Com. v. Gordon, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRIAN D. GORDON :
:
Appellant : No. 2049 EDA 2022
Appeal from the PCRA Order Entered August 4, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0002526-2018
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 28, 2023
Brian D. Gordon appeals from the denial of his Post Conviction Relief Act
(“PCRA”) petition. We affirm.
The trial court offered the following summary of the facts for Appellant’s
direct appeal:
[D]uring the early morning hours of April 3, 2018,
Mr. [Stephen] and Mrs. [Tiffani] Howard, their three children and
Mrs. Howard’s mother were inside their home located at 310
Crimson Court, Warrington Township, Bucks County. At
approximately 3:00 a.m., Mr. Howard entered the garage through
the door connecting the kitchen to the garage. At the time, he
observed [Appellant] in Mrs. Howard’s car. Upon being confronted
by Mr. Howard, [Appellant] fled the garage, pursued by
Mr. Howard. After a brief foot chase, during which Mr. Howard
never lost sight of [Appellant], Mr. Howard tackled [Appellant] and
a struggle ensued. When police arrived on scene, Mr. Howard was
on top of [Appellant]. In the immediate vicinity, police found
approximately $30 in loose change[ ] scattered on the street, a
plastic bag, and dark-colored work gloves. After the police
arrived, Mr. Howard returned to his home to find the center
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console of his wife’s car open and approximately $4.00 in change
missing from the door pocket of the vehicle.
Trial Court Opinion, 1/10/20, at 4 (citations omitted). Appellant was arrested
and charged with burglary, criminal trespass, receiving stolen property
(“RSP”), theft from a motor vehicle, disorderly conduct, and loitering and
prowling at nighttime.
The police were summoned to the scene by the Howards’ neighbor,
Ernest Rehr. Mr. Rehr had awoken to his dog barking at the sound of Appellant
and Mr. Howard scuffling near his home. N.T., 1/4/19, at 175-76. Mr. Rehr
looked out the window, saw his vehicle’s interior dome light was on, realized
someone had been in his vehicle, and called the police. Id. at 176-77. After
arresting Appellant, police learned that approximately $5 worth of coins had
been taken from Mr. Rehr’s vehicle. For this incident, Appellant was charged
with theft from a motor vehicle, RSP, and loitering and prowling at nighttime.
On January 4, 2019, Appellant proceeded to a jury trial at which
Mr. Howard and Mr. Rehr testified. Appellant testified in his own defense that
he was in the area dropping off a co-worker, and heading to check on a
disabled ex-coworker, when he stopped his car in the neighborhood to urinate.
See N.T. 1/7/19, at 29-35. Appellant relieved himself in someone’s yard and
attempted to go back to his vehicle, when he heard someone yelling in his
direction and was tackled to the ground. Id. at 31, 36. Appellant denied
entering Mr. Howard’s garage, Mr. Rehr’s vehicle, and any connection to the
$30 found on the ground nearby. Id. On January 7, 2019, the jury convicted
Appellant of burglary, loitering and prowling at nighttime, criminal trespass,
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theft from a motor vehicle, and RSP relative to his conduct towards
Mr. fromHoward. The jury found Appellant not guilty of disorderly conduct
with respect to Mr. Howard, and all charges related to Mr. Rehr’s vehicle.
The trial court sentenced Appellant to four to ten years of imprisonment
for the burglary followed by one year of probation for loitering and prowling
at nighttime. No further penalty was imposed for the remaining convictions.
Appellant filed a post-sentence motion challenging the weight of the evidence
and requesting reconsideration of his sentence, which the trial court denied.
A timely direct appeal followed. On August 17, 2020, this Court affirmed
Appellant’s judgment of sentence. See Commonwealth v. Gordon, 240
A.3d 168 (Pa.Super. 2020) (non-precedential decision). Appellant sought
allocator review in our Supreme Court, which was denied. See
Commonwealth v. Gordon, 249 A.3d 497 (Pa. 2021).
On December 16, 2021, Appellant filed the timely counseled PCRA
petition that is the subject of this appeal. In the petition, Appellant alleged
that trial counsel was ineffective for failing to call witness Stanley Waclawski,
a co-worker of Appellant’s who would have corroborated Appellant’s testimony
that he was in the area that night because he had just dropped him off from
work. Appellant included an affidavit from Mr. Waclawski stating that
Appellant would routinely drive him home from work and did so on the night
of Appellant’s arrest. After the Commonwealth submitted its answer, the
PCRA court issued notice of its intent to dismiss the petition without a hearing
pursuant to Pa.R.Crim.P. 907, indicating that Appellant had failed to establish
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he was prejudiced by trial counsel’s failure to call Mr. Waclawski as a witness.
Appellant filed a response, asserting that there was sufficient prejudice
because Mr. Waclawski offered “key” corroboration testimony that would have
bolstered Appellant’s credibility. See Answer to Notice of Intent to Dismiss,
6/20/22, at ¶¶ 9-14.
