Com. v. Anthony, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID ANTHONY :
:
Appellant : No. 718 WDA 2020
Appeal from the PCRA Order Entered June 29, 2020
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000109-2017
BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 24, 2021
David Anthony (Appellant) appeals from the order denying, after a
hearing, his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful consideration, we affirm.
A jury convicted Appellant of three counts each of delivery of a
controlled substance and possession of a controlled substance. On March 15,
2017, the trial court sentenced Appellant to an aggregate five to 15 years in
prison. Appellant filed a direct appeal, and this Court affirmed his judgment
of sentence. Commonwealth v. Anthony, No. 578 WDA 2017 (Pa. Super.
Dec. 27, 2018) (unpublished memorandum).
Appellant filed a timely pro se PCRA petition on December 26, 2019.
The court appointed counsel, who filed an amended PCRA petition on March
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* Retired Senior Judge assigned to the Superior Court.
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17, 2020. On March 18, 2020, the court scheduled an evidentiary hearing for
June 16, 2020. On June 29, 2020, the court entered an order denying relief.
Appellant filed this timely appeal. The PCRA court and Appellant have
complied with Pa.R.A.P. 1925.
Appellant presents a single issue for review:
Was [Appellant]’s trial counsel ineffective, and [Appellant]
thereby prejudiced, for failing to withdraw from representation of
[Appellant], due to a conflict of interest, where trial counsel had
previous to [Appellant]’s trial, and subsequent to said trial,
represented a Commonwealth witness who testified against
[Appellant] at [Appellant]’s trial?
Appellant’s Brief at 3.
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. Hernandez, 79 A.3d
649, 651 (Pa. Super. 2013). “The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.” Id.With regard to a petitioner’s claim of Trial Counsel’s ineffectiveness:
It is well-settled that counsel is presumed to have been ineffective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. To overcome this presumption, a
petitioner must establish that: (1) the underlying substantive
claim has arguable merit; (2) counsel did not have a reasonable
basis for his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel's deficient performance, that is, a
reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.
A PCRA petitioner must address each of these prongs on appeal.
A petitioner’s failure to satisfy any prong of this test is fatal to the
claim.
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Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
omitted).
With regard to Appellant’s claim that Trial Counsel was ineffective due
to a conflict of interest, our Supreme Court has held that an appellant cannot
succeed on a conflict of interest claim absent a showing of actual
prejudice. Commonwealth v. Sepulveda, 55 A.3d 1108, 1147 (Pa. 2012).
Prejudice is presumed “when the appellant shows that trial counsel was
burdened by an actual—rather than mere potential—conflict of interest. To
show an actual conflict of interest, the appellant must demonstrate that: (1)
counsel actively represented conflicting interests; and (2) those conflicting
interests adversely affected his lawyer’s performance.” Id. (citation and
internal quotation marks omitted); see also Commonwealth v. Padilla, 80
A.3d 1238, 1248 (Pa. 2013) (to establish actual conflict, appellant must show
counsel actively represented conflicting interests and actual conflict adversely
affected counsel’s performance). In Commonwealth v. Williams, 980 A.2d
510, 522 (Pa. 2009), our Supreme Court cited the United States Supreme
Court in Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 1243, 152
L.Ed.2d 291 (2002), for the definition of “actual conflict of interest” as a
“conflict of interest that adversely affects counsel’s performance.”
The Pennsylvania Supreme Court has stated,
in focusing on the “active” nature of the conflict, the Court’s
concern centers primarily on the potential for an attorney to alter
his trial strategy due to extrinsic considerations stemming from
other loyalties, thereby distorting counsel’s strategic or tactical
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decisions in a manner that would not occur if counsel’s sole loyalty
were to the defendant. In this vein, courts sometimes assess
adverse effect by questioning whether the record shows that
counsel “pulled his punches,” i.e., failed to represent the
defendant as vigorously as he might have done had there been no
conflict.
Commonwealth v. King, 57 A.3d 607, 619 (Pa. 2012) (citations omitted).
Further,
the United States Supreme Court “has noted an
actual conflict of interest is one which adversely affects counsel’s
performance.” See Cuyler v. Sullivan, 446 U.S. 335, 346–48,
100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (“We hold that the
possibility of conflict is insufficient to impugn a criminal conviction.
In order to demonstrate a violation of his Sixth Amendment rights,
a defendant must establish that an
actual conflict of interest adversely affected his counsel’s
performance.”).
Commonwealth v. Cousar, 154 A.3d 287, 310 (Pa. 2017).
