Com. v. Brozik, G. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GARY LYNN BROZIK
Appellant No. 299 WDA 2014
Appeal from the PCRA Order January 22, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001398-2010
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 31, 2014
Gary Lynn Brozik appeals from the order entered on January 22, 2014,
in the Court of Common Pleas of Fayette County, denying him relief,
following a hearing, on his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. In this timely appeal, Brozik
claims the PCRA court erred in determining plea counsel was not ineffective
for: (1) advising Brozik to enter into the plea, (2) failing to advise Brozik
about the available defense of justification, (3) failing to interview witnesses
prior to advising Brozik to plead guilty, and (4) failing to present mitigating
evidence at sentencing. After a thorough review of the certified record, the
submissions by the parties, and relevant law, we affirm.
We recite the facts underlying the crime as stated in the criminal
complaint, which was referred to at the guilty plea hearing.
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On 08/17/10 at approx. 0400 hrs the accused [Brozik] was
involved in a physical altercation with Michael Ryan Haines at
Haines’s residence [in] Georges Twp Fayette County. The
accused after the physical altercation left the residence with his
fiancé Melinda Rae Boyd where they [] retrieved silver in color
semi automatic handgun from the defendants vehicle (1995 Jeep
Grand Cherokee Pa. Reg. HFP5307). The defendant [Brozik] and
Boyd then returned and entered back into the residence. Boyd
then began threatening the victim(s) with the hand gun and
pointed the hand gun at them. The defendant then got into
another physical altercation with the victim (Haines). The
defendant and Boyd then fled the scene. The defendant and
Boyd then stopped and hid said pistol in a wooded lot behind the
Arby’s restaurant on Morgantown Rd. South Union Twp, Fayette
County. The defendant hid the pistol approx 6’ into the woods.
The defendant and Boyd then went to Uniontown Hospital.
Affidavit of Probable Cause, 8/26/2010.1
Based upon this information and the admitted fact that he had a prior
felony conviction for robbery, Brozik entered into an open guilty plea on the
charge of violating person not to possess a firearm, 18 Pa.C.S. §
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1
This recitation is a condensed version of the synopsis in the Pennsylvania
State Police report dated August 17, 2010. The synopsis includes allegations
that Haines was threatened with the gun and a knife and contains the
statement, “The victim [Haines] related that accused 1 [Brozik] went to hit
him and in the process knocked the gun out of accused 2 [Boyd] hand. The
gun then went under the refrigerator.” See Incident Report, 8/17/2010, at
4. The synopsis also included Brozik’s initial denial of any knowledge of a
gun and then leading the police to where he had thrown it. Id. at 5.
Pursuant to a report from the Bureau of Alcohol, Tobacco, Firearms and
Explosives, the gun was a silver-plated, .45 caliber pistol with a 5 1/4"
barrel, manufacturer unknown with no serial number. See BATFE Report,
8/25/2010.
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6105(a)(1).2 The possession charge was based upon the fact that Brozik
took the handgun from the car and threw it into the woods, after he and
Boyd had left the scene of the altercation.
At the guilty plea hearing, Brozik admitted to possessing the gun by
disposing of it in the woods. See N.T. Guilty Plea, 4/4/2011, at 7-8. At the
sentencing hearing, Brozik told the court he had taken the gun from Boyd to
prevent her from harming Haines. The court asked Brozik if that meant he
wanted to withdraw his guilty plea, and Brozik said no. See N.T.
Sentencing, 5/16/2011, at 3. No direct appeal was taken. Accordingly,
Brozik’s sentence became final on June 15, 2011, when the 30-day limit to
file his direct appeal expired. Brozik filed this PCRA petition on May 16,
2011, which is within the statutorily mandated one-year time limit. See 42
Pa.C.S. § 9545(b)(1).
