Com. v. Jordan, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TAMMY JORDAN, :
:
Appellant : No. 476 WDA 2014
Appeal from the PCRA Order Entered February 28, 2014,
In the Court of Common Pleas of Erie County,
Criminal Division, at No. CP-25-CR-0002330-2008.
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 16, 2015
Appellant, Tammy Jordan (a/k/a Tam), appeals from the order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
In a memorandum decision addressing Appellant’s direct appeal, we
summarized the history of this case as follows:
In the early morning hours of April 8, 1991, the nude body
of twenty three-year-old Sabrina Kowal (“Kowal” or “the victim”)
was discovered in the middle of a rural road in Erie County.
Kowal had sustained extensive trauma to her head and face.
She also had numerous abrasions, bruises, and human bite
marks on her body. Kowal’s death was ruled a homicide, and the
police initiated an investigation that continued for seventeen
years.
The trial testimony established that, in April 1991, Kowal
was a cocaine user and prostitute. N.T., 7/1/09, at 96. Kowal
was familiar with [Appellant] and his brother, Thomas Jordan
*Retired Senior Judge assigned to the Superior Court.
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(“Thomas”), as she purchased drugs from them and sometimes
saw them at a crack house in Erie (hereinafter, “the crack
house”), which was rented by William Knowles (“Knowles”) and
frequented by numerous drug users. Id. at 97, 174-75, 222-24.
Michelle Smith (“Smith”) testified that in April 1991, she
was a cocaine addict and prostitute and was living in the crack
house. Id. at 94-95. Smith was familiar with the victim and
also purchased drugs from Thomas and [Appellant]. Id. at 96-
97. According to Smith, Thomas would sometimes carry a rod-
like, metal object resembling a cane as a weapon. Id. at 98.
On the evening of April 6, 1991, Smith was at the crack house in
Knowles’s bedroom with Thomas and [Appellant]. Id. at 105.
Thomas and [Appellant] were waiting for the victim to return to
the crack house because they believed that she had stolen
money and/or drugs from [Appellant]. Id. at 101, 105, 227.
Upon the victim’s return, Thomas grabbed her by the throat and
took her into a nearby bedroom; [Appellant] accompanied them.
Id. at 106. Smith then “heard what sounded . . . like something
being bounced off the walls. . . .” Id. Smith also heard the
victim screaming for help. Id. After the screaming had stopped,
Smith then heard [Appellant] say to Thomas, “Oh my God, what
are we going to do now?” Id. at 107. Smith also overheard
Thomas say, “she needed to learn a lesson[,]” and “don’t nobody
[sic] fuck with him.” Id. at 106. When Thomas exited the
bedroom, Smith saw that he had blood on his shirt and jeans.
Id. at 107. Smith was terrified; she jumped out of an open
window and fled the scene. Id. at 108.
When Smith returned to the crack house the next day, she
noticed that the bedroom in which the incident had occurred no
longer had curtains on the window and the rug that had been on
the floor was also missing. Id. at 109-10. The police
interviewed Smith shortly after the victim’s body was found. Id.
at 110. Smith testified that she had initially lied about what she
had observed because she was afraid. Id. at 110-11. Smith
also acknowledged that she had provided false testimony before
a grand jury regarding the incident. Id. at 111.
Donna Johnson Schreckengost (“Schreckengost”) testified
that in April 1991, she occupied the bedroom in the crack house
in which the assault had allegedly taken place. Id. at 170-71,
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181. Schreckengost was at the crack house on April 6, 1991,
and she had seen the victim, [Appellant], and Thomas there.
Id. at 176-78. Schreckengost had passed Thomas while he was
entering the crack house and noticed that he was carrying a
long, metal object. Id. at 177-78. Schreckengost exited the
crack house, walked a short distance, and then heard a “blood-
curdling scream” coming from the residence. Id. at 179.
Schreckengost was familiar with the victim and recognized that
she was the individual who had screamed. Id. at 179-80.
Schreckengost returned to the crack house the following day.
Id. at 180. Upon entering her room, Schreckengost noticed that
her curtains, bedding, and rug were missing. Id. at 181.