Instantly, the PCRA court — who also sat as the trial court — accurately
recited the underlying facts and procedure that are critical to our review of
Appellant’s ineffectiveness issue. The PCRA court explained:
[Trial Counsel] entered his appearance on October 19, 2016
to represent [Appellant] at CP-33-CR-415-2016 and CP-33-CR-
416-2016 on charges stemming from two controlled heroin buys
between him and Rebecca Grieneisen (“Grieneisen”). Those
transactions were alleged to have occurred at 100 Brown Street
in Reynoldsville, PA on April 4, 2016 and April 6, 2016.
At the time he entered his appearance for [Appellant], [Trial
Counsel] was also counsel of record for David Berouty (“Berouty”)
at CP-33-CR-505-2016 and CP-33-CR-506-2016. Like
[Appellant]’s, Berouty’s charges arose from two drug transactions
with Grieneisen. Both were alleged to have occurred on October
9, 2015, though, and both took place inside of Berouty’s car in a
school parking lot. The only factual overlap between the two
defendants’ cases was that Grieneisen was the confidential
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informant and Officer Tammy Murray her handler. [Trial Counsel]
thus had no reason to surmise from the facts alone that Berouty
had ties to [Appellant].
What [Trial Counsel] did know was that the discovery in
[Appellant]’s cases connected [Appellant] to a man named Vinny.
Having only ever known and referred to Berouty as “David,” [Trial
C]ounsel was unaware until shortly before trial that “David” and
“Vinny” were the same person. Once it was brought to his
attention, however, [Trial Counsel] filed motions for leave to
withdraw from Berouty’s cases, noting that he had learned
“through discussion with each client” that there existed a conflict
between the two and that he was “unable to represent both
Defendants at trial.” Testifying at the PCRA hearing, [Trial
Counsel] did not recall what discussions he was referencing. He
knew, though, that [Appellant] was headed for trial and did not
yet know what Berouty would decide to do.
No longer counsel for Berouty as of February 7, 2017, [Trial
Counsel] was no longer at risk for becoming conflicted out of
[Appellant]’s cases and thus had no reason to move to withdraw
from them. [Appellant] was scheduled for trial the next month to
answer two sets of facts substantively divorced from those on
which Berouty was being prosecuted. Having never discussed
[Appellant]’s cases with Berouty, moreover, [Trial Counsel] had
not learned from his former client anything that might prejudice
his relationship with or ability to zealously represent [Appellant].
That did not change when the scope of [Appellant’s] case changed
a few days before trial.
With the new charges added, Berouty became more than
just [Trial Counsel’s] former client; he became an adverse witness
the attorney would have to cross-examine. Because of the prior
representation, though, a thorough cross would require the
attorney to breach his continuing ethical duty to keep confidential
certain information he had learned before withdrawing from
Berouty’s cases. For that reason, the [trial c]ourt appointed
Michael Marshall, Esq. as co-counsel for the limited purpose of
cross-examining Berouty at trial and instructed [Trial Counsel] to
erect the proverbial “Chinese wall” between them.
Clear through trial, then, the only actual conflict was
between [Trial Counsel] and Berouty, and because [Trial Counsel]
took appropriate steps to eliminate that conflict, he concurrently
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ensured that his representation of Berouty would not create a
conflict between him and [Appellant].
PCRA Court Opinion, 6/29/20, at 1-3 (footnote omitted).
Appellant argues Trial Counsel had a “concurrent conflict of interest and,
if [Appellant]’s testimony is to be believed, he never gave [Trial Counsel]
his informed consent to continue representing him. [Trial Counsel] merely told
[Appellant] that it was nothing for him to worry about.” Appellant’s Brief at
15 (bold emphasis added).1 Appellant continues, “Albeit [Trial Counsel]
testified that he disclosed the conflict to [Appellant] and [Appellant] waived
that conflict.” Id. at 15-16. At this juncture, we emphasize that the
PCRA court’s credibility determinations, when supported by the record, are
binding on the appellate court.” Commonwealth v. Spotz, 18 A.3d 244, 259
(Pa. 2011) (citation omitted).
Witness credibility aside, Appellant maintains Trial Counsel “had no
reasonable basis for failing to motion the court to withdraw from [Appellant]’s
case once he became aware of the conflict between [Appellant] and Berouty.”
Id. at 19. He asserts “there was an ‘actual conflict’, in which case prejudice
is presumed,” and “[a]s a result, [Appellant] has satisfied by a preponderance
of the evidence all three prongs of his ineffectiveness claim and is entitled to
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1In his concise statement, Appellant stated “that his conflicted trial counsel’s
continued representation of defendant, without even advising [him] of
said conflict, prejudiced him and he therefore [sic] entitled to a new trial.”
