Com. v. Greenawalt, L. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LANCE PATRICK GREENAWALT, :
:
Appellant : No. 892 MDA 2019
Appeal from the PCRA Order Entered February 19, 2019
n the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000347-2011
BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 21, 2020
Lance Patrick Greenawalt (“Greenawalt”) appeals from the Order
denying his first Petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On April 30, 2006, Greenawalt broke into the home of Daniel Keys
(“Keys”) and assaulted Keys by throwing boiling water on his face and striking
him numerous times in the head, arms, and torso with a baseball bat. 1 As a
result of the attack, Keys suffered injuries to his eyes, lacerations to his head
that required 103 stitches, three broken fingers on each hand, a broken wrist,
broken hand, and burns to his head and the surrounding area. Keys only
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1Keys was not at his home when Greenawalt broke in. Greenawalt attacked
Keys when Keys returned home and entered through the front door.
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briefly saw his attacker, who was wearing a mask, and was unable to identify
him to police.
Pennsylvania State Police Trooper Benjamin Wilson (“Trooper Wilson”)
investigated Keys’s assault. On September 7, 2010, Trooper Wilson was at
Camp Hill State Correctional Institution and was informed by prison personnel
that Greenawalt, who was incarcerated there on unrelated convictions, had
been soliciting a fellow inmate, Timothy Bryce (“Bryce”), to commit murder
for Greenawalt. Trooper Wilson and Pennsylvania State Trooper Shaun Pugh
(“Trooper Pugh”) interviewed Bryce, who stated that Greenawalt had solicited
Bryce to murder John Lloyd (“Lloyd”) and Adams County Court of Common
Pleas Judge Michael George (“Judge George”). Lloyd is Keys’s brother. Judge
George had presided over Greenawalt’s previous criminal trial on unrelated
charges. Bryce also stated that Greenawalt had admitted to committing the
April 20, 2006, burglary of and assault on Keys.
After substantiating Bryce’s claims, Trooper Wilson filed with this Court
an Application for the interception of communications (the “Wiretap
Application”), in order to install a recording device in the prison cell shared by
Greenawalt and Bryce. This Court found that there was probable cause to
believe that communications would take place between Greenawalt and Bryce
regarding the planning and commission of illegal acts, and issued an Order
Authorizing Interception of Communications (the “Wiretap Order”).
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Between October 5, and November 24, 2010, Greenawalt and Bryce
engaged in several conversations relating to Greenawalt’s prior solicitations to
kill Judge George and Lloyd, and Greenawalt also solicited Bryce to murder
Keys. Trooper Wilson subsequently interviewed Greenawalt, and advised
Greenawalt that his incriminating statements had been recorded. Greenawalt
admitted to engaging in these conversations, but claimed that they were just
“jail house talk,” and not meant to be taken seriously.
Greenawalt was subsequently charged, in relevant part, with one count
each of attempt to commit criminal homicide, aggravated assault and
burglary, and three counts of criminal solicitation to commit criminal homicide.
Greenawalt filed an Omnibus Pretrial Motion, which contained, inter alia,
Motions to (1) suppress the incriminating statements made to Trooper Wilson;
(2) sever the three counts of criminal solicitation to commit criminal homicide
from the charges relating to Greenawalt’s assault of Keys; and (3) suppress
the recordings taken from the recording device that was planted in
Greenawalt’s prison cell. Following a hearing and the submission of briefs,
the trial court granted in part Greenawalt’s Motion to sever charges, and
denied the two Motions to suppress. The trial court severed the charge of
solicitation to commit homicide relating to Judge George from the remaining
charges.
On March 14, 2013, the Commonwealth and Greenawalt filed a
Stipulation, wherein they agreed that Bryce had been previously convicted of
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certain enumerated crimes, including obstruction of justice and false reports,
and that this evidence would be admissible at trial for crimen falsi purposes.
On March 15, 2013, Greenawalt filed a Motion in limine, seeking to prevent
Bryce from testifying at trial based on these crimes, which purportedly made
his testimony unreliable. On March 18, 2013, the trial court denied the Motion.
Following the two severed jury trials, Greenawalt was found guilty of
one count each of attempt to commit criminal homicide, aggravated assault,
criminal attempt to commit aggravated assault and burglary, and three counts
of solicitation to commit criminal homicide.2 Greenawalt was sentenced to an
aggregate term of 40 to 90 years in prison.3
This Court affirmed Greenawalt’s judgment of sentence. See
Commonwealth v. Greenawalt, 106 A.3d 176 (Pa. Super. 2014)
(unpublished memorandum).4 Greenawalt did not seek allowance of appeal
with the Pennsylvania Supreme Court.