Dr. Eric Vey (“Dr. Vey”), a forensic pathologist with the
Erie County Coroner’s Office, reviewed Kowal’s autopsy report as
well as photos of the autopsy and photos taken at the rural road
where Kowal’s body was discovered. Id. at 11, 16-17. Dr. Vey
stated that the cause of Kowal’s death was blunt force trauma to
the head. Id. at 17. In addition to the above-mentioned
injuries, Kowal had several skull fractures and cranial
lacerations. Id. at 29-30, 46-47. Dr. Vey stated that Kowal did
not sustain any other skeletal trauma or any internal organ
damage. Id. at 45. Based upon these findings, Dr. Vey opined
that “[t]he magnitude of trauma here is not consistent with
[Kowal] being struck by a motor vehicle.” Id. at 46.
Pennsylvania State Police Sergeant David Gluth testified
that, during the investigation into Kowal’s murder, the police had
seized several pieces of physical evidence from the crack house.
N.T., 7/2/09, at 30. This evidence included pieces of wood and
paneling taken from Schreckengost’s bedroom, a terry cloth, and
a pair of jeans. Id. All of these items were found to have blood
on them. Id. A test performed on the blood revealed that it
matched Kowal’s blood type. Id. at 30-31.
In July 2008, the Commonwealth charged [Appellant] with
general criminal homicide and conspiracy to commit homicide.1
Thomas was also charged with criminal homicide. The matter
proceeded to a jury trial, at which [Appellant] and Thomas were
tried as co-defendants. At the conclusion of the trial, the jury
returned a verdict finding [Appellant] guilty of third-degree
murder and conspiracy to commit that crime.2 The trial court
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later sentenced [Appellant], on the third-degree murder
conviction alone, to a prison term of ten to twenty years.
Regarding [Appellant’s] conviction for conspiracy to commit
third-degree murder, the sentencing court entered an Order
quashing the conviction, opining that such offense is not a
cognizable crime in Pennsylvania.3 [Appellant] subsequently
filed a post-sentence Motion, arguing, inter alia, that the jury’s
verdict was against the weight of the evidence. The trial court
denied [the post-sentence] Motion. [Appellant] timely filed a
Notice of appeal.
1
18 Pa.C.S.A. §§ 2501, 903(a)(2).
2
The jury also convicted Thomas of third-degree
murder.
3
The Commonwealth did not appeal from this ruling.
Commonwealth v. Tammy Jordan, 1722 WDA 2009, 15 A.3d 539 (Pa.
Super. filed October 22, 2010) (unpublished memo at 1-5).
This Court affirmed Appellant’s judgment of sentence on October 22,
2010, and our Supreme Court denied Appellant’s petition for allowance of
appeal on April 5, 2011. Jordan, 15 A.3d 539, appeal denied, 20 A.3d 485(Pa. 2011).
On February 16, 2012, Appellant filed the instant PCRA petition. The
PCRA court held an evidentiary hearing on April 3, 2013. The PCRA court
then allowed the parties an opportunity to file briefs. On March 3, 2014, the
PCRA Court dismissed Appellant’s PCRA petition. Appellant filed this timely
appeal on March 24, 2014.
Appellant presents the following issue for our review:
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I: DID THE COURT BELOW COMMIT AN ABUSE OF DISCRETION
AND REVERSIBLE ERROR BY FAILING TO GRANT DEFENDANT A
NEW TRIAL DUE TO INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL?
Appellant’s Brief at 1.
Initially, we note appellate briefs must materially conform to the
briefing requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Pa.R.A.P. Chapter 21. Pursuant to Pa.R.A.P. 2101, when a
party’s brief fails to conform to the rules of appellate procedure and the
defects are substantial, an appellate court may, in its discretion, quash or
dismiss the appeal. Rule 2111 provides specific guidelines regarding the
content of an appellant’s brief. See Pa.R.A.P. 2111 (setting forth general
contents of appellant’s brief). In addition, Rule 2111(a)(11) sets forth the
requirement that the appellant include in his brief filed with the Superior
Court a copy of the statement of errors complained of on appeal, filed with
the lower court pursuant to Rule 1925(b). Pa.R.A.P. 2111(a)(11).