Pa.R.A.P. 1925(b) Statement of Errors, 7/23/20, at 2 (bold emphasis added).
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a new trial.” Id. at 19-20. Appellant acknowledges that it was his burden to
establish that Trial Counsel “actively represented conflicting interests,” and
those conflicting interests “adversely affected” Trial Counsel’ performance.
Appellant’s Brief at 12 (citing Commonwealth v. Collins, 957 A.2d 237, 251
(Pa. 2008)). However, Appellant does not describe or explain the requisite
“adverse effect” — including how Trial Counsel failed to represent him “as
vigorously as he might have done had there been no conflict from the alleged
conflict.” King, 57 A.3d at 619.
Conversely, the PCRA court, after the evidentiary hearing, took the
matter under advisement, and approximately two weeks later, issued an order
and opinion in which it denied relief, and concluded Appellant failed to
establish that Trial Counsel’s “interests diverged with respect to a material
factual or legal issue or to a course of action the attorney took or did not take
as a result of the conflict.” PCRA Court Opinion, 6/29/20, at 3, citing
Commonwealth v. Collins, 957 A.2 237, 251 (Pa. 2008).
Appellant and Trial Counsel were the only witnesses to testify at the
PCRA hearing.2 The parties stipulated that David Berouty was deceased. N.T.,
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2Appellant raised numerous claims of Trial Counsel’s ineffectiveness that were
explored and to which the both witnesses testified; however, Appellant’s claim
of Trial Counsel’s ineffectiveness due to a conflict of interest is the only
argument he presents on appeal. See Pa.R.A.P. 1925(b) Statement of Errors,
7/23/20; see also Appellant’s Brief at 3.
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6/16/20, at 3. The following exchange occurred during PCRA Counsel’s direct
examination of Appellant:
COUNSEL: [Appellant], did [Trial Counsel] talk to you about
why [Attorney] Mike Marshall was questioning
Mr. Berouty [during trial]?
APPELLANT: He said that – his words were pretty well
exactly, I’m just having him question him
because I don’t want there to be any kind of
conflict.
COUNSEL: Did he explain what conflict, if any, there would
be?
APPELLANT: No, not whatsoever. He said it was nothing for
me to worry about.
COUNSEL: Were you aware of what that conflict was?
APPELLANT: No, not until I started hearing all the other
things once I got put in prison from all the other
people that were involved in the drug cases.
N.T., 6/16/20, at 8.
On cross-examination, Appellant testified that Trial Counsel never
advised him of his dual representation of Appellant and Mr. Berouty. Id. at
23. However, he also responded when asked by the Commonwealth:
Q. Did [Trial Counsel] explain what Mr. Marshall was there for?
A. Yeah. He said he was there. He was going to ask Dave
Berouty a couple of questions if he needed to.
Q. Did you find that odd?
A. Yes, I did find that odd. . . . and I even asked him. I said,
why is he questioning him? And he said it’s -- it’s no concern
or anything to affect you now. It’s just about something I’m
doing or something.
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Id. at 23-24.
Next, PCRA Counsel called Trial Counsel, who testified to exclusively
practicing criminal law. Id. at 27. Trial Counsel confirmed that he withdrew
from representing David Berouty in February 2017, prior to Appellant’s trial,
due to his representation of Appellant. Id. at 32. He also testified that after
Appellant’s trial and conviction, he withdrew from another case where he
represented Mr. Berouty, “probably” as a result of having represented
Appellant. Id. However, when PCRA Counsel asked, “In your motion [to
withdraw], you say through discussion. Do you know what it was? Was one
of them trying to throw the other under the bus or--?” Trial Counsel replied,
“No, I -- I had absolutely no discussions with Mr. Berouty regarding
[Appellant’s] case. So it wasn’t that, but I can’t remember what it was.” Id.
at 32-33.
PCRA Counsel continued to question Trial Counsel:
Q. Why did you have [Attorney] Mike Marshall come in just for
cross-examination of Mr. Berouty?
A. That was something that was discussed in chambers, and I
pointed out what conflict I had, and [Appellant] was well
aware of that. And the court appointed Attorney Marshall
to come to court.
Q. Now, you say [Appellant] was well aware of the conflict.
How did he become aware?
A. From me going to the jail and talking to him.
Q. And, again, what was the conflict?
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A. It was [Mr. Berouty] was going to be a potential witness for
the Commonwealth, and I represented him on other drug
cases or drug activity.
Id. at 33.
