its duty of weighing the evidence
impartially. We thus conclude that Appellant’s claim that counsel should
have objected to this testimony on the basis that it was unfairly prejudicial
lacks arguable merit.
For these reasons, we conclude that the PCRA court properly denied
Appellant’s PCRA petition. We, therefore, affirm the court’s order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2014
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