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2 Greenawalt’s trial regarding the charge for criminal solicitation to commit
criminal homicide relating to Judge George occurred over a year after the trial
for the other charges.
3 Greenawalt was sentenced to serve 10 to 20 years in prison on the charge
for solicitation to commit criminal homicide relating to Judge George, and 30
to 70 years in prison on the remaining charges. The sentences were ordered
to run consecutively.
4Greenawalt filed his Notice of Appeal following his first trial, and he did not
appeal his judgment of sentence for his conviction of criminal solicitation to
commit criminal homicide relating to Judge George.
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On August 25, 2015, Greenawalt filed the instant timely PCRA Petition.
Greenawalt subsequently filed two Amended PCRA Petitions, with the second
Amended Petition being filed on June 28, 2017. Greenawalt claimed in his
second Amended Petition several allegations of ineffective assistance of
counsel, including the claims discussed herein, and trial counsel’s failure to
request a pre-sentence mental health examination. Following a hearing, the
PCRA court granted Greenawalt’s PCRA Petition on the claim regarding trial
counsel’s failure to request a pre-sentence mental health examination, and
denied his Petition in all other respects. The PCRA court vacated Greenawalt’s
judgment of sentence; ordered that he undergo a mental health examination;
and directed the preparation of a pre-sentence investigation report, to include
the results of Greenawalt’s mental health examination. Greenawalt filed a
timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
On appeal, Greenawalt presents the following questions for our review:
I. Whether the PCRA [c]ourt erred in denying [Greenawalt] relief
based upon [Greenawalt’s] claims that trial counsel was
ineffective by failing to file a motion to exclude and suppress the
[W]iretap [A]pplication used to intercept [Greenawalt’s] oral
communications pursuant to Pennsylvania’s Wiretapping and
Electronic Surveillance Control Act?
II. Whether the PCRA [c]ourt erred in denying [Greenawalt] relief
based on [Greenawalt’s] claim that trial counsel was ineffective by
failing to conduct a pretrial mental health examination of
[Greenawalt] to determine whether [Greenawalt] could form the
specific intent to commit the criminal acts of which he was
accused?
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III. Whether the PCRA [c]ourt erred in denying [Greenawalt] relief
based upon [Greenawalt’s] claim that trial counsel was ineffective
by failing to investigate and present character evidence at trial?
IV. Whether the PCRA [c]ourt erred in denying [Greenawalt] relief
based upon [Greenawalt]’s claim that trial counsel was ineffective
by failing to request severance of the crimes of violence that
prejudiced [Greenawalt] at trial by presenting evidence of
aggressive and assaultive behavior to the jury?
Brief for Appellant at 4.
“The standard of review of an order [denying] a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).
“The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Id. (citation omitted).
To prevail on a claim of ineffective assistance of counsel, a petitioner
must plead and prove by a preponderance of the evidence that counsel’s
ineffectiveness “so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A.
§ 9543(a)(2)(ii). Specifically, a petitioner must establish that “the underlying
claim has arguable merit; second, that counsel had no reasonable basis for
his action or inaction; and third, that [the a]ppellant was prejudiced.”
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014). “A
PCRA petitioner must address each of these prongs on appeal.”
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).
A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead, if
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a claim fails under any necessary element of the ineffectiveness
test, the court may proceed to that element first. Finally, counsel
cannot be deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014).
In his first claim, Greenawalt alleges that his trial counsel, Michael D.
Rentschler, Esquire (“Attorney Rentschler”), was ineffective in failing to file a
motion to exclude the evidence obtained from the recording device. See Brief
for Appellant at 19-25. Greenawalt purports to challenge this Court’s Wiretap
Order under Section 5721.1(b)(2) of the Wiretap Act, see 18 Pa.C.S.A.
§§ 5701-5782. Greenawalt claims that the Wiretap Application and the
Affidavit of Probable Cause, which was attached thereto, were defective
because they did not disclose (1) Bryce’s criminal history; (2) the fact that the
Pennsylvania State Police had been investigating a claim that a third-party
had previously solicited Bryce to kill a state trooper; and (3) an indication as
to whether the personnel who intended to set up and use the recording device
were “B” certified. Id. at 20-25. Greenawalt argues that had Attorney
Rentschler filed a motion to suppress the evidence obtained from the recording
device on these grounds, the trial court would have likely suppressed the
evidence, and Greenawalt would have been acquitted. Id. at 25.
