Com. v. Bair, P. ( 2015 )

J-S09016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL THOMAS BAIR, III,
Appellant No. 932 WDA 2014
Appeal from the PCRA Order May 20, 2014
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003351-2011, CP-65-CR-0003353-
2011
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 13, 2015
Paul Thomas Bair, III, appeals pro se from the order entered May 21,
2014, denying his PCRA petition, after the PCRA court permitted counsel to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc)
(“Turner/Finley”). Finding no error, we affirm.
A jury found Appellant guilty of criminal trespass and simple assault on
April 12, 2012.1 The trespass occurred on November 19, 2010, in Indiana
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1
Appellant was charged with a host of other offenses at three separate case
numbers. The court dismissed several charges prior to the jury deliberating
and the jury acquitted him of the remaining charges, except the trespass
and simple assault. The criminal trespass charge was at case number 3353-
2011 and the simple assault at case number 3351-2011.
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County.2 Tracy Singer and her then-teenage son had arrived home after
dropping off her son’s girlfriend. The two began to argue and Ms. Singer’s
son told his mother that Appellant was sleeping in a back bedroom.
Appellant and Ms. Singer had been friends for over a decade. However, Ms.
Singer said to her son that she did not want Appellant there. Upon hearing
this, Appellant became angry, stormed out of the room and hit Ms. Singer.
After being told to leave by Ms. Singer, Appellant exited the residence, and
then reentered the home and assaulted her again. Appellant left the home
on three or four occasions, but continued to return to strike the victim. The
second time he left, he violently kicked her dog.
Ms. Singer indicated that she demanded that Appellant leave three or
four times and her son also asked Appellant to leave. At one point Ms.
Singer attempted to call the police and Appellant broke her cellphone. Ms.
Singer’s son ultimately contacted the police. Pennsylvania State Trooper
Stephen Siko and his partner arrived on the scene after receiving a call of an
assault. Ms. Singer did not want to pursue charges, and Trooper Siko issued
a citation for a summary harassment offense. That citation, however, did
allege that Appellant hit the victim with a closed fist, and pushed and struck
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2
Appellant challenged the trial court’s venue on direct appeal. We found
this issue waived because Appellant did not contest venue prior to his
preliminary hearing. Appellant has not developed an argument on appeal
that PCRA counsel was ineffective in failing to raise trial counsel’s
ineffectiveness for not timely asserting the venue issue, though he does
contest venue. We address his position in the body of this memorandum.
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the victim, causing an abrasion above her left eye. Subsequently, a bench
warrant was issued for Appellant arising out of the harassment. However,
State Trooper James McKenzie, in the course of investigating later incidents
involving Appellant and Ms. Singer, asked that the harassment charge be
withdrawn in order to file burglary, criminal trespass, aggravated assault,
and simple assault charges. Trooper Siko obliged, and Trooper McKenzie
filed a criminal complaint in Westmoreland County against Appellant alleging
the more serious charges. Trooper McKenzie elected to pursue the charges
in Westmoreland County after discussing the matter with the Indiana County
district attorney and based on his belief that the November 19, 2010
incident initiated a single criminal episode that continued in Westmoreland
County.
One of the later incidents occurred two or three weeks after the
aforementioned events at a bar called the Stumble Inn in Westmoreland
County. The bar was operated by Appellant’s parents. Although Appellant
was acquitted of the criminal charges arising from this occasion, it is
necessary to understand the context of why charges were brought and
consolidated in Westmoreland County. Appellant allegedly approached Ms.
Singer and told her that she was not allowed to be in the bar. According to
Ms. Singer, he then grew angry, began to yell, and threw a beer bottle. Ms.
Singer related that Appellant was upset because her son had talked to the
police about the November 19, 2010 events, and that Appellant had been
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charged with a crime. Appellant supposedly threatened to kill Ms. Singer
and her son. Ms. Singer did not call police at this time, but reported the
matter after the following incident occurred.
On May 1, 2011, Appellant struck Ms. Singer with his fist at the home
of a mutual friend in Westmoreland County, knocking her unconscious.
These facts gave rise to the simple assault conviction at issue herein. Ms.
