Com. v. Comeger, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RONALD THOMAS COMEGER :
:
Appellant : No. 937 MDA 2020
Appeal from the PCRA Order Entered June 29, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003339-2016
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 17, 2021
Ronald Thomas Comeger appeals from the order denying his Post
Conviction Relief Act (PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. We
conclude Comeger did not establish his counsel ineffectiveness claims and
affirm the order.
In June 2016, Comeger was arrested after he failed to stop for the
police, and engaged the police in a high-speed chase. His girlfriend and her
seven-week old son were in the car. During the chase, Comeger reached
speeds exceeding 120 miles per hour, weaved in and out of traffic, and passed
approximately 120 vehicles. The chase ended when Comeger collided with
another vehicle after he hit the berms on the roadway, while attempting to
avoid hitting “stop sticks” placed by a state trooper. Memorandum Opinion,
No. 1542 MDA 2017, filed Aug. 31, 2018, at 1-2.
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Comeger was charged with attempted criminal homicide, aggravated
assault of a police officer, aggravated assault of a person less than six years
of age, endangering welfare of children, fleeing or attempting to elude a police
officer, and multiple counts of recklessly endangering another person
(“REAP”),1 as well as violations of the Vehicle Code and Controlled Substance,
Drug, Device, and Cosmetic Act.2
The court set bond at $1,000,000. Counsel filed two motions to reduce
bail, and a motion for nominal bail, all of which the trial court denied.
Following a May 2017 trial,3 a jury convicted Comeger of aggravated
assault of a victim less than six years of age, endangering the welfare of child,
fleeing or attempting to elude a police officer, and 15 counts of REAP. It found
him not guilty of attempted homicide and aggravated assault of a police
officer.4
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118 Pa.C.S.A. §§ 901(a), 2702(a)(2), 2702(a)(8), 4304(a), 75 Pa.C.S.A. §
3733(a), and 18 Pa.C.S.A. § 2705, respectively.
2 75 Pa.C.S.A. 101 et al. and 35 P.S. 780-101, et al.
3 The verdict, court sheet, and order requiring the preparation of a pre-
sentencing report were filed in May 2017, and the transcript of the bench trial
lists a May 2017 date. The transcript of the jury trial lists June 2017 dates. It
appears that the date listed on the jury trial transcript was an error, and we
therefore will use the May 2017 date as the trial date.
4The charges alleging violations of the Controlled Substance, Drug, Device,
and Cosmetic Act were withdrawn prior to trial. The trial court found Comeger
guilty of various Vehicle Code violations.
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The trial court sentenced Comeger to 9½ to 19 years’ incarceration. At
the sentencing, counsel made minor corrections to the pre-sentence report
(“PSI”), including changes in the date of arrest and the grading of one of the
offenses, and stated that, although there were 22 parole violations, Comeger
wanted the court to know that “a lot” were technical violations. N.T., 8/7/17,
at 3-4. Counsel also spoke on behalf of Comeger, including informing the court
that Comeger was a father, was remorseful, and was a mentor to younger
prisoners. N.T., 8/7/17, at 5-6. Comeger also submitted a written document
to the court and spoke at the sentencing. Id. at 4, 7. In imposing sentence,
the court discussed, among other things, Comeger’s criminal history, that he
was a father, and his employment, noting “[h]is work history includes painting
and phones sales,” which “certainly shows he can follow directions.” Id. at 9.
Comeger filed a motion for modification of sentence, arguing the
consecutive sentences resulted in a manifestly excessive sentence, in light of
the criminal conduct, and the sentence was unduly harsh considering the
nature of the crimes. He further argued the excessive sentence was imposed
to punish Comeger for crimes for which he was found not guilty. The trial court
denied the motion.
Comeger filed a notice of appeal. One of the issues he raised on direct
appeal was that the trial court abused its discretion because it imposed
consecutive sentences, which resulted in an excessive sentence. This Court
affirmed the judgment of sentence concluding, among other things, that the
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court did not abuse its discretion. Comeger filed a petition for allowance of
appeal, which the Supreme Court denied in February 2019.
In February 2020, Comeger filed a timely pro se PCRA petition, alleging,
among other things, that the bail amount and the sentence imposed were
excessive, and that his trial counsel was ineffective for failing to raise the
excessiveness arguments. The PCRA court appointed counsel, who filed a
Turner/Finley5 no merit letter and a petition to withdraw as counsel. The
PCRA court issued notice of its intent to dismiss the petition without a hearing
and granted counsel’s motion to withdraw. By order entered in July 2020,6 it
denied the PCRA petition. Comeger filed a timely notice of appeal.
Comeger raises the following issues on appeal:
1) Was counsel ineffective for not arguing that bail was
extremely excessive and violated [Comeger’s] rights under
Constitutional Right Amendment Eight, [e]xcessive bail shall
not be required?
2) Was tr[ia]l counsel and [p]ost [s]entence [c]ounsel
ineffective for not arguing and presenting a proper
argument that the sentence given was in fact excessive and
violated [Comeger’s] rights to effective assistance of
counsel under the Sixth Amendment as well as cruel and
unusual punishment?