Further, Pa.R.A.P. 2119 provides, in pertinent part, as follows:
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part--in distinctive type or in type
distinctively displayed--the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a) (emphasis added).
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Here, we observe that Appellant’s brief does not contain a copy of the
statement of errors complained of on appeal filed with the PCRA court
pursuant to Pa.R.A.P. 1925(b). Also, the argument portion of Appellant’s
brief is not divided into as many parts as there are questions to be argued
because the argument portion is divided into five distinctive parts, yet
Appellant lists only one issue in his “statement of the questions presented.”
Because each of the five points raised by Appellant in the argument portion
of his brief essentially addresses the issues raised in the Pa.R.A.P. 1925(b)
statement filed by counsel, we will address Appellant’s claims.1 Thus, while
these defects in Appellant’s brief are significant, they do not preclude our
review of this matter. Accordingly, we will overlook the defects and proceed
with our review.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
1
We note that the argument portion of Appellant’s brief presents the
following five points: A. Ineffectiveness for failure to preserve for appeal
Cooley/Acosta testimony issue; B. Ineffectiveness relative to a withdrawal of
motion to sever; C. Ineffectiveness for withdrawing oral requests for
voluntary manslaughter instructions; failure to preserve issue for appeal
based upon the court’s error in denying the instruction; D. Ineffectiveness
for failure to call witnesses essential to defense; E. Ineffectiveness for failure
to object to and preserve issues relative to incorrect jury instruction
concerning conspiracy to commit third degree murder. Appellant’s Brief at
4, 6, 8, 11, 14.
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A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for them in the certified record. Id.(citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).
We observe that all of Appellant’s claims challenge the effective
assistance of his trial counsel. In order to succeed on a claim of ineffective
assistance of counsel, an appellant must demonstrate (1) that the
underlying claim is of arguable merit; (2) that counsel’s performance lacked
a reasonable basis; and (3) that the ineffectiveness of counsel caused the
appellant prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.
2001).
We have explained that trial counsel cannot be deemed ineffective for
failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d
125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second
prong, we have reiterated that trial counsel’s approach must be “so
unreasonable that no competent lawyer would have chosen it.”
Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000)
(quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).
Our Supreme Court has long defined “reasonableness” as follows:
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
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alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial
counsel’s decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting
Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.
1967)) (emphasis in original).
In addition, we are mindful that prejudice requires proof that there is a
reasonable probability that, but for counsel’s error, the outcome of the
proceeding would have been different. Pierce, 786 A.2d at 213. “A failure
to satisfy any prong of the ineffectiveness test requires rejection of the claim
of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,
when it is clear that a petitioner has failed to meet the prejudice prong of an
ineffective assistance of counsel claim, the claim may be disposed of on that
basis alone, without a determination of whether the first two prongs have
been met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super.
2005).
It is presumed that the petitioner’s counsel was effective, unless the
petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,
1177 (Pa. 1999). We are bound by the PCRA court’s credibility
determinations where there is support for them in the record.
Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing
Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).
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Furthermore, claims of ineffective assistance of counsel are not self-
proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002).
“[A] post-conviction petitioner must, at a minimum, present argumentation
relative to each layer of ineffective assistance, on all three prongs of the
ineffectiveness standard….” Commonwealth v. D’Amato, 856 A.2d 806,
812 (Pa. 2004). “[A]n underdeveloped argument, which fails to
meaningfully discuss and apply the standard governing the review of
ineffectiveness claims, simply does not satisfy Appellant’s burden of
establishing that he is entitled to relief.” Commonwealth v. Bracey, 795
A.2d 935, 940 n.4 (Pa. 2001).
Appellant first presents an argument that trial counsel was ineffective
for failing to preserve for direct appeal an issue pertaining to the testimony
offered by Mr. John Cooley, which was stricken from the record, but was
then supported by the testimony of Ms. Rose Acosta.2 Appellant’s Brief at 4.