Singer and several other friends, including Appellant, were at the home of
Clark Baird. Mr. Baird’s home is located directly behind the Stumble Inn.
The group was consuming alcohol at a bar in Mr. Baird’s residence. Among
the individuals at the house was Derrick Quick, Ms. Singer’s boyfriend.
Mr. Quick and Appellant tussled on two occasions within approximately
a five minute period. Appellant maintained that the fight was because Mr.
Quick had slept with Appellant’s nineteen year old daughter and that Ms.
Singer called his daughter a slut. Appellant left the bar area after the
scuffles. However, he returned and struck Ms. Singer in the face. At trial,
Appellant admitted hitting Ms. Singer on this occasion, but he contested the
severity of the injury and that he used his fist. Ms. Singer went to the
hospital the next day for treatment. The jury saw a photograph of her injury
and heard testimony from the treating physician. In addition, the jury heard
a voicemail left by Appellant apologizing to the victim for the assault.
Ms. Singer maintained at trial that she went to the hospital because
she had difficulty seeing from the eye and asserted that she had been cut.
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The medical report did not reflect a cut or that Ms. Singer complained of
vision trouble. Accordingly, Appellant has insisted since the preliminary
hearing in this matter that Ms. Singer committed perjury. Nonetheless,
because Appellant admitted to hitting Ms. Singer, and every other
eyewitness confirmed this, there was overwhelming evidence of his guilt of
simple assault.
Following the jury verdict, the court sentenced Appellant, on July 2,
2012, to one and one-half to seven years incarceration for the criminal
trespass charge and imposed a concurrent one to two year period of
imprisonment for the simple assault conviction. Appellant timely appealed.
Prior to this Court resolving Appellant’s direct appeal, Appellant prematurely
filed a PCRA petition on April 29, 2013. This Court affirmed Appellant’s
judgment of sentence on December 6, 2013, Commonwealth v. Bair, 93
A.3d 503 (Pa.Super. 2013), and Appellant did not petition for allowance of
appeal. Despite Appellant’s direct appeal having been decided, rendering his
initial PCRA petition ripe for review, the PCRA court dismissed that petition
on January 10, 2014, as premature and without appointing counsel.
Appellant filed the underlying PCRA petition on January 21, 2014. The
PCRA court properly construed that petition as a first-time petition and
appointed counsel. The court further directed counsel to file either an
amended petition or a Turner/Finley no-merit letter. Counsel filed a no-
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merit letter on March 24, 2014, although Appellant apparently did not
receive a copy of that document until one month later.
The PCRA court filed a Pa.R.Crim.P. 907 notice of intent to dismiss on
April 28, 2014. Appellant filed a pro se response. The PCRA court issued a
final order on May 21, 2014, denying Appellant’s petition and permitting
counsel to withdraw. This timely appeal ensued. The PCRA court did not
direct Appellant to file or serve a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. However, a different judge from the one
who handled the PCRA matter entered an order indicating that the reasons
for the dismissal could be found in the PCRA court’s Rule 907 notice. The
matter is now ready for our review. Appellant presents two questions for
this Court’s consideration.
1. Did the PCRA Court commit [an] abuse of discretion, and/or
error law, in its assessment of the Defendant’s issues that
was [sic] reached after its independent review of the PCRA
Motion?
2. Was Counsel ineffective in its [sic] representation by
submitting a letter of no merit to the Court after his
assessment of the issues raised by the Defendant in his
PCRA?
Appellant’s brief at 4.
In conducting review of a PCRA matter, we consider the record “in the
light most favorable to the prevailing party at the PCRA level.”
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).
Our review is limited to the evidence of record and the factual findings of the
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PCRA court. Id. This Court will afford “great deference to the factual
findings of the PCRA court and will not disturb those findings unless they
have no support in the record.” Id. Thus, when a PCRA court’s ruling is
free of legal error and is supported by record evidence, we will not disturb its
decision. Id. Of course, if the issue pertains to a question of law, “our
standard of review is de novo and our scope of review is plenary.” Id.
Although Appellant’s statement of issues presented includes only two
claims, he raises numerous arguments under each separate issue. Appellant
begins by contending that the PCRA court did not conduct an independent
review of the record because it did not consider a March 19, 2012 pro se
filing. At the time of this filing, counsel represented Appellant. Thus, any
such pro se filing during this period was a legal nullity. Commonwealth v.
