Com. v. Swirsding, J. ( 2021 )

J-S02022-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN SWIRSDING :
:
Appellant : No. 1665 EDA 2020
Appeal from the PCRA Order Entered August 26, 2020,
in the Court of Common Pleas of Chester County,
Criminal Division at No(s): CP-15-CR-0001593-2018.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: Filed: May 20, 2021
John Swirsding appeals from the order denying his petition for relief filed
pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§9541-46.
Additionally, Swirsding’s court-appointed PCRA counsel has filed a motion for
leave to withdraw from representation, as well as a “no-merit” letter pursuant
to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We
grant counsel’s motion to withdraw and affirm the PCRA court’s order denying
post-conviction relief.
The pertinent facts have been summarized as follows:
On May 3, 2018, [Swirsding] was living with [the
Complainant] at their shared residence[.] [Swirsding and
the Complainant] were in a dating relationship at that time.
In the early morning hours of May 3, 2018, the
[Complainant] was sleeping in an upstairs guest bedroom
while [Swirsding] was out consuming alcohol at a bar.
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The [Complainant], believing that [Swirsding] had his key
to the residence, locked the exterior doors before going to
bed. [Swirsding] returned home around 1:00 a.m. and was
intoxicated and unable to get inside the residence.
[Swirsding] broke the window on the back door of the
residence in order to gain entry, cutting open his right ring
finger in the process. Upon entering the residence,
[Swirsding] went upstairs to the bedroom where the
[Complainant] was sleeping, broke through the locked door,
and proceeded to attack the [Complainant].
Officers from the Easttown Township Police Department
were dispatched to the residence after a neighbor heard the
breaking of the glass window pane and commotion inside
the residence and called the police. Specifically, the
neighbor heard [Swirsding] making threats to the
[Complainant]. Upon arrival on the scene, Sergeant Francis
Keenan and Officer Robert Malason entered the residence
and observed [Swirsding] on top of the [Complainant], still
attacking her, and arrested [Swirsding].
The [Complainant] testified at trial that she thought she
was going to die while [Swirsding] had his hands around her
throat and was strangling her. After he was arrested and
placed in a holding cell, [Swirsding] made comments to [the
officers] to “not let him out of jail because he would teach
[the Complainant] a lesson” and that “someone should kill
the [Complainant].”
Rule 907 Notice, 7/9/20, at 2 n.5.
On July 31, 2019, a jury convicted Swirsding of strangulation, terroristic
threats and two counts of simple assault. On December 19, 2019, the trial
court sentenced him to an aggregate term of two to four years in prison, and
a consecutive two-year probationary term. Swirsding did not file a post-
sentence motion. Although he initially filed a direct appeal to this Court,
Swirsding later withdrew it.
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On April 14, 2020, Swirsding filed a counseled PCRA petition, as well as
an amended petition on April 29, 2020. In this petition, Swirsding asserted
that trial counsel was ineffective for failing to call known, available character
witnesses at his trial. Swirsding attached a certification from trial counsel to
his amended petition. In this certification, counsel explained why he chose
not to call the character witnesses identified by Swirsding.
The Commonwealth filed a timely answer. On July 9, 2020, the PCRA
court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Swirsding’s
petition without a hearing. Swirsding did not file a response.1 By order
entered August 26, 2020, the PCRA court entered an order denying
Swirsding’s PCRA petition. Thereafter, the PCRA court appointed current
counsel. This timely appeal followed. Both Swirsding and the PCRA court
have complied with Pa.R.A.P. 1925.
We first address current counsel’s motion to withdraw. Pursuant to
Turner/Finley, supra, before seeking leave to withdraw, a criminal
defendant’s counsel must review the record to determine if any meritorious
issue exists. See Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.
2009). In Pitts, our Supreme Court explained that such review by counsel
requires proof of:
____________________________________________
1 On July 28, 2020, Swirsding fled a pro se request for a 60-day continuance
in order to file a Rule 907 response. The PCRA court directed the clerk of
courts to forward the pro se filing to PCRA counsel.
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1. A “no-merit” letter by PC[R]A counsel detailing the nature
and extent of his review;
2. The “no-merit” letter by PC[R]A counsel listing each issue
the petitioner wished to have reviewed;
3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter,
of why the petitioner’s issues were meritless;
4. The PC[R]A court conducting its own independent review of
the record; and
5. The PC[R]A court agreeing with counsel that the petition
was meritless.
Id. (citation and brackets omitted). Further, PCRA counsel seeking to
withdraw from representation in this Court must contemporaneously forward
to the petitioner a copy of the petition to withdraw that includes (1) a copy of
both the “no-merit” letter, and (2) a statement advising the PCRA petitioner
that, upon the filing of counsel’s petition to withdraw, the petitioner has the
immediate right to proceed pro se, or with the assistance of privately retained
counsel. Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super.
2016).
Upon review, we conclude that PCRA counsel has substantially complied
with the Turner/Finley requirements as set forth above. See
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)
(holding that substantial compliance with requirements to withdraw as counsel
will satisfy the Turner/Finley criteria). We now independently review
Swirsding’s claim to ascertain whether it entitles him to relief.