It appears Appellant is asserting that trial counsel was ineffective for failing
to argue on direct appeal that the trial court erred in admitting the
testimony of Ms. Rose Acosta. After the trial court struck Mr. Cooley’s
2
We note that during Appellant’s trial, Mr. Cooley indicated that he loaned a
Ford Bronco to the Jordan brothers. However, it later became evident that
Mr. Cooley loaned the Ford Bronco to a different person with the last name
of Jordan. Appellant’s counsel objected to Mr. Cooley’s testimony. The trial
court then struck Mr. Cooley’s testimony and offered a cautionary instruction
to the jury directing it to disregard the testimony, as there was no evidence
linking the vehicle to Appellant.
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testimony pertaining to loaning a Ford Bronco to Appellant, and Appellant’s
brother testified, the Commonwealth called Ms. Acosta as a witness. Ms.
Acosta testified that she observed a body in the road where the victim was
found, and that she also observed a Ford Bronco in the same vicinity.
Although Appellant’s counsel objected to Ms. Acosta’s testimony, the trial
court refused to instruct the jury again pertaining to the lack of a connection
between the Jordan brothers and the Ford Bronco. Defense counsel did not
present the issue pertaining to Ms. Acosta’s testimony to this Court on direct
appeal.
In addressing a similar issue in the appeal from the denial of
Appellant’s brother’s PCRA appeal, this Court offered the following analysis,
which we find to be dispositive:
In his final issue, [Tommy Jordan] avers that trial counsel
was ineffective for failing to ensure that testimony of two
Commonwealth witnesses was either limited in scope or struck
from the record. Specifically, [Tommy Jordan] argues that
“defense counsel was ineffective for failing to proffer objections
to the retention or permissibility of the testimony of Sergeant
David Gluth and witness Rose Acosta in regard to a Ford Bronco
and preserve those claims for purposes of appellate review.”
[Tommy Jordan’s] Brief at 21.
Generally, to prevail on a claim of ineffective assistance of
counsel under the PCRA, 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.”
[Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)].
***
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In the instant case, the record reflects that Sergeant Gluth
testified that Commonwealth witness John Cooley was a
registered owner of a Ford Bronco. N.T., 7/2/09, at 127. Cooley
subsequently gave improper and irrelevant testimony, which
implied that Appellant had access to Cooley’s Ford Bronco
around the time of the murder. Id. at 138. Cooley’s testimony
was struck from the record following defense counsel’s objection.
Id. at 142-144. The trial court then immediately gave the
following cautionary instruction[:]
Court: Ladies and gentlemen of the jury, there’s
been a request to strike the testimony of John
Cooley. And I’m going to grant that request. Mr.
Cooley testified he lent his vehicle to someone
named Jordan, but there’s no evidence linking that
vehicle to [Tommy Jordan]. Such testimony is
nothing more than speculation or guesswork which
you may not do. I’m striking the testimony and I’m
telling you to disregard.
Id. 144-145. Following the cautionary instruction,
Commonwealth witness Acosta testified to observing a Bronco in
the area where the victim’s body was discovered. Id. at 152.
We agree with the PCRA court’s conclusion that the
prejudicial nature of the testimony of Gluth and Acosta was
cured by the trial court’s immediate cautionary instruction.
PCRA Court’s Notice of Intent to Dismiss PCRA, 3/13/12, at 5.
“The jury is presumed to have followed the court’s instructions.”
Commonwealth v. Flor, 998 A.2d 606, 632 (Pa. 2010), cert
denied, Flor v. Pennsylvania, 131 S. Ct. 2102 (2011). As
there is nothing in the record to rebut the foregoing
presumption, Appellant has failed to demonstrate prejudice.
Accordingly, the PCRA court properly concluded that this issue is
without merit.
Commonwealth v. Tommy Jordan, 749 WDA 2012, 64 A.3d 36 (Pa.
Super. filed December 27, 2012) (unpublished memo at 8-10). For the
same reasons, we conclude that Appellant has failed to establish ineffective
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assistance of trial counsel with regard to Ms. Acosta’s testimony pertaining
to observing a Ford Bronco.
For the sake of argument, if we were to assume that there is merit to
Appellant’s underlying claim of ineffective assistance with regard to Ms.