Comeger’s Br. at 4 (suggested answers omitted).
When reviewing the denial or grant of relief under the PCRA, “[w]e must
determine whether the PCRA court’s ruling is supported by the record and free
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5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
6 The order was dated June 29, 2020 and filed July 27, 2020.
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of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super.
2018) (citation omitted).
For purposes of an ineffectiveness claim, “counsel is presumed to have
rendered effective assistance.” Commonwealth v. Lesko, 15 A.3d 345, 374
(Pa. 2011). A petitioner may overcome this presumption by pleading and
proving by a preponderance of the evidence that: “(1) [T]he underlying legal
claim has arguable merit; (2) counsel had no reasonable basis for [the] action
or inaction; and (3) [the a]ppellant suffered prejudice because of counsel’s
action or inaction.” Commonwealth v. Maddrey, 205 A.3d 323, 327
(Pa.Super. 2019) (quoting Presley, 193 A.3d at 442). To establish prejudice,
the petitioner must “show that his trial counsel’s conduct had an actual
adverse effect on the outcome of the proceedings.” Commonwealth v.
Spotz, 84 A.3d 294, 315 (Pa. 2014).
In his pro se PCRA petition, Comeger argued both that his bail was
excessive and that his counsel was ineffective for failing to argue it was
excessive. In his appellate brief, Comeger concedes that a claim that bail was
excessive is not cognizable under the PCRA, but maintains that his claim that
trial counsel was ineffective for failing to challenge the bail amount is
cognizable and meritorious. Comeger’s Br. at 8. He claims his counsel should
have investigated the charges, as the evidence did not support the attempted
murder charge, and that his counsel should have requested a hearing to
reduce the bail amount. He claims his counsel was ineffective for failing to
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argue that the Commonwealth based its decision to request the high bail
amount on faulty information.
The PCRA court concluded the underlying claim, that is, that the bail
was excessive, lacked merit. Trial Court Opinion, filed June 4, 2020, at 6.
(“Notice of Intent to Dismiss”). It noted that Pennsylvania Rule of Criminal
Procedure 523 provides the factors a court should consider when imposing
bail. Id. (citing Pa.R.Crim.P. 523(A)).7 It found the bail was reasonable
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7 Rule 523(A) provides:
(A) To determine whether to release a defendant, and what
conditions, if any, to impose, the bail authority shall
consider all available information as that information is
relevant to the defendant’s appearance or nonappearance
at subsequent proceedings, or compliance or noncompliance
with the conditions of the bail bond, including information
about:
(1) the nature of the offense charged and any mitigating or
aggravating factors that may bear upon the likelihood of
conviction and possible penalty;
(2) the defendant’s employment status and history, and
financial condition;
(3) the nature of the defendant’s family relationships;
(4) the length and nature of the defendant’s residence in
the community, and any past residences;
(5) the defendant’s age, character, reputation, mental
condition, and whether addicted to alcohol or drugs;
(6) if the defendant has previously been released on bail,
whether he or she appeared as required and complied with
the conditions of the bail bond;
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considering the charges, which included attempted homicide, aggravated
assault, and fleeing or eluding the police, and Comeger’s extensive prior
criminal history. Id. It further found Comeger did not prove counsel’s actions
lacked a reasonable basis or that he suffered prejudice, noting that Comeger’s
trial counsel had filed motions to reduce bail, which were denied. Id. These
findings are supported by the record, and the court did not err in finding the
ineffectiveness claim lacked merit. The underlying claim lacked arguable
merit, counsel did file motions to reduce bail, and any alleged failure at the
bail proceeding stage did not prejudice Comeger, as it would not alter the
outcome of the proceedings.
Comeger next argues his counsel was ineffective for failing to properly
argue that his sentence was excessive and that the court failed to consider his
rehabilitative needs. He claims counsel should have presented evidence and
testimony on his behalf.
On direct appeal, counsel argued that the trial court imposed an
excessive sentence and failed to consider Comeger’s rehabilitative needs. This
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(7) whether the defendant has any record of flight to avoid
arrest or prosecution, or of escape or attempted escape;
(8) the defendant’s prior criminal record;
(9) any use of false identification; and
(10) any other factors relevant to whether the defendant
will appear as required and comply with the conditions of
the bail bond.
Pa.R.Crim.P. 523(A).
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is the same as the claim underlying Comeger’s ineffective assistance of
counsel claim. Counsel cannot be found ineffective for failing to present a
claim and argument that counsel actually raised. To the extent Comeger
claims counsel should have presented character witnesses and information
about his employment and community involvement, and claims counsel should
not have allowed the Commonwealth to present the “faulty” pre-sentence
report, this claim also fails. At sentencing, Comeger made some corrections
to the PSI, but did not take that opportunity to make any additional corrections
to the allegedly “faulty” report. Further, Comeger points to no information that
the court should have considered, but did not. His ineffectiveness claim
therefore lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/17/2021
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