Section 5721.1 of the Wiretap Act provides that an
aggrieved party may move to exclude the contents of a wiretap or
evidence derived therefrom on six grounds. This creates a
situation where a Common Pleas judge can rule that a Superior
Court judge erred when determining that there was a legal basis
to authorize a wiretap. Section 5721.1 further provides that the
only judicial remedies and sanctions for non-constitutional
violations of the wiretap provisions are those exclusively found in
5721.1. The plain language of section 5721.1 limits the
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availability of suppression as a remedy for non-constitutional
violations to six grounds specifically enumerated.
Commonwealth v. Steward, 918 A.2d 758, 760 (Pa. Super. 2007) (citation
omitted).
Section 5721.1(b)(2) provides that a recording may be suppressed
where “[t]he order of authorization … was not supported by probable cause
with respect to the matters set forth in section 5710(a)(1) and (2) (relating
to grounds for entry of order).” 18 Pa.C.S.A. § 5721.1(b)(2).
Subsections 5710(a)(1) and (2) of the Wiretap Act state as follows:
(a) Application.--Upon consideration of an application, [a
Superior Court] judge may enter an ex parte order, as requested
or as modified, authorizing the interception of wire, electronic or
oral communications anywhere within the Commonwealth, if the
judge determines on the basis of the facts submitted by the
applicant that there is probable cause for belief that all the
following conditions exist:
(1) the person whose communications are to be intercepted
is committing, has or had committed or is about to commit
an offense as provided in section 5708 (relating to order
authorizing interception of wire, electronic or oral
communications);
(2) particular communications concerning such offense may
be obtained through such interception;
18 Pa.C.S.A. § 5710(a)(1), (2). Aggravated assault and burglary are included
offenses under Section 5708. See id. § 5708(a)(1).
The standard for determining whether probable cause
existed for an order authorizing interception of telephone
communications is the same as that used to determine probable
cause for search warrants.
….
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[I]n an application for a wiretap, the Commonwealth must
establish probable cause to believe that (1) the person whose
communication is to be intercepted has committed an offense as
provided in the state wiretap law, 18 Pa.C.S.[A. §§ 5701-5782],
(2) communications concerning that offense will be transmitted,
and (3) such communications will be intercepted on the facility
under surveillance. In reviewing the adequacy of the application
to support the issuance of an order of authorization, we will
interpret the application in a common sense manner, not overly
technical, with due deference to the findings of the issuing
authority.
Commonwealth v. Birdseye, 637 A.2d 1036, 1042 (Pa. Super. 1994)
(quotation marks and some citations omitted).
Here, the Affidavit of Probable Cause indicates that Bryce described to
Troopers Wilson and Pugh, in detail, how Greenawalt had repeatedly asked
Bryce to kill two people for Greenawalt, and how Greenawalt had admitted to
assaulting Keys with a baseball bat at Keys’s home. See Wiretap Application,
9/17/10, at Exhibit A (admitted into evidence at 10/3/11 pre-trial hearing as
Commonwealth Exhibit 1). Bryce told the troopers that Greenawalt described
how Bryce should conduct the murders, including detailed descriptions of the
homes of the two targets. Id. The Affidavit further states that Trooper Wilson
corroborated the details provided by Bryce, including the location and
description of the homes of Greenawalt’s targets, which were accurate “even
though [Bryce] has no familiarity with the [city where the homes were
located].” Id. Finally, Trooper Wilson stated in the Affidavit that he believed
further evidence of the solicitation to commit murder would be gathered
through use of a recording device. Id.-9-
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Our review of the Wiretap Application reveals that it contains facts
sufficient to establish probable cause to support the issuance of the Wiretap
Order. See 18 Pa.C.S.A. § 5710(a); Birdseye, supra. Therefore, because
Greenawalt’s underlying claim lacks merit, his ineffectiveness claim fails.5, 6
See Tharp, supra.
In his second claim, Greenawalt alleges that Attorney Rentschler was
ineffective in failing to seek a pretrial mental health examination, and in failing
to present the result of said examination as evidence at trial. Id. at 25-30.
Greenawalt points to the testimony of clinical and forensic psychologist Frank
M. Dattilio, Ph.D. (“Dr. Dattilio”), from Greenawalt’s PCRA hearing, that
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5 To the extent that Greenawalt claims that his counsel was ineffective for
failing to file a motion for suppression under Section 5721.1(a)(3) and on
constitutional grounds, Greenawalt fails to explain how this Court’s Wiretap
Order granting placement of the recording device was materially insufficient,
and how Greenawalt’s constitutional rights were violated, with pertinent
citations to case law and relevant argument. See Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that “where an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion capable
of review, that claim is waived.”); see also Pa.R.A.P. 2119. Accordingly,
these claims are waived.