Acosta’s testimony, and that trial counsel lacked an appropriate strategy in
this regard, we would still conclude that the claim fails because Appellant
has not established the necessary prejudice. As we previously stated,
prejudice requires proof that there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would have been different.
Pierce, 786 A.2d at 213. “A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of ineffectiveness.”
Daniels, 963 A.2d at 419. Accordingly, when it is clear that an appellant
has failed to meet the prejudice prong of an ineffective assistance of counsel
claim, the claim may be found to lack merit on that basis alone. Baker, 880
A.2d at 656.
Appellant presented no argument concerning whether he suffered
prejudice as a result of counsel’s inaction such that there is a reasonable
probability that, but for counsel’s error, the outcome of the proceeding
would have been different. Rather, Appellant simply presents the following
conclusory statement pertaining to prejudice:
It is argued that the [trial court] allowing [Ms. Acosta’s]
testimony to be presented to the jury, particularly in light of the
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fact that it had just stricken the testimony of Mr. Cooley,
resulted in prejudice to [Appellant] which was further
compounded by the fact that the [trial court] did not grant a
requested instruction to the jury to either view this testimony
with caution, or to indicate to the jury that there had not been
shown a connection between [Appellant] and the vehicle that
was testified to.
Appellant’s Brief at 5.
Again, claims of ineffective assistance of counsel are not self-proving.
Wharton, 811 A.2d at 986. Accordingly, we must conclude that Appellant
has failed to establish his claim that trial counsel was ineffective in this
regard. Thus, Appellant’s first claim fails.
Appellant next argues that his trial counsel was ineffective for advising
Appellant to withdraw his pretrial motion to sever the trial from that of his
co-defendant/brother. Appellant’s Brief at 6-8. Appellant contends that he
acquiesced to trial counsel’s advice to withdraw the motion to sever.
However, as we previously stated, we are bound by the PCRA court’s
credibility determinations where there is support for them in the record.
Battle, 883 A.2d at 648.
Here, our review of the certified record reflects that trial counsel
presented a pretrial motion to sever on Appellant’s behalf. Omnibus Pretrial
Motion, 2/11/09, at 1-2. The motion to sever was subsequently withdrawn
on March 5, 2009. The record further reveals that, at the PCRA hearing,
Appellant testified that, after consultation with trial counsel, Appellant
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agreed to withdraw the motion. N.T., 4/3/13, at 54-56. However, trial
counsel testified at the PCRA hearing that the motion to sever was
withdrawn solely based upon Appellant’s desires, and that the motion to
sever was withdrawn against trial counsel’s advice. Id. at 70-71. Moreover,
the PCRA court specifically found the testimony of trial counsel to be credible
and the testimony of Appellant not to be credible. PCRA Court Opinion,
2/28/14, at 8. Accordingly, we decline Appellant’s invitation to reweigh the
credibility determination of the PCRA court in this regard. Therefore, we
conclude that Appellant’s claim of ineffective assistance of trial counsel in
handling his motion to sever fails.
In his third issue, Appellant argues that his trial counsel was
ineffective with regard to his request for a jury instruction on voluntary
manslaughter. Appellant’s Brief at 8-10. Appellant contends that trial
counsel was ineffective for withdrawing a request for the manslaughter
instruction and also, that counsel was ineffective on direct appeal for failing
to challenge the trial court’s refusal to give the manslaughter instruction.
In reviewing this claim, we are mindful that our Supreme Court
recently reiterated the longstanding position that “no jury charge is required
on the elements of voluntary manslaughter where the defendant denies
having committed the killing.” Commonwealth v. Sanchez, 82 A.3d 943,
980 (Pa. 2013). Such was the circumstance in this case.
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In addressing this claim of ineffective assistance, the PCRA court
offered the following discussion:
With regard to the claim that [trial counsel] was ineffective
for withdrawing his oral requests for [a] voluntary manslaughter
instruction and failing to preserve the issue for appeal, this Court
finds [Appellant’s] argument to be without merit. At the end of
the trial, counsel for [Appellant’s] brother requested a voluntary
manslaughter charge and [Appellant’s trial counsel] joined in the
request. Trial Tr., July 6, 2009 at 6:14-9:22. During this
discussion, the Court stated that it believed there was no basis
for such a charge and there was no evidence to satisfy the
elements of voluntary manslaughter. Id. at 6:15-7:16.