Trial Counsel was next questioned by the Commonwealth:
Q. You were asked about Mr. Berouty and how you ended up
withdrawing from his representation. Do you recall that in
this case [Appellant] was originally only charged with two
controlled buys?
A. Yes.
Q. And Mr. Berouty was not a witness regarding those two
controlled buys?
A. That would be right.
Q. And at some point in time, the Commonwealth wanted to
add these other charges. And in those text messages, there
were repeated references to someone named Vinny.
A. Yes.
Q. Do you recall that?
A. Yes.
Q. And we determined that Vinny was David Berouty.
A. Even though I represented Mr. Berouty, I always referred to
him as David.
Q. Yeah.
A. I – I did not know his nickname was Vinny until it was
getting close to trial.
Q. And so does that reflect your recollection that at some point
in time although you didn’t understand it prior to that, at
some point in time you started to realize that Mr. Berouty
was a witness against [Appellant]?
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A. Right. I think that was from one of our conferences. One
of our discussions.
N.T., 6/16/20, at 38-39.
Trial Counsel further testified:
[The trial court] said to create a Chinese wall between [Attorney]
Marshall and myself. I never discussed with Mr. Berouty anything
he knew about [Appellant]. There was no discussion like that at
any point.
Id. at 40.
The Commonwealth continued to question Trial Counsel:
Q. [Y]ou said you disclosed this conflict to [Appellant]?
A. Yes.
Q. And you told him about your prior representation of Mr.
Berouty. And you said he waived the conflict?
A. Yes, we discussed that.
Q. He wanted you to continue to represent him?
A. Yes.
Q. And he did not – he did not voice any objection to you about
that?
A. No.
Id. at 41-42.
Finally, PCRA Counsel recalled Appellant, who unequivocally refuted
Trial Counsel’s testimony, stating “[t]hat never happened like that,” and “why
would I even say it’s okay?” Id. at 43. When PCRA Counsel asked Appellant
“what, if anything, [Trial Counsel told him] about a conflict he had with Mr.
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Berouty?” Appellant replied: “Nothing. There was nothing about a conflict. I
didn’t even know he had anything to do with Dave Berouty until I went to jail
. . .” Id. at 44.
However, when the Commonwealth questioned Appellant shortly
thereafter, noting that “the record is going to reflect this one way or the other
. . . I’m pretty sure your first answer . . . on direct . . . the word conflict was
in your answer,” Appellant stated:
I said he said something about maybe trying to – he may
have said something about trying to avoid a conflict or something.
I’m not sure.
Id. at 45.
At the close of testimony, the PCRA court, which had also presided at
Appellant’s jury trial in March 2017, specifically addressed Appellant, and
stated it “was going to take a look at all this, review the cases.” Id. at 51.
Thirteen days later, the PCRA court entered its order and opinion denying
relief. In rejecting Appellant’s ineffectiveness claim, the PCRA court first
summarized the law:
Our courts differentiate between a potential conflict and an
actual conflict and only grant relief in the latter instance, in which
case prejudice is presumed. See e.g., Commonwealth v.
Collins, 957 A.2d 237, 251 (Pa. 2008). To establish actual
prejudice, though, a defendant must prove two things: first, that
his attorney actively represented conflicting interests; and
second, that his attorney’s performance was adversely affected
because of it. Id. To establish that his and the other client’s
interests were actually in conflict, moreover, a defendant must
demonstrate that those interests diverged with respect to a
material factual or legal issue or to a course of action the attorney
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took of did not take as a result of the conflict. Id. [Appellant] has
established none of these things.
PCRA Court Opinion, 6/29/20, at 3.
Turning to the facts, the court continued:
[Trial Counsel]’s timely motions to withdraw from Berouty’s cases
in February of 2017 meant that no actual conflict developed
[between] him and [Appellant]. The charges then at issue for both
defendants were completely unrelated, and by the time the
Commonwealth filed the new charges against [Appellant] and
added Berouty as a witness, there was no dual representation.
Whereas Attorney Marshall cross-examined Berouty after he and
[Trial Counsel] had appropriately limited their communication
about [Appellant]’s case, moreover, it is apparent that [Trial
Counsel]’s former relationship with Berouty did not
adversely affect his performance at trial. [Appellant]’s claim
regarding the purported conflict is thus without merit, and he was
clearly not prejudiced by the potential conflict [Trial Counsel]
averted by withdrawing as Berouty’s counsel.
Id. (emphasis added).
Upon review, we discern no error where the record supports the PCRA
court’s factual findings, and case law supports its legal conclusions.
Accordingly, no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2021
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