Com. v. Fitzgerald, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTHONY FITZGERALD
Appellant No. 1175 WDA 2014
Appeal from the PCRA Order May 27, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015801-2010
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JULY 16, 2015
Appellant, Anthony Fitzgerald, appeals pro se from the order entered
May 27, 2014, by the Honorable Jill E. Rangos, Court of Common Pleas of
Allegheny County, which denied Fitzgerald’s petition filed pursuant to the
Post Conviction Relief Act (“PCRA”).1 We affirm.
A panel of this Court previously summarized the history of this case as
follows.
On September 9, 2010, Fitzgerald was serving customers at a
makeshift convenience store located at 6502 Shetland Street in
Pittsburgh, at which he was employed. Around 11:00 P.M.,
Duncan Plowden (“Plowden”), a regular customer, approached
the store’s sliding glass service window and punched Fitzgerald
in the face. Fitzgerald then shot Plowden in the chest, and
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*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S.A. §§ 9541-9546.
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Plowden ultimately died from this wound. The police
subsequently arrested Fitzgerald and charged him with the
aforementioned crimes. Following a jury trial, Fitzgerald was
found guilty of third-degree murder and persons not to possess
firearms. On September 26, 2011, the trial court sentenced him
to 20 to 40 years of incarceration for third-degree murder and to
a concurrent term of 60 to 120 months for the firearms violation.
Commonwealth v. Fitzgerald, 1744 WDA 2011 at 1-2 (Pa. Super., filed
July 5, 2013) (mem. op.), appeal denied, 79 A.3d 1097 (Pa. 2013). On
appeal, this Court affirmed Fitzgerald’s judgment of sentence and our
Supreme Court denied allocatur. See id.Fitzgerald filed a timely pro se PCRA petition. The PCRA court
appointed counsel. Appointed counsel filed a Motion to Withdraw as
Counsel and an accompanying “no merit” letter. The PCRA court issued
notice of its intent to dismiss the PCRA petition, granted counsel’s motion to
withdraw, and subsequently dismissed the petition. This timely pro se
appeal followed.
Fitzgerald raises the following issues for our review:
1. Did trial counsel render effective assistance of counsel by
failing to object to or request a cautionary instruction
regarding testimony of prior bad acts?
2. Did trial counsel render effective assistance of counsel for
failing to present evidence in support of voluntary
manslaughter under a heat of passion theory?
3. Was trial counsel ineffective for not presenting an expert
witness on the effects of a concussion?
4. Did trial counsel render ineffective assistance for failing to
impeach a witness with prior inconsistent statements i.e
(witness Lilisa Byrd)?
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5. Whether all prior counsel were ineffective for failing to
present all of the above claims of errors to the trial court, the
Superior [C]ourt, and the PCRA court; and the cumulative
effective of the errors did prejudice the PCRA
petitioner/Appellant?
Appellant’s Brief at 2.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,
Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review
is limited to the findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at the PCRA court
level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted).
In order to be eligible for PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).
These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.
§ 9543(a)(3). “[T]his Court applies a de novo standard of review to the
PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244,
259 (Pa. 2011) (citation omitted).
As this Court has repeatedly stated,
[t]o plead and prove ineffective assistance of counsel a
petitioner must establish: (1) that the underlying issue has
arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
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counsel’s act or failure to act. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111, 1127 (2011).
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012).
Fitzgerald first claims that trial counsel was ineffective for failing to
object to or request a cautionary instruction regarding evidence of alleged
prior bad acts, in the nature of Lilisa Byrd’s2 testimony that Fitzgerald was a
chronic crack cocaine user and was a jealous, physically and verbally abusive
partner. See Appellant’s Brief at 12. “[T]he admission of evidence is within
the sound discretion of the trial court and will be reversed only upon a
showing that the trial court clearly abused its discretion.” Commonwealth
v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012) (internal citations
omitted).
It is impermissible to present evidence at trial of a defendant’s prior
bad acts or crimes to establish the defendant’s criminal character or
proclivities. See Pa.R.E. 404(b); Commonwealth v. Hudson, 955 A.2d
1031, 1034 (Pa. Super. 2008). Such evidence, however, may be admissible
“where it is relevant for some other legitimate purpose and not utilized
solely to blacken the defendant’s character.” Commonwealth v. Russell,
938 A.2d 1082, 1092 (Pa. Super. 2007) (citation omitted).
Instantly, the PCRA court determined that Ms. Byrd’s testimony was
admissible under the res gestae exception to Rule 404(b). See PCRA Court
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2
Ms. Byrd, who was Fitzgerald’s fiancée, was present at the time the
shooting occurred.