However, this Court further stated that it would consider a
voluntary manslaughter charge if defense counsel submitted one
in writing. Id. at 8. Thereafter, [Appellant’s counsel] withdrew
his request for the manslaughter charge.
This Court notes that because the evidence of record did
not support a voluntary manslaughter charge, it was highly
unlikely that it would have changed its position and allowed the
charge. This Court accepts proposed charges for consideration
from the attorneys in every trial, however, only appropriate
charges are given to the jury. This Court further notes that it
was the defense’s position that [Appellant] and his
brother were innocent of the killing. This Court agrees
with the Commonwealth’s argument that a request for an
instruction on voluntary manslaughter would have
contradicted their defense. Therefore, not only would a
manslaughter charge have been inappropriate, but it was a
reasonable strategic decision for [Appellant’s counsel] to
withdraw his request for the voluntary manslaughter charge.
Accordingly, this Court finds that [Appellant’s counsel] was not
ineffective for withdrawing his request.
PCRA Court Opinion, 2/28/14, at 10-11 (emphasis added). We are
constrained to agree with the PCRA court that, given the fact that Appellant
denied having committed the killing, a charge on voluntary manslaughter
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would not have been given by the trial court. Therefore, Appellant’s claim of
trial counsel’s ineffective assistance based upon withdrawal of the request
for the jury charge and failure to raise the jury charge issue on appeal fails.
In his fourth issue, Appellant argues that trial counsel was ineffective
for failure to call various witnesses. Specifically, Appellant contends that
trial counsel should have called Karen Ormsby, Michelle Lowery Cool, Sandy
Aiken (Harvey), and Mr. and Mrs. Linebach. Appellant’s Brief at 11-14.
To prevail on a claim of trial counsel’s ineffectiveness for failure to call
a witness, an appellant must prove: “(1) the witness existed; (2) the witness
was available; (3) trial counsel was informed of the existence of the witness
or should have known of the witness’s existence; (4) the witness was
prepared to cooperate and would have testified on appellant’s behalf; and
(5) the absence of the testimony prejudiced appellant.” Commonwealth v.
Chmiel, 889 A.2d 501, 545-546 (Pa. 2005) (citations omitted). Trial
counsel’s failure to call a particular witness does not constitute ineffective
assistance without some showing that the absent witness’s testimony would
have been beneficial or helpful in establishing the asserted defense. Id.Appellant must demonstrate how the testimony of the uncalled witness
would have been beneficial under the circumstances of the case. Id.-16-
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In addressing Appellant’s claim of ineffective assistance of counsel for
failure to call witnesses, the PCRA court presented the following thorough
analysis after the completion of its PCRA hearing:
With regard to Karen Ormsby[3] and Michelle Lowery Cool,
[trial counsel] explained that each witness’ testimony was
dependent upon the other’s. When faced with having a sheriff
go to the hospital and compel Ms. Ormsby’s presence at trial,
[trial counsel] testified that he and [Appellant] agreed that they
were confident in their presentation of the defense and elected
not to call her. The [PCRA court] finds [trial counsel’s]
testimony to be credible, and thus, [trial counsel’s] decision not
to call Ms. Ormsby was a reasonable strategic decision. It
follows that since Michelle Lowery Cool’s testimony was
dependent upon Ms. Ormsby’s testimony, [trial counsel] was not
ineffective for failing to call either of these witnesses.
With regard to Sandra Aiken, . . . she provided testimony
and statements to police back in the 1990’s with regard to the
events leading up to the victim’s death. These prior statements
were inconsistent with the defense, and had she testified, the
statements would have been used to impeach her credibility.
Moreover, because her prior testimony was made under oath,
the grand jury testimony would also have been admitted as
substantive evidence. See Pa.R.Evid. 803.1(1). Because Ms.
Aiken’s testimony would have been more favorable to the
Commonwealth’s case, [trial counsel] made a reasonable
decision in choosing not to call her as a witness. Accordingly,
[the PCRA court] finds [trial counsel] was not ineffective for
failing to call her as a witness at trial.