6 We acknowledge Greenawalt’s citation to Commonwealth v. Hashem, 584
A.2d 1378 (Pa. 1991) (holding that a violation of any provision of the Wiretap
Act is grounds for suppression of evidence), and his claim that the Wiretap
Application was defective under Section 5710 of the Wiretap Act. However,
“the Hashem case interpreted the Wiretap Act before it was amended to
include the exclusive remedy provision,” Commonwealth v. Steward, 918
A.2d 758, 760 n.6 (Pa. Super. 2007) (citing Commonwealth v. Donahue,
630 A.2d 1238, 1248 n.11 (Pa. Super. 1993)), and a violation of Section 5710
is not an included ground for suppression. See 18 Pa.C.S.A. § 5721.1(a);
Steward, supra. Accordingly, this claim fails.
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Greenawalt suffers from major depressive disorder and generalized anxiety
disorder. Id. at 26. According to Greenawalt, Dr. Dattilio’s testimony
regarding Greenawalt’s mental disorders may have convinced the jury that he
lacked the necessary intent to be convicted of criminal attempt and criminal
solicitation. Id. At 27-29. Greenawalt argues that Attorney Rentschler lacked
any reasonable basis for not subjecting him to a mental health examination
prior to trial, and that had an expert conducted a pretrial examination and
testified at his trial, the jury may have found him not guilty. Id. at 29-30.
Here, Greenawalt conflates two claims: (1) Attorney Rentschler should
have noticed, before trial, that Greenawalt suffered from mental illness and
submitted Greenawalt to a mental health examination; and (2) Attorney
Rentschler should have had an expert witness testify at Greenawalt’s trial.
Greenawalt fails to explain, on both grounds, how his particular diagnoses of
generalized anxiety disorder and major depressive disorder are relevant to his
ability to form intent. See Johnson, 985 A.2d at 924; see also Pa.R.A.P.
2119. Accordingly, this claim is waived.
In his third claim, Greenawalt alleges that Attorney Rentschler was
ineffective in failing to investigate, and present at trial, character evidence of
his reputation for peacefulness and non-violence. See Brief for Appellant at
30-35. Greenawalt argues that had his trial counsel “succeeded in presenting
relevant character testimony, there is a reasonable probability that the
outcome of the trial would have been different.” Id. at 35.
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Counsel has a general duty to undertake reasonable
investigations or make reasonable decisions that render particular
investigations unnecessary. Commonwealth v. Basemore, …
744 A.2d 717, 735 ([Pa.] 2000) (citing [Strickland v.
Washington], 466 U.S. [668,] 691 … [(1984)]). … The duty to
investigate, of course, may include a duty to interview certain
potential witnesses; and a prejudicial failure to fulfill this duty …
may lead to a finding of ineffective assistance.
Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009).
When raising a failure to call a potential witness claim, the
PCRA petitioner satisfies the performance and prejudice
requirements of the Strickland test by establishing 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.
Id. at 536.
Here, Greenawalt fails to establish that a witness was available to testify
at his trial. See Johnson, 966 A.2d at 536. Accordingly, Greenawalt has
failed to satisfy the performance prong of the Strickland test, and his third
ineffectiveness claim fails. See Charleston, supra.
In his fourth claim, Greenawalt argues that Attorney Rentschler was
ineffective in failing to request severance of the charges relating to his assault
of Keys from the charges relating to his solicitation to commit homicide. See
Brief for Appellant at 36-39. However, our review discloses that Attorney
Rentschler filed a Motion to sever the charges relating to the separate
incidents. Indeed, as stated by the trial court,
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[p]rior to trial, [Attorney Rentschler] filed an [O]mnibus [P]retrial
[M]otion. The [M]otion … sought to sever the trial on the burglary,
aggravated assault, and attempt to commit criminal homicide
charges arising out of the incident in 2006 … from trial on the
three counts of solicitation to commit criminal homicide arising out
of the prison events in 2010 … citing the prejudicial effect of the
former charges, involving actual violence, upon the defense of the
latter charges, which did not.
See Trial Court Opinion, 2/19/19, at 3 (footnotes omitted). Accordingly,
because Greenawalt’s underlying claim lacks arguable merit, his fourth
ineffectiveness claim fails.
Based on the foregoing, we affirm the PCRA court’s Order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/21/2020
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