Figueroa, 29 A.3d 1177, 1179 n.2 (Pa.Super. 2011); see also
Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). In addition, there is
no copy of the March 19, 2012 filing in the certified record; therefore, the
PCRA court could not review it. Nor was such a copy in the record during
Appellant’s direct appeal, as this Court entered an order indicating as such.
This explains why no copy has been provided to Appellant by the trial court
despite his attempts to procure a copy of the document.
We add that the record contains a letter from Appellant indicating that
the March 19, 2012 correspondence was a complaint he filed with the
Pennsylvania Disciplinary Board. Thus, its relevance to Appellant’s
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convictions is immaterial. The clerk of courts’ apparent failure to abide by
Pa.R.Crim.P. 5763 does not work any prejudice to Appellant, since any
disciplinary complaint regarding counsel was a collateral matter and
Appellant has been afforded full review of counsel’s effectiveness at trial.
Appellant’s position as to the March 19, 2012 pro se document is entirely
devoid of merit.
Next, Appellant avers that the PCRA court did not address the correct
PCRA petition. According to Appellant, the PCRA court examined his earlier
April 29, 2013 petition rather than his January 21, 2014 petition. This
position stems from the PCRA court’s notice of intent to dismiss, which
references the earlier petition but does not expressly acknowledge the
January 2014 filing. Appellant’s claim fails because the context of both the
PCRA court’s Rule 907 notice and PCRA counsel’s no-merit letter readily
demonstrate that the court and counsel addressed the issues raised in
Appellant’s later petition.
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3
Pa.R.Crim.P. 576(4) reads,
In any case in which a defendant is represented by an attorney,
if the defendant submits for filing a written motion, notice, or
document that has not been signed by the defendant's attorney,
the clerk of courts shall accept it for filing, time stamp it with the
date of receipt and make a docket entry reflecting the date of
receipt, and place the document in the criminal case file. A copy
of the time stamped document shall be forwarded to the
defendant's attorney and the attorney for the Commonwealth
within 10 days of receipt.
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Specifically, PCRA counsel in his no-merit letter examined Appellant’s
allegations that the prosecution used false testimony, failed to authenticate
evidence, used unsubstantiated allegations, violated Pa.R.Crim.P. 576, and
that the trial court improperly questioned a witness, that trial counsel was
ineffective, and the trial court lacked jurisdiction. These are the issues
Appellant leveled in his January 21, 2014 petition. The PCRA court
examined these claims in its Rule 907 notice.
Furthermore, Appellant’s reliance on Commonwealth v. Tedford,
781 A.2d 1167 (Pa. 2001), is misplaced. In Tedford, our Supreme Court
held that where the court dismissed the petitioner’s first-time PCRA petition
without appointing counsel, the subsequent petition was to be treated as a
timely first petition. Here, Appellant was appointed counsel after the 2014
filing, and the court never considered that petition to be untimely. Tedford,
therefore, does not afford relief. As Appellant’s argument is based on an
erroneous factual predicate, i.e., that the court did not consider the claims
leveled in his later petition, he is entitled to no relief.4
Appellant continues, maintaining that the Commonwealth knowingly
presented false statements and did not correct false testimony. In this
regard, Appellant is challenging the testimony of the victim. He posits that
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4
We note that Appellant’s allegations in both petitions are substantially the
same, although he filed witness certifications with his later petition and a
lengthy brief in support of his earlier petition.
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Ms. Singer lied when she testified that she could not see out of the eye that
Appellant struck and that he cut her eye. Appellant’s claim fails for myriad
reasons.
First, claims of trial court error cannot be raised for the first time
during PCRA review. 42 Pa.C.S. § 9544(b); 42 Pa.C.S. § 9543(a)(3).
Rather, issues of trial error must be preserved at trial and raised on direct
appeal or they are waived. 42 Pa.C.S. § 9544(b); Commonwealth v.
Wallace, 724 A.2d 916, 921 (Pa. 1999). Of course, a defendant may
overcome waiver by alleging ineffective assistance of counsel.