Before we address the merits of Brozik’s claims, we note:
Our standard of review of a trial court order granting or denying
relief under the PCRA calls upon us to determine whether the
determination of the PCRA court is supported by the evidence of
record and is free of legal error. The PCRA court's findings will
not be disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Heredia, 97 A.3d 392, 394 (Pa. Super. 2014) (citation
omitted). Additionally:
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2
As part of the plea agreement, several other charges against Brozik,
including multiple counts of terroristic threats and reckless endangerment,
18 Pa.C.S. §§ 2706 and 2705, were nolle prossed.
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To prevail on a claim of ineffective assistance of counsel, a PCRA
petitioner must satisfy the performance and prejudice test set
forth in Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). [Commonwealth v.]
Sepulveda, 55 A.3d [1108] at 1117 [(Pa. 2012)]. This Court
has described the Strickland standard as tripartite by dividing
the performance element into two distinct components.
Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35, 45
(2012); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
975 (1987). Accordingly, to prove counsel ineffective, the
petitioner must demonstrate: (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel's
actions or failure to act; and (3) the petitioner suffered prejudice
as a result of counsel's error such that there is a reasonable
probability that the result of the proceeding would have been
different absent such error. Sepulveda, 55 A.3d at 1117 (citing
Pierce, 527 A.2d at 975). Counsel is presumed to have rendered
effective assistance. Sepulveda, 55 A.3d at 1117.
A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead,
if a claim fails under any necessary element of the
ineffectiveness test, the court may proceed to that element first.
Id. at 1117-18.; Commonwealth v. Albrecht, 554 Pa. 31, 720
A.2d 693, 701 (1998). Finally, counsel cannot be deemed
ineffective for failing to raise a meritless claim. Commonwealth
v. Jones, 590 Pa. 202, 912 A.2d 268, 270 (2006).
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014).
Brozik’s first two claims are presented together. Essentially, Brozik
argues trial counsel was ineffective for failing to investigate and explain the
justification defense to him, and therefore was ineffective for advising him to
accept the plea agreement.
Although Brozik informed the sentencing court that he had disarmed
Boyd to keep her from harming Haines, he now claims he was unaware that
that action could have been the basis for a justification defense. The
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requirements for the application of justification are found at 18 Pa.C.S. §
503:
(a) General rule.--Conduct which the actor believes to be
necessary to avoid a harm or evil to himself or to another is
justifiable if:
(1) the harm or evil sought to be avoided by such conduct
is greater than that sought to be prevented by the law
defining the offense charged;
(2) neither this title nor other law defining the offense
provides exceptions or defenses dealing with the specific
situation involved; and
(3) a legislative purpose to exclude the justification
claimed does not otherwise plainly appear.
18 Pa.C.S. § 503(a).
Brozik argues that although he knew he was a convicted felon who
was not allowed to possess a firearm, the greater harm would have been to
allow his fiancé, Boyd, to continue to threaten or even shoot, Haines with
the gun. This would be a compelling argument if only the charge was based
on those facts. However, as the PCRA court points out, Brozik was not
charged with possessing the weapon at any time during the altercation,
when Boyd was threatening Haines. Specifically, the PCRA court stated:
The altercation was long over when [Brozik] attempted to
conceal evidence by depositing the firearm in the wooded area
behind Arby’s. He was defending no one, and the only threat he
faced at that time was criminal prosecution.
PCRA Opinion, 1/22/2014, at 4.
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The factual record supports this conclusion. Brozik was charged with
possession at a time after the altercation, when the pair had left Haines’
residence in Georges Township and had travelled to an Arby’s in South Union
Township, and Brozik took the gun either from the car or from Boyd’s
possession, and threw it into the woods. At that time, Haines was nowhere
near either Brozik or Boyd, and so was in no danger from Boyd.
Because Brozik could not have been protecting Haines when he
disposed of the gun, the defense of justification was not available to him.
Therefore, Brozik’s claim that trial counsel was ineffective for failing to
inform him of the justification defense, and allowing him to plead guilty is
without merit. Accordingly, the PCRA court committed no error of law in
denying Brozik relief on these claims.
