Com. v. Wunner, W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM CHARLES WUNNER :
:
Appellant : No. 1527 MDA 2019
Appeal from the PCRA Order Entered August 21, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003445-2014
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 12, 2020
Appellant, William Charles Wunner, appeals from the order entered by
the Court of Common Pleas of Luzerne County (“PCRA Court”), which denied
his request for collateral relief under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-46. PCRA counsel has filed a no-merit letter and petition
to withdraw under Turner/Finley.1 Upon review, we remand to the PCRA
court so that it may provide this panel with the benefit of a Pa.R.A.P. 1925(a)
opinion addressing Appellant’s preserved pro se issue maintaining trial counsel
rendered ineffective assistance of counsel by failing to object when the
Commonwealth’s medical expert opined he believed the victim was sexually
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* Former Justice specially assigned to the Superior Court.
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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assaulted even though the medical examination was not consistent with her
narrative.
On December 9, 2014, the Commonwealth charged Appellant with rape
of a child, involuntary deviate sexual intercourse, two counts of aggravated
indecent assault, endangering the welfare of a child, corruption of minors,
indecent assault, and indecent exposure. On January 20, 2016, a jury
convicted Appellant on all charges. On April 15, 2016, Appellant was
sentenced to an aggregate term of 24 to 48 years' imprisonment. This Court
affirmed judgment of sentence in a memorandum decision, Commonwealth
v. Wunner, No. 817 MDA 2016, 2017 WL 3379199 (Pa. Super. Ct. Aug. 7,
2017), and the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal. Commonwealth v. Wunner, 179 A.3d 439 (Pa. 2018).
On December 10, 2018, Appellant filed pro se his first petition for relief
under the PCRA. The PCRA court appointed counsel and presided over a PCRA
evidentiary hearing, at which Appellant was the sole witness. At the
conclusion of the hearing, the court denied Appellant relief. This timely appeal
followed.
Appellant’s PCRA counsel filed in this Court an application to withdraw
as counsel and a no-merit letter, wherein counsel presented for our review
the following issues raised below in Appellant’s PCRA petition:
1. [Was] trial counsel ineffective in failing to utilize the expert
retained for trial?
2. [Was] trial counsel ineffective with regard to his questioning in
preparation for trial?
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3. [Did] the trial counsel commit[] errors of law [by] failing to
object to evidentiary rulings and by failing to move for mistrial?
Turner/Finley brief, at 1.
In response to counsel’s Turner/Finley brief, Appellant has submitted
a pro se brief raising the following issues:
1. [Did] the actions of the PCRA court coupled with PCRA counsel’s
unwillingness to advocate for Appellant during the PCRA
proceedings amount[] to a denial of counsel at a critical stage?
2. [Did] the PCRA court err[] and violate[] Appellant’s due process
rights when it failed to grant Appellant an extension of time so
he could file objections to counsel’s motion to withdraw and
amend his petition?
3. In considering Appellant’s objections to the so-called Anders
brief, does this Court have authority to consider the claim
raised in Appellant’s timely objections as such claim regarding
counsel’s ineffectiveness for failure to object to the testimony
of Doctor Gary Lawrence when he opined that A.W. was
sexually abused when such opinion was predicated on the
witness accounts and not physical findings which was an error,
as such claim disputes the Anders brief?
Appellant’s pro se brief, at 4 (unpaginated).
Before we may consider these issues, we must address whether PCRA
counsel has met the requirements of Turner/Finley. For PCRA counsel to
withdraw under Turner/Finley in this Court:
(1) PCRA counsel must file a no-merit letter that details the
nature and extent of counsel’s review of the record; lists the
appellate issues; and explains why those issues are meritless.
(2) PCRA counsel must file an application to withdraw; serve the
PCRA petitioner with the application and the no-merit letter; and
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advise the petitioner that if the Court grants the motion to
withdraw, the petitioner can proceed pro se or hire his own lawyer.
(3) This Court must independently review the record and agree
that the appeal is meritless.
See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)
(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875
(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008),
overruled in part by, Pitts).
We find that PCRA counsel has complied with Turner/Finley. PCRA
counsel has filed both an application to withdraw and a Turner/Finley no-
merit letter. Finally, PCRA counsel informed Appellant of his right to hire a
new lawyer or file a pro se response.
We now address whether this appeal is indeed meritless. “On appeal
from the denial of PCRA relief, our standard of review requires us to determine
whether the ruling of the PCRA court is supported by the record and free of
legal error.” Widgins, 29 A.3d at 819. As this Court has explained:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we 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. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
A PCRA petitioner is entitled to relief if he pleads and proves that prior
counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A. §
9543(a)(2)(ii). “It is well-established that counsel is presumed effective, and
to rebut that presumption, the PCRA petitioner must demonstrate that
counsel’s performance was deficient and that such deficiency prejudiced him.”
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citation omitted).
“To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and
prove by a preponderance of the evidence that (1) the underlying legal claim
has arguable merit; (2) counsel had no reasonable basis for acting or failing
to act; and (3) the petitioner suffered resulting prejudice.” Commonwealth
v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). “A
petitioner must prove all three factors of the “Pierce2 test,” or the claim fails.”
Id. In other words, “[t]he burden of proving ineffectiveness rests with
Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005).
The first issue in the Turner/Finley brief asserts Appellant’s position
raised below that trial counsel rendered ineffective assistance by failing to use
an expert retained for trial. At the evidentiary hearing, however, Appellant
could identify neither the expert nor the substance of the expert’s opinion.