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Opinion, 11/12/14 at 8. “Pennsylvania courts have long recognized the
special significance of evidence which provides [the factfinder] with the res
gestae, or complete history, of a crime.” Commonwealth v. Wattley, 880
A.2d 682, 687 (Pa. Super. 2005) (citation omitted).
[T]he trial court is not ... required to sanitize the trial to
eliminate all unpleasant facts from ... consideration where those
facts are relevant to the issues at hand and form part of the
history and natural development of the events and offenses for
which the defendant is charged.
Id. (citation omitted). Rule 404(b)(3), however, mandates that other
crimes, wrongs, or acts evidence “may be admitted in a criminal case only
upon a showing that the probative value of the evidence outweighs its
potential for prejudice.” Pa.R.E., Rule 404(b)(3). See also Russell, 938
A.2d at 1092.
We agree that Ms. Byrd’s testimony was properly admissible as part of
the res gestae of the crime. Ms. Byrd testified that, immediately prior to the
shooting, Fitzgerald’s facial expression was somewhat distorted and he
appeared to be twitching—symptoms she recognized from prior occasions on
which Fitzgerald had smoked crack. See N.T., Jury Trial, 5/3/11 at 132.
Ms. Byrd also testified that when the victim asked Ms. Byrd whether she was
okay, Fitzgerald became incensed at the thought that the victim was
interested in a sexual relationship with Ms. Byrd. See id. at 134. Several
moments later, Fitzgerald shot the victim. See id. at 136. Ms. Byrd’s
testimony that Fitzgerald had a history of crack cocaine use and was both
jealous and abusive in their relationship not only provided a context for the
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crime that occurred, but also provided permissible insight into Fitzgerald’s
state of mind. Accordingly, as we find the trial court properly admitted Ms.
Byrd’s testimony pursuant to Rule 404(b), Fitzgerald’s underlying claim lacks
merit.
Fitzgerald next claims that trial counsel was ineffective for failing to
request a voluntary manslaughter jury instruction. See Appellant’s Brief at
17. In sum, Fitzgerald alleges that he suffered a concussion because of the
blow he received from the victim, which he contends rendered him incapable
of “cool reflection,” thus negating a finding of malice. Appellant’s Brief at
20. Fitzgerald provides no evidence, medical or legal, to support the novel
theory that he was medically incapable of acting with malice. Fitzgerald
further fails to verify that he indeed sustained a concussion immediately
prior to the shooting as claimed. Correspondingly, Fitzgerald fails to
establish that there is merit to the argument underlying his claim of
ineffectiveness. Accordingly, this claim fails.
In his next, related claim, Fitzgerald contends counsel was ineffective
for failing to call an expert witness on “the effects of a concussion.”
Appellant’s Brief at 24. Here, Fitzgerald must show that the outcome of the
proceedings would have been different had counsel called an expert medical
witness. However, Fitzgerald again fails to offer any evidence to establish
that he sustained a concussion in the first instance, the manner in which
expert medical testimony would inure to his benefit, or, aside from mere
speculation, the relevance of such testimony to his defense. We note
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“counsel cannot be considered ineffective for failing to pursue a frivolous
claim.” Commonwealth v. Sepulveda, 55 A.3d 1108, 1133 (Pa. 2012).
Therefore, Fitzgerald cannot maintain an ineffectiveness claim on this basis.
In Fitzgerald’s fourth claim of ineffectiveness, he asserts that trial
counsel failed to impeach Ms. Byrd with prior inconsistent statements and
other testimony at trial. Fitzgerald details a litany of alleged discrepancies
between Ms. Byrd’s initial statement to police and her trial testimony. See
Appellant’s Brief at 40-49. Fitzgerald altogether fails to establish the
manner in which he was prejudiced by these alleged discrepancies, or show
that the outcome of the proceedings would have been different had counsel
impeached Ms. Byrd’s testimony with her prior inconsistent statements.
Therefore, Fitzgerald fails to establish counsel’s ineffectiveness.
Fitzgerald’s final argument asserts that all prior counsel were
ineffective for failing to present the above allegations of ineffectiveness. As
we have already determined that Fitzgerald’s ineffectiveness claims lack
merit, this claim must also fail.
Accordingly, having found no merit in the issues on appeal, we will
affirm the order below.
Order affirmed.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2015
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