Brozik next claims trial counsel was ineffective for failing to interview
witnesses. The PCRA court did not address this allegation, however, this
does not compromise our ability to review the claim.
The failure to investigate “presents an issue of arguable merit
where the record demonstrates that counsel did not perform an
investigation.” Id.[3] “It can be unreasonable per se to conduct
no investigation into known witnesses.” Id. Importantly, a
petitioner still must demonstrate prejudice. Id. To demonstrate
prejudice where the allegation is the failure to interview a
witness, the petitioner must show that there is a reasonable
probability that the testimony the witness would have provided
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3
Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013) (en
banc).
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would have led to a different outcome at trial. Commonwealth
v. Dennis, 597 Pa. 159, 950 A.2d 945, 961 (2008).
In this respect, a failure to investigate and interview a witness
claim overlaps with declining to call a witness since the petitioner
must prove: (i) the witness existed; (ii) the witness was
available to testify; (iii) counsel knew of, or should have known
of, the existence of the witness; (iv) the witness was willing to
testify; and (v) the absence of the testimony was so prejudicial
as to have denied the defendant a fair trial. See
Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297, 302
(2011) (discussing failure to interview and call an alibi witness).
Commonwealth v. Pander, 100 A.3d 626, 638-39 (Pa. Super. 2014) (en
banc).
Brozik lists four people on his certificate of intended witnesses for the
PCRA hearing: himself, his trial counsel, Boyd and Shannon Price.4
Therefore, Boyd and Price are the only two witnesses to whom this claim can
apply. In his PCRA petition, Brozik asserted Boyd would testify that Brozik
disarmed her to protect Haines. Nonetheless, accepting Brozik’s assertion
regarding Boyd’s proposed testimony, it makes no reference to the time
behind the Arby’s when Brozik admittedly threw the gun away. Therefore,
even if trial counsel failed to interview Boyd, Brozik suffered no prejudice as
a result.
Shannon Price was a person who initially went with Brozik and Boyd to
Haines’ residence. She is referred to in the police reports as “unknown
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4
Although he listed four prospective witnesses, including himself, none of
the other listed witnesses testified at the PCRA hearing.
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female.” See Incident Report Synopsis, 8/17/2012, at 4. Although Brozik
lists her as a potential witness at the PCRA hearing, he never provided any
indication of the substance of her testimony. For that reason alone Brozik’s
claim fails. A petitioner must provide the PCRA court with a certification of
the proposed witnesses including a summary of the anticipated testimony.
See 42 Pa.C.S. § 9545(d)(1); Commonwealth v. Pander, supra, at 640.
Because Brozik cannot demonstrate how any of the proposed
witnesses’ testimony would have assisted him, or that those witnesses would
have testified on his behalf, counsel cannot be ineffective for failing to
interview them.
Brozik’s final claim is that trial counsel was ineffective for failing to
present mitigating evidence prior to sentencing. The PCRA court did not
address this issue. However, based upon the certified record and the
specifics of the claim presented by Brozik, we are able to conduct a proper
review.
The only mitigating evidence Brozik has suggested is his claim that he
was justified in disarming Boyd. However, the sentencing court was aware
of this claim, as well as Brozik’s claim that he would not have otherwise
possessed the gun because he was afraid of firearms, after having seen a
friend commit suicide by gun. See N.T. Sentencing, 5/16/2011, at 4.
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In issuing the sentence, the court stated it considered the nature of
the offense,5 the pre-sentence report, Brozik’s statements made at the
sentencing hearing, Brozik’s extensive criminal history, and his rehabilitative
needs. Brozik has presented nothing to support his bald assertion that any
additional emphasis on his claim he disarmed Boyd to protect Haines would
have produced a different sentence.
Because the record supports the PCRA court’s findings and there are
no errors of law, we affirm the denial of Brozik’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2014
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5
We presume this includes the victim’s version of the offense, which
indicated Brozik accidently disarmed Boyd while he assaulted Haines.
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