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2 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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“Where a defendant claims that counsel was ineffective for failing to call
a particular witness, we require proof of that witness's availability to testify,
as well as an adequate assertion that the substance of the purported
testimony would make a difference in the case.” Commonwealth v. Clark,
961 A.2d 80, 90 (Pa. 2008). The most Appellant could maintain at the
evidentiary hearing was his belief there was a “50/50” likelihood that the
expert’s opinion would have helped him. N.T., 8/21/19, at 5-6. Thus given
no meaningful discussion of the expert’s opinion or what difference it could
have made at Appellant’s trial, the PCRA court committed no error in
concluding Appellant failed to meet his burden of proving trial counsel’s
ineffectiveness on this claim.
Appellant’s second issue raised in the Turner/Finley brief posits that
trial counsel was unprepared for trial. In an effort to advance this claim at his
evidentiary hearing, Appellant testified that he had only brief conversations
with trial counsel over the phone prior to trial. N.T. at 9. This unsubstantiated
testimony, however, did not show there existed “a reasonable probability that,
but for counsel's unprofessional errors, the result at trial would have been
different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012) (quoting
Strickland, 466 U.S. at 694)). “A reasonable probability is a probability that
is sufficient to undermine confidence in the outcome of the proceeding.” Id.
Without having included in his testimony any discussion of the alleged
weaknesses in the Commonwealth’s case and of how trial counsel’s failure to
tailor an appropriate defense in response deprived him of a reasonable
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probability of a better outcome, Appellant cannot now prevail on his second
PCRA claim.
Finally, the Turner/Finley brief raises the third issue previously raised
in Appellant’s petition, namely, that trial counsel was ineffective when he
failed to object to certain evidentiary rulings and move for mistrial or, in the
alternative, request curative instructions. Again, because nothing in
Appellant’s testimony at the PCRA evidentiary hearing supported this claim, it
fails.
Turning to Appellant’s pro se brief filed in response to counsel’s service
of the Turner/Finley application and no-merit letter, we consider his first
assertion that a “conflict of interest” automatically arose between PCRA
counsel and him when counsel petitioned for withdrawal under Turner and
the court denied counsel’s request.3 At that time, Appellant contends, the
PCRA court was required to grant Appellant’s pro se motion for a continuance
because of the inherent conflict. See N.T. at 2-3. We disagree.
When a court denies an appellate attorney’s petition to withdraw under
Turner, the ordinary course is not to presume the existence of an inherent
conflict of interest and remand for appointment of new counsel. Rather, it is
to direct counsel to file either a compliant Turner/Finley brief to correct
deficiencies or, if the court discerns meritorious issues to present on appeal,
____________________________________________
3Specifically, Appellant writes, “the process afforded to [Appellant] during the
PCRA proceedings was “presumptively unreliable” because once the Court
denied counsel’s motion to withdraw, a conflict of interest was created.”
Appellant’s pro se brief, at 6 (unpaginated).
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to advocate on the client’s behalf. See, e.g., Commonwealth v. Flowers,
113 A.3d 1246 (Pa.Super. 2015) (denying appointed counsel’s petition to
withdraw under Anders, and remanding for counsel to acquire complete
record before settling on Anders brief or advocate’s brief). See also
Commonwealth v. Colon, No. 422 MDA 2017, 2017 WL 6014426, at *1 (Pa.
Super. Dec. 5, 2017) (denying PCRA counsel's petition to withdraw and
remanding for PCRA counsel to review full record before filing an advocate's
brief or another Turner/Finley “no-merit” letter); Commonwealth v.
McCarty, 117 MDA 2015, 2015 WL 7253818 (Pa.Super. Nov. 17, 2015)
(denying counsel’s request to withdraw and directing counsel to prepare an
advocate’s brief, as it disagreed with counsel’s position that no meritorious
issues existed).
As such, Appellant’s “inherent conflict” argument is not consonant with
the jurisprudence of our courts, which presumes that appointed counsel is
effective and remains capable of representing the appellant’s legal interests
even after having sought unsuccessfully to withdraw from representation. As
Appellant directs us to no authority recognizing a pertinent exception to this
precept, we reject his argument on this point.
Appellant’s remaining argument, however, that trial counsel rendered
ineffective assistance by failing to object when the Commonwealth’s medical
expert testified he believed the victim was sexually abused even though the
physical examination was not consistent with the victim’s allegations, bears
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further inquiry. In this respect, Appellant relies on the Pennsylvania Supreme
Court decision in Commonwealth v. Maconeghy, 171 A.3d 707 (Pa. 2017).
In Maconeghy, the Commonwealth presented a pediatrician as an
expert witness, who opined that a child had suffered sexual abuse. Although
the pediatrician's physical examination of the child showed no evidence of
abuse, he based his opinion on his observation of a forensic interview of the
child and his review of other historical information. Id. at 708. Our Supreme
Court held that “an expert witness may not express an opinion that a particular
complainant was a victim of sexual assault based upon witness accounts
couched as a history, at least in the absence of physical evidence of
abuse.” Id. at 712. (emphasis added). The Court found that “such testimony
intrudes into the province of the jury relative to determining credibility.” Id.
We note that the record establishes Appellant preserved the
Maconeghy issue for review by raising it first with the PCRA court in his
written response to PCRA counsel’s motion to withdraw pursuant to
Turner/Finley. Yet, we are without the benefit of the PCRA court’s opinion
on this issue, which would aid meaningful appellate review given the PCRA
court’s unique role in having presided over both Appellant’s criminal trial and
his PCRA evidentiary hearing.
Accordingly, we remand this matter for the PCRA court’s preparation of
a Pa.R.A.P. 1925(a) opinion addressing the merits of Appellant’s claim that he
is entitled to a new trial pursuant to Maconeghy. The PCRA court shall file
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said opinion within 60 days of receiving this Court’s order and the certified
record.
Panel jurisdiction is retained. The Prothonotary of this Court is directed
to return the record to the Court of Common Pleas of Luzerne County.
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