“To 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 counsel's act or failure to act.” Commonwealth v. Stewart,
84 A.3d 701, 706 (Pa.Super. 2013) (en banc). The failure to meet any of
these aspects of the ineffectiveness test results in the claim failing. Id.
Arguable merit exists when the factual statements are accurate and
“could establish cause for relief.” Id. at 707. Whether the “facts rise to the
level of arguable merit is a legal determination.” Id. In considering whether
counsel acted reasonably, we look to “whether no competent counsel would
have chosen that action or inaction, or, the alternative, not chosen, offered a
significantly greater potential chance of success.” Id. “Counsel's decisions
will be considered reasonable if they effectuated his client's interests. We do
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not employ a hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.” Id. (citations omitted). Lastly, prejudice
exists where “there is a reasonable probability that, but for counsel's errors,
the result of the proceeding would have been different.” Id. This probability
is sufficient when it “undermines confidence in the outcome of the
proceeding.” Id.
Appellant has not adequately developed any argument that counsel
was ineffective in failing to raise this contention at trial. Moreover, trial
counsel could not be ineffective on this ground because Appellant cannot
establish actual prejudice in light of his admission to striking the victim. The
act of striking a person in the head is simple assault. See Commonwealth
v. Adams, 482 A.2d 583 (Pa.Super. 1984). Assuming arguendo that the
victim lied about the extent of her injuries, proof of simple assault still
existed. It is irrelevant whether the victim could or could not see from her
eye when she went to the hospital. Further, the emergency room
physician’s testimony, though not indicating that the victim complained of
vision loss, supports Appellant’s assault conviction since she complained of
an injury to her face, which was caused by Appellant.
For similar reasons, Appellant’s claim that the victim’s testimony about
her eye went to the foundation of the simple assault crime fails. Whether
the victim lost vision in her eye or suffered a cut does not exculpate
Appellant for his assault. Appellant’s bald assertions that the
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Commonwealth knew that the victim was lying and suborned perjury does
not give rise to a valid claim of suborning perjury. Appellant filed a private
criminal complaint against the victim contending that she committed
perjury. This complaint was rejected, and this Court affirmed that decision.
Commonwealth v. Bair, 93 A.3d 498 (Pa.Super. 2013). Appellant’s
attempts to recast attacks on the credibility of the witness under the guise of
prosecutorial misconduct are entirely unpersuasive. That he would complain
that the witness against him was being untruthful prior to his trial is
unsurprising, but it is not proof that the witness lied or that the
Commonwealth knowingly elicited false testimony.
Ms. Singer testified consistently at the preliminary hearing and trial.
The Commonwealth also introduced a picture taken of the victim showing
the injury. Appellant’s self-serving claim that Ms. Singer was not truthful at
either proceeding does not prove the Commonwealth intentionally prompted
false statements or had a duty to correct the purported false testimony. As
Appellant was acquitted of aggravated assault, the jury likely disbelieved the
severity of the injury.
Appellant’s reliance on Napue v. Illinois, 360 U.S. 264 (1959), is also
unconvincing. In Napue, a witness testified that he had not been promised
anything in return for his testimony. However, the very attorney
prosecuting the case had made promises to the witness. Thus, the
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prosecutor clearly and unequivocally knew that the testimony was
untruthful. This case does not involve remotely similar circumstances.
To the extent Appellant now posits that his father and daughter could
have testified that the victim lied about whether he lived at the home where
the trespass occurred, that position fails too. Any ineffectiveness claim is
waived since Appellant did not develop such a position in this appeal nor did
he raise such a claim in his pro se petition.5 Commonwealth v. Steele,
961 A.2d 786, 807 (Pa. 2008); Wallace, supra. In addition, with respect to
Appellant’s daughter, such an ineffectiveness issue would be meritless since
he states that she was unavailable. Commonwealth v. Clark, 961 A.2d
80, 90 (Pa. 2008) (witness must have been available for counsel to be
ineffective for failing to present that person).