With regard to Mr. and Mrs. Linebach, [the PCRA court]
finds that [Appellant] has failed to meet his burden of proof to
demonstrate that the [Linebachs] would have been available for
3
Trial counsel explained that Ms. Ormsby had been subpoenaed, but she
contacted trial counsel the morning she was to testify and notified him that
she had been hospitalized. N.T., 4/3/13, at 79. The trial court offered to
recess the trial and send a sheriff to the hospital to get the witness. Id. at
80.
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trial. According to their Affidavits, the [Linebachs] aver that
around the date of the victim’s death, they lived about eight
miles away [from the discovered corpse] on Sharp Road. On the
day the victims’ body was found, the [Linebachs] discovered a
man sleeping in their car. This man told them he had driven his
truck into a ditch and was looking for help when he decided to
sleep in their vehicle. Mr. Linebach averred that the man
“reeked of alcohol” and gave the man a [ride] to the closest
service station. Mrs. Linebach averred that she did see the
man’s truck stuck in a ditch on their road. [Appellant] argues
that the [Linebachs’] testimony would have convinced the jury
that [this] man was the victim’s killer. First, [the PCRA court] is
of the opinion that it is unlikely that the [Linebachs’] testimony
would have changed the outcome of this case, because it is pure
speculation. Second [the PCRA court] finds that [Appellant] has
failed to demonstrate that the [Linebachs] would have been
available to testify at the time of trial. It is [Appellant’s] burden
to demonstrate all of the elements regarding ineffective
assistance of counsel for failing to call a proposed witness, and
there is no evidence that the [Linebachs], who were Virginia
residents [at the time of trial], would have been available.
Accordingly, [the PCRA court] finds [Appellant has failed to
demonstrate [trial counsel] was ineffective in failing to call the
[Linebachs].
PCRA Court Opinion, 2/28/14, at 11-13. It is our determination that the
PCRA court’s decision is accurately explained in its opinion, and we affirm
this issue on the basis of that decision.
In his final issue, Appellant argues that trial counsel was ineffective
regarding the trial court’s jury instruction pertaining to conspiracy.
Specifically, Appellant claims that trial counsel was ineffective for failing to
object to and preserve issues relating to a jury instruction concerning
conspiracy to commit third degree murder. Appellant asserts that because
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there is no crime of conspiracy to commit third degree murder, the jury
charge was erroneous. Appellant’s Brief at 14-20.
Upon review of the record, we conclude that there is no merit to the
underlying claim. As the PCRA court correctly observes, “[w]ith regard to
the claim that [trial counsel] was ineffective for failing to object to and
preserve issues relative to the incorrect jury instruction on conspiracy to
commit third degree murder, [the PCRA court] finds [Appellant’s] argument
to be without merit. As summarized above, [trial counsel] made no
objection to such a charge because none was specifically given – [the PCRA
court] charged on conspiracy generally. Trial Tr., July 6, 2009 at 9:4-10:12;
141:23-156:21.” PCRA Court Opinion, 2/28/14, at 13.
Indeed, our thorough review of the record reflects that the trial court
did not charge the jury on the crime of criminal conspiracy to commit third
degree murder. Rather, as the PCRA court accurately notes, the trial court
presented the jury with a general charge of conspiracy. N.T., 7/6/09, at
153-156. Nowhere in the charge at issue did the trial court mention that
there could be a conspiracy to commit third degree murder. Accordingly,
Appellant’s claim that trial counsel was ineffective for failing to object to the
trial court’s jury instruction on conspiracy lacks merit.
Moreover, to the extent that Appellant argues the cumulative effect of
the errors alleged herein denied him a fair trial, we observe that our
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Supreme Court has repeatedly stated that “no number of failed claims may
collectively attain merit if they could not do so individually.”
Commonwealth v. Lopez, 854 A.2d 465, 471 (Pa. 2004) (quoting
Commonwealth v. Williams, 615 A.2d 716, 722 (Pa. 1992)). Because we
have held that there were no errors warranting relief, Appellant’s allegation
of cumulative error fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
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