On August 4, 2022, the PCRA court denied the petition. A timely notice
of appeal followed. Both Appellant and the PCRA court complied with Pa.R.A.P.
1925. Appellant raises the following issue for our review: “Did the trial court
err in denying Appellant’s PCRA [p]etition without a hearing.” Appellant’s brief
at 4.
We begin with a discussion of the pertinent legal principles. Our “review
is limited to the findings of the PCRA court and the evidence of record,” and
we do not “disturb a PCRA court’s ruling if it is supported by evidence of record
and is free of legal error.” Commonwealth v. Diggs, 220 A.3d 1112, 1116
(Pa.Super. 2019). Similarly, “[w]e grant great deference to the factual
findings of the PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference to its legal
conclusions.” Id. “[W]here the petitioner raises questions of law, our
standard of review is de novo and our scope of review is plenary.” Id. “It is
an appellant’s burden to persuade us that the PCRA court erred and that relief
is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)
(cleaned up). A PCRA petitioner is not entitled to an evidentiary hearing. See
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014). It is within
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the PCRA court’s discretion to decline to hold a hearing if there are no genuine
issues of material fact in controversy. Id. We review the PCRA court’s
decision dismissing a petition without a hearing for an abuse of discretion. Id.Appellant’s argument raises an allegation of trial counsel
ineffectiveness. Counsel is presumed to be effective, and a PCRA petitioner
bears the burden of proving otherwise. See Commonwealth v. Becker, 192
A.3d 106, 112 (Pa.Super. 2018). To do so, a petitioner must plead and prove
that: (1) the legal claim underlying his ineffectiveness claim has arguable
merit; (2) counsel’s act or omission lacked a reasonable basis designed to
effectuate the petitioner’s interests; and (3) prejudice resulted. Id. The
failure to establish any of the three prongs is fatal to the claim. Id. at 113.
Appellant contends that trial counsel was ineffective for failing to call
Mr. Waclawski as a witness. See Appellant’s brief at 12-15. When a PCRA
petitioner claims counsel was ineffective for failing to call a witness at trial,
the petitioner must prove:
(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. Selenski, 228 A.3d 8, 16 (Pa.Super. 2020) (citation
omitted and formatting altered).
Appellant contends he was prejudiced by trial counsel’s alleged
ineffectiveness because “Mr. Waclawski’s proffered testimony was critical as
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it would have corroborated Appellant’s testimony relating to his reason for
being in the area that night.” See Appellant’s brief at 14. However, the PCRA
court disagreed, concluding that Appellant was not entitled to a hearing or
PCRA relief and explaining:
[Appellant’s] defense at trial was that, while he was in the
Howards’ Warrington neighborhood at the time the crime was
committed, he was not the person who committed the crime but
rather had merely stopped to urinate on the side of the road while
on his way to check on a disabled ex-coworker. The proposed
testimony that [Appellant] had driven the witness to Warminster
prior to the incident is not material to the issue before the jury.
The material issue is what he did or did not do while he was in the
Howards’ neighborhood. Given the weight of the evidence against
[Appellant] regarding his commission of the crimes and the
collateral nature of the proposed witness’s testimony, [Appellant]
cannot establish the necessary prejudice resulting from trial
counsel’s alleged omission. As a result, his claim of ineffective
assistance of counsel cannot support his request for PCRA relief.
Petitioner’s PCRA petition was therefore denied and dismissed
without a hearing.
See PCRA Court Opinion, 8/18/22, at 7 (emphasis in original). We agree with
the PCRA court that Appellant has failed to establish that prejudice ensued
from the absence of Mr. Waclawski’s testimony at trial.
As stated above, Mr. Waclawski’s testimony related to the undisputed
fact that Appellant was in the area of Mr. Howard’s home at the relevant time.
However, Mr. Waclawski offered nothing to counter Mr. Howard’s testimony
identifying Appellant as the perpetrator based on his immediate pursuit and
apprehension of Appellant. See N.T., 1/4/19, at 133, 135, 147. Thus, even
if believed, Mr. Waclawski would not have assisted Appellant’s defense that
another person committed the crimes. Instead, it would have corroborated
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the testimony of the Commonwealth witnesses and made it more likely that
Appellant committed the underlying crimes.
Since Appellant has failed to persuade us that Mr. Waclawski’s
testimony, even if believed, would have changed the outcome, no relief is due.
Accordingly, the PCRA court did not abuse its discretion in denying Appellant’s
petition without an evidentiary hearing. See Commonwealth v. Maddrey,
205 A.3d 323, 328 (Pa.Super. 2019) (reiterating the well-established principle
that a defendant seeking reversal of a PCRA court’s decision to dismiss a
petition without a hearing must show that “he raised a genuine issue of 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.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2023
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