Insofar as Appellant asserts that he “unknowingly always had, at least
one witness” to show that Ms. Singer was lying, the position is absurd ab
initio since that witness was his father. Appellant’s brief at 19. He obviously
knew of his father. Further, Appellant is simply mistaken in his assertion
that, because his father was sequestered, he was ineligible to testify. The
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5
Appellant did attach to his January petition affidavits from his father and a
daughter in which they claimed that Appellant lived with the victim at the
time of the trespass. PCRA counsel addressed the issue by pointing out that
Appellant testified that he stayed at the home and kept a duffel bag of
clothes there, but not that he lived at the residence permanently. Ms.
Singer testified that Appellant did stay at her house frequently, but that he
did not live at the home.
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very purpose of sequestration is so that witnesses who are going to testify
cannot base their own testimony on the testimony of others. Appellant’s
argument strains credulity.
Appellant also submits that the Commonwealth used improperly
authenticated evidence. Such a claim of trial error is waived. Wallace,
supra. Appellant, however, averred in his reply brief that he intended to
raise this position under the guise of ineffective assistance of counsel.
Tellingly, Appellant completely neglects to develop any argument under the
ineffective assistance of counsel test, but instead tries to incorporate by
reference his ineffectiveness discussion on his second issue. See Appellant’s
brief at 25. For this reason alone, Appellant’s claim fails. Steele, supra
(failure to develop ineffectiveness test results in waiver); Commonwealth
v. Briggs, 12 A.3d 291, 342-343 (Pa. 2011) (incorporation by reference is
improper); see also Commonwealth v. Dodge, 77 A.3d 1263, 1275
(Pa.Super. 2013) (disapproving of Commonwealth’s attempt to incorporate
arguments).
Moreover, the argument is untenable based on the record. Appellant’s
claim is that a voice mail on Ms. Singer’s cell phone was not properly
authenticated.6 Ms. Singer testified that it was Appellant’s voice on the call.
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6
Before the PCRA court, Appellant also forwarded an authentication
challenge to a 911 tape from the November 19, 2010 events. He has not
(Footnote Continued Next Page)
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Nevertheless, Appellant maintains that because Pennsylvania State Police
made a copy of this recording, but Ms. Singer did not have knowledge of the
copying process, she could not authenticate the voicemail. Appellant cites
Pa.R.E. 901 and a non-binding 1975 Third Circuit Court of Appeals decision,
United States v. Starks, 515 F.2d 112 (3rd Cir. 1975), in support.
Appellant misreads the applicable rule, which was passed after Starks and,
unlike that decision, is controlling.
Appellant conjoins two discrete authentication issues: first, whether
the voice on the recording was his and, second, whether the copy was an
accurate representation of the voicemail. In either event, Ms. Singer could
authenticate both his voice and the accuracy of the copy. Rule 901 provided
at the time of Appellant’s trial that authentication is “satisfied by evidence
sufficient to support a finding that the matter in question is what its
proponent claims.” See former Pa.R.E. 901.7 Evidence that satisfies the
requirement of voice identification includes “Identification of a voice,
whether heard firsthand or through mechanical or electronic transmission or
recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.” Former Pa.R.E.
_______________________
(Footnote Continued)
addressed that issue in his principal brief. We note that, based on the
record, the claim is frivolous.
7
The current rule is substantively identical. That rule took effect on March
18, 2013.
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901(b)(5). Whether the voicemail was a police copy was irrelevant to
authenticating whether the voice was Appellant’s.8
Additionally, as to the accuracy of the tape, Ms. Singer could testify as
to whether the copy was an accurate representation of the actual voice mail,
since she had knowledge of the original’s contents. When asked if the
recording was the phone call that she received, Ms. Singer answered “Yeah.”
N.T., 4/10/12, at 115. Trial counsel could not be ineffective in failing to
make a frivolous objection.9 Since Ms. Singer could and did authenticate the
recording as being an accurate rendition of her voicemail, any objection
would not have resulted in the inadmissibility of the evidence.
Having disposed of Appellant’s arguments under his first issue, we now
consider the positions he forwards in relation to his second claim. Appellant
inartfully levels a layered claim of ineffectiveness, but does not fully develop
each layer of various counsel’s ineffectiveness. Such failure can preclude
relief. Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).
“Where the defendant asserts a layered ineffectiveness claim he must
properly argue each prong of the three-prong ineffectiveness test for each
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8
Appellant recognized this in his pro se brief in support of his April 2013
petition, but has not as carefully differentiated these authentication claims
on appeal. We address both out of an abundance of caution.