Our scope and standard of review is well settled:
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In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
Swirsding claims that the PCRA court erred in dismissing, without a
hearing, his claim that trial counsel was ineffective for failing to call character
witnesses to testify on his behalf. To obtain relief under the PCRA premised
on a claim that counsel was ineffective, a petitioner must establish 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. Commonwealth v. Johnson, 966 A.2d
523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to be
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constitutionally adequate, and counsel will only be deemed ineffective upon a
sufficient showing by the petitioner.” Id. This requires the petitioner to
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3)
petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding
of "prejudice" requires the petitioner to show "that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id. A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
As noted above, Swirsding asserts that trial counsel was ineffective for
failing to call character witnesses on his behalf at trial. Our standard of review
is well settled:
When raising a claim of ineffectiveness for failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the [Strickland v. Washington,
466 U.S. 668 (1984)] 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[.]
Commonwealth v. Matias, 63 A.3d 807, 810-11 (quoting Commonwealth
v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).
Rule 404(a)(1) of the Pennsylvania Rules of Evidence states the general
rule that “[e]vidence of a person’s character or character trait is not admissible
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to prove that on a particular occasion the person acted in accordance with the
character or trait.” However, the rule also provides an exception for a
defendant in a criminal case, allowing for the defendant to “offer evidence of
the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor
may offer evidence to rebut it[.]” Pa.R.E. 404(a)(2)(A). “Although evidence
of good character may not be rebutted by evidence of specific acts of
misconduct, character witnesses may be cross-examined regarding his
knowledge of particular acts of misconduct by the defendant to test the
accuracy of his testimony and the standard by which he measures reputation.”
Commonwealth v. Peterkin, 513 A.2d 373, 382-83 (Pa. 1986) (citation
omitted),
Here, the PCRA court explained why Swirsding’s ineffectiveness claim
regarding the failure to call known character witnesses lacked merit, and why
the claim could be dismissed without first holding an evidentiary hearing:
The [PCRA court] finds that [trial counsel], as described
in his certification, had a reasonable trial strategy [for not
calling the character witnesses identified by Swirsding,]
which must end our ineffective assistance analysis.
The record reveals that on April 29, 2020, PCRA counsel
filed an amended PCRA petition that included a certification
and verification from trial counsel. [Swirsding] does not
dispute the accuracy or admissibility of [trial counsel’s]
certification, rather he argues that [trial counsel’s]
reasoning does not constitute a reasonable trial strategy.
We disagree.
In his certification, [trial counsel] stated in detail, his
reasons for not calling the aforementioned individuals as
witnesses to testify regarding [Swirsding’s] peaceful and
non-violent reputation in the community. [Trial counsel]
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cogently detailed at least four (4) separate and distinct
reasons for not calling these witnesses at trial. The reasons
articulated by [trial counsel] comport with our review of the
record[.]
Rule 907 Notice, at 9 n.5 (excess capitalization and citations omitted).
The PCRA court then listed these reasons as follows:
1. [Swirsding’s] email correspondence contradicted
[Swirsding’s] recitation of his prior criminal history.
Specifically, it appears that [Swirsding] included false
language about his propensity for non-violence by
mistake, as a means to coach his potential character
witnesses, or deliberately because these individuals
lacked knowledge of [Swirsding’s] true character, which
is violent.
2. [Swirsding’s] proposed character witnesses were
unaware of [Swirsding’s] prior conviction for violence.
[Swirsding] had previously informed [trial counsel] that
the proposed character witnesses lacked any knowledge
of [Swirsding’s] prior summary harassment conviction
(pled down from a simple assault charge) against the
[Complainant].
3. [Swirsding] failed to inform [trial counsel] that the
purported character witnesses were aware of his
reputation in the community for peacefulness and non-
violence.
4. [Swirsding’s] proposed character witnesses would be
extensively cross-examined about [Swirsding’s] prior
violent conviction, by doing so, the jury would learn of
this conviction which otherwise would not be admitted at
trial.
Rule 907 Notice, 7/9/20, at 10 n.5 (excess capitalization and citations
omitted).
Given the above, the PCRA court further explained:
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Here, logic dictates that [trial counsel] had a reasonable
concern that he may be suborning perjured testimony,
subject his client to impeachment by the Commonwealth, or
that the purported testimony may prejudice the jury against
[Swirsding]. Furthermore, [trial counsel] had a rational trial
strategy because [Swirsding’s] prior conviction for violence
(summary harassment) would have been admissible to
cross-examine these witnesses. The record corroborates
[trial counsel’s] strategy by revealing that [Swirsding’s]
prior harassment conviction was not admitted at trial. Our
review of the record evidences that the proposed character
witnesses were not initially aware of [Swirsding’s] prior
conviction for violence.
Id. Thus, the PCRA court concluded that trial counsel “had a rational basis
for not calling [the three individuals he identified] as character witnesses[,]”
and trial “counsel will not be deemed ineffective for failing to do so.” Id.(citations omitted).
Our review of the record supports the trial court’s conclusion. See, e.g.,
Peterkin, 513 A.2d at 383 (holding trial counsel’s concern “that the potential
harm from cross-examination of character witnesses outweighed the doubtful
value of their testimony, was a reasonable basis for not pursuing potential
character witnesses or presenting character evidence”). In addition, we note
the evidence that Swirsding attacked the Complainant was overwhelming—
the police witnessed Swirsding assaulting the Complainant, a neighbor heard
him threaten the Complainant, the Complainant thought she was going to die,
and, while in custody, Swirsding told that police that someone should kill the
Complainant.
In sum, because the record supports PCRA counsel’s determination that
Swirsding’s trial counsel had a reasonable trial strategy, Swirsding’s
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ineffectiveness claim fails. We therefore grant PCRA counsel’s motion to
withdraw and affirm the PCRA court’s order denying Swirsding post-conviction
relief.
Motion to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/21
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