9
Trial counsel actually stipulated that “the message we are going to have
played shortly is of a recording of a telephone message left on Ms. Singer’s
phone after the May 1st incident[.]” N.T., 4/10/12, at 114.
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separate attorney.” Commonwealth v. Rykard, 55 A.3d 1177,
1190 (Pa.Super. 2012); see also Commonwealth v. Reyes, 870 A.2d 888
(Pa. 2005); Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003)
Appellant baldly contends that PCRA counsel was ineffective in filing a
no-merit letter instead of arguing the merits of trial counsel’s ineffectiveness
in a number of areas. As Appellant preserved his PCRA counsel
ineffectiveness claim in his response to the PCRA court’s notice of dismissal,
the issue is not waived on that ground. Commonwealth v. Pitts, 981 A.2d
875 (Pa. 2009); Rykard, supra. Nonetheless, since his underlying trial
counsel ineffectiveness claims are without merit or were not raised, PCRA
counsel cannot be found ineffective.
Appellant submits that trial counsel was ineffective in failing to object
to purported Brady v. Maryland, 373 U.S. 83 (1963) violations. Brady
requires the government to disclose material exculpatory evidence and
material impeachment evidence to the defense. Appellant claims that the
Commonwealth did not disclose a police report from Trooper Siko. Trooper
Siko responded to a 911 call relative to the November 19, 2010 incident.
Appellant asserts that the prosecution told defense counsel that Trooper Siko
did not create a report, but that the trooper testified regarding a report at
trial.
The Commonwealth responds that there was no written report by the
trooper and that Appellant misreads the trial testimony. The Commonwealth
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is correct. Trooper Siko did not testify as to creating a written police report.
Rather, he testified that the only written record of the incident was the
citation he filed and any notes that he had of the incident he disposed of
after filing the citation. The testimony was as follows.
Trial Counsel: Okay. And also when you and I spoke you
shared with me that the summary citation that was filed at the
district magistrate’s is the only written record you’ve retained of
the offense; isn’t that correct?
Trooper Siko: Correct.
Trial Counsel: There is not a typical police investigation report
kept or you don’t even have any notes that you might have put
on a writing pad from that evening?
Trooper Siko. No. Once I fill out the folder notes I just dispose
of them once I do the report.
N.T., 4/11/12, 217. It is this last line that Appellant takes entirely out of
context to support his averment. As is clear from the entirety of the
discussion, Trooper Siko did not create a written record of the events that
eventually led to the criminal trespass charge. Since no written report
existed, the Commonwealth did not violate Brady.
Appellant also contends that the Commonwealth neglected to disclose
the contents of a call to Pennsylvania State Police that was transferred to
that agency from Indiana County 911. The Commonwealth replies that
Appellant did not request this evidence nor did they improperly withhold it
from him. According to Appellant, “[t]he importance of the call to the State
Police is that the 911 call that was submitted [into evidence] contains a
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statement made by Tracy Singer that is, at the very least, exculpatory to the
crime of felony trespass.” Appellant speculates that additional similar
exculpatory information was on the transferred call. The alleged exculpatory
statement that was introduced was that Appellant “came home[.]” N.T.,
4/10/12, at 173. Thus, Appellant argues that he could not trespass in his
own home. Conveniently, Appellant ignores the full context of the recording,
which reads,
I had a friend, I guess, that somebody dropped off here to spend
the night. I came home and I don’t know, I guess he was drunk.
I don’t know him he came home, he went nuts, he kicked my
dog, threw me across the room and started punching me. I
kicked him out of my house, he broke my phone that’s why I
don’t know my number, I’m using my kid’s number, okay. I’m
bleeding and . . .
Id.; see also N.T., 4/11/12, at 180. The full statement makes clear that
Appellant did not live at the home, but was dropped off to spend the night
and that the residence belonged to the victim.
We note that, as with his other ineffectiveness claims, Appellant
completely fails to develop argument as to the three prongs of the
ineffectiveness test. Accordingly, his layered PCRA counsel and trial counsel
ineffectiveness claim fails. Furthermore, frequently staying overnight at a
person’s home does not establish residence. Appellant has never provided
any proof that he received mail at the address. Nor has Appellant shown
that he paid rent to stay at the home or aided in the payment of any other
financial obligations frequently associated with being a resident. The
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keeping of a duffel bag at someone else’s home, as he testified to, actually
supports a contrary conclusion: that one does not live at the residence.
Appellant even testified that he walked home from Ms. Singer’s after she
told him to leave and that he did not “live that far.” N.T., 4/11/12, at 408.
Ms. Singer and her son consistently testified that Appellant did not
keep clothes at the home, but that he did stay overnight. Ms. Singer’s son
maintained that Appellant never lived with him or his mother. N.T.,
4/10/12, at 184. Further, abundant evidence existed that Appellant was
ordered to leave the victim’s address by the victim and her son, yet
Appellant gained entry after any such privilege to enter was revoked.
Appellant’s argument that he permanently lived at the home is untenable.
His due process rights were not violated and counsel was not ineffective in
failing to seek purported evidence that contradicted his own client’s
testimony.
Appellant next asserts that the proper venue for the November 19,
2010 trespass was Indiana County. He begins by arguing that because he
was acquitted of various conduct, that behavior could not consist of a single
criminal episode. As noted in footnote 2, we previously found that Appellant
waived his venue claim by not contesting venue before his preliminary
hearing. We add that trial counsel did raise the venue issue in a pre-trial
motion and the trial court denied the challenge on the merits. The
Commonwealth argued that the later events that occurred in Westmoreland
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County were part of a related criminal episode because Appellant was trying
to intimidate the victim into withdrawing the earlier charge of harassment
that arose in Indiana County.
Appellant’s underlying venue claim remains waived and he has
completely failed to develop any ineffectiveness claim as to PCRA and trial
counsel. The issue therefore does not entitle him to relief. See Steele,
supra. Additionally, Appellant’s attempt to bootstrap his acquittals to
challenge venue is untenable. Obviously, trial counsel could not have
contested venue as a result of an acquittal that had yet to occur. Appellant’s
additional venue arguments are a rambling attack on Trooper McKenzie,
wherein he alleges that the trooper committed the crime of tampering with
public records and failed to adequately investigate the matter. These
allegations are waived since Appellant did not mention them in his pro se
petition. Wallace, supra. Thus, PCRA counsel was not ineffective in failing
to anticipate Appellant’s newest venue attack.
Appellant also advances the position that trial counsel was ineffective
for not objecting to the trial court’s instruction during voir dire that counsel
not mention Ms. Singer’s occupation. Appellant submits that Ms. Singer was
a humane officer. He reasons that had he been able to introduce this fact it
would have further called into question her testimony since she claimed that
he kicked one of her dogs, yet she never instituted a proceeding against
him. These issues were neither raised nor fairly implicated by Appellant’s
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claims in his underlying petition. Therefore, his argument fails. See
Wallace, supra.
The next three positions Appellant levels relate either to the trial
court’s comments or questioning. First, Appellant avers that the court
improperly commented on the demeanor of the victim. Appellant cites no
authority in his brief nor does he address the ineffectiveness test. This issue
does not entitle him to relief.
The second point of complaint pertains to a discussion by the trial
court with the attorneys after trial counsel made a motion for a judgment of
acquittal as to several charges. Appellant does not cite what the trial court
said but absurdly posits that because neither Ms. Singer nor her son testified
to telling Appellant not to come back to the home, her reference on the 911
call that she wanted someone to prevent him from returning could be read
to show that she did not tell him not to return. Not only does Appellant
ignore that both witnesses testified that they repeatedly told him to leave,
since the jury did not hear the unreferenced trial court comments, there is
no prejudice.
In his penultimate claim, Appellant argues that the trial court’s
handing him a photograph depicting Ms. Singer’s eye injury, and questioning
him as to how the injury occurred and if he caused it, was improper. As
Appellant already admitted to striking the victim, no prejudice exists. The
final issue Appellant levels is to having to pay restitution for the victim’s
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cellphone. The underlying claim is waived as are any trial counsel or PCRA
counsel ineffectiveness arguments as he has raised this contention for the
first time on appeal. Wallace, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2015
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