Com. v. Harshman, R. ( 2015 )

J-S63044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD W. HARSHMAN,
Appellant No. 632 MDA 2014
Appeal from the PCRA Order March 11, 2014
in the Court of Common Pleas of Franklin County
Criminal Division at No.: CP-28-CR-0000851-2000
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED FEBRUARY 25, 2015
Appellant, Ronald W. Harshman, appeals from the court’s denial of his
counseled amended petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 We affirm in part, vacate in part, and
remand with instructions.
The PCRA court summarized the procedural history of this case as
follows:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
This case returns to us after remand. See Commonwealth v.
Harshman, No. 1644 MDA 2010, unpublished memorandum at *10 (Pa.
Super. filed Aug. 31, 2011).
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Appellant was convicted by jury of first[-]degree murder
on July 13, 2001 for the 1985 murder of [Melvin] Snyder.[2]
Appellant was sentenced that day to life in prison. Following
sentencing, Appellant appealed the judgment of sentence to the
Pennsylvania Superior Court, which affirmed [the trial c]ourt’s
judgment of sentence on October 11, 2002. [(See
Commonwealth v. Harshman, No. 100 MDA 2002,
unpublished memorandum at *1 (Pa. Super. filed Oct. 11,
2002)).] The Pennsylvania Supreme Court denied Appellant’s
[p]etition for [a]llowance of [a]ppeal without opinion on March 5,
2004. [(See Commonwealth v. Harshman, 40 A.3d 120 (Pa.
2012)).]
After exhausting his direct appeals[,] Appellant filed a
timely pro se [PCRA petition] on December 13, 2004. Counsel
was retained[,] who filed an [a]mended PCRA [p]etition on June
30, 2006. Evidentiary hearings were conducted on August 3,
September 10, December 17, 2009, September 6, 2012, and
March 28, 2013.
At the first evidentiary hearing held on August 3, 2009,
Appellant called only one witness, Walter Dill (“Dill”). Dill gave
testimony that he had contacted David Keller, Appellant’s trial
counsel, regarding his brother-in-law, Keith Granlun’s (Granlun)
testimony at Appellant’s trial. Appellant attempted to call two
more witnesses, Randi Kohr (“Kohr”) and Granlun[,] both of
who[m] testified against Appellant at his trial in 2001. The
averment made by Appellant in his [a]mended PCRA [p]etition
was that both men now wanted to recant their previous trial
testimony. However, after consulting with independent counsel
appointed by the [PCRA c]ourt[,] both men chose to invoke their
Fifth Amendment right against self-incrimination under the U.S.
Constitution[,] thereby offering no testimony at the PCRA
hearing.
____________________________________________
2
Snyder disappeared under suspicious circumstances after Appellant learned
that his wife, Teresa, was having an extramarital affair with Snyder.
Although at the time of his death, Snyder was no longer involved with
Teresa, Appellant blamed Snyder for ruining his marriage. Snyder was
declared dead upon the petition of his wife, Joan, in 1993. His body has
never been located. (See Harshman, 1644 MDA 2010, at *1; PCRA Court
Opinion, 3/11/14, at 5; PCRA Court Opinion, 6/10/14, at 1-2).
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As a result, PCRA counsel attempted to have a written
statement by Kohr and letters sent by Kohr to his then
girlfriend[,] Megin (Chilcote) Kohr[,] admitted into evidence over
the Commonwealth’s objections. The [PCRA c]ourt reserved
ruling on the admissibility of these exhibits and the proffered
testimony of several of Appellant’s other witnesses allowing
counsel time to submit briefs. After reviewing the briefs
submitted, the [PCRA c]ourt ruled that the proffered exhibits and
other witness testimony were inadmissible because they
constituted hearsay in violation of the Pennsylvania Rules of
Evidence.
At the evidentiary hearing held on September 10, 2009[,]
Appellant presented testimony of Megin (Chilcote) Kohr. She
testified regarding her understanding that a deal existed “that if
Randi [Kohr] would testify in the Harshman case that he
[Franklin County District Attorney Jack Nelson] would release[]
Randi.” She further testified that she spoke with District
Attorney Nelson and County Detective Mark Christman on
several occasions regarding Kohr’s release from prison. This
concluded the evidence presented by Appellant.
At the evidentiary hearing held on December 14, 2009[,]
the Commonwealth presented evidence through the testimony of
retired Franklin County Detective Mark Christman. Through his
testimony[,] letters written by District Attorney Nelson to the
Pennsylvania State Parole Board were admitted into evidence
without objection. Despite cross[-]examination by Appellant,
Detective Christman maintained that he was not aware of any
“deal” other than what was contained in the letters from District
Attorney Nelson. The letters evidenced a willingness by the
District Attorney to inform the State Parole Board in Harrisburg
of Kohr’s cooperation. The letters ask for the Board to take his
cooperation into consideration and “perhaps grant him an earlier
release date.” That concluded the evidence and the parties were
given an opportunity to submit briefs in support of their
positions. . . .
(PCRA Court Opinion, 6/10/14, at 3-5) (record citations and footnotes
omitted).
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The PCRA court denied Appellant’s claims on September 13, 2010.
Appellant timely appealed on October 6, 2010.3
On August 31, 2011, this Court affirmed the PCRA court’s denial of
Appellant’s requests to recuse the district attorney’s office and admit
hearsay evidence, and remanded “with respect to [the PCRA court’s] ruling
on the application of [Randi Kohr and Keith Granlun’s] right against self-
incrimination.” (Harshman, 1644 MDA 2010, at *12). Appellant’s
remaining challenges were not reached.
The PCRA court held evidentiary hearings on September 6, 2012 and
March 28, 2013, after the remand. On March 5, 2013, the court sustained
the Commonwealth’s objection to the admissibility of hearsay evidence, and
ultimately denied Appellant’s remaining PCRA claims on March 11, 2014.
Appellant timely appealed on April 8, 2014.4
Appellant raises the following issues for our review:
1. [Whether t]he [PCRA c]ourt erred by refusing to obey the
August 31, 2011 Superior Court remand Order by not allowing
[Appellant’s] counsel to ask specific questions of Randi Kohr, a
____________________________________________
3
Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement on November 1, 2010. The court entered its Rule 1925(a)
opinion on December 1, 2010. See Pa.R.A.P. 1925.
4
Pursuant to the court’s order, Appellant filed a timely Rule 1925(b)
statement on May 5, 2014, raising seven issues. The court entered its Rule
1925(a) opinion on June 10, 2014, addressing Appellant’s issues one, two,
three, and five; and incorporating by reference its opinions accompanying
the orders filed March 5, 2013, as it addressed issue six, and March 11,
2014, as it addressed issues four and seven. See Pa.R.A.P. 1925.
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witness who invoked his fifth amendment privilege, the specific
reason this matter was remanded to the [PCRA c]ourt[?]
2. [Whether t]he [PCRA c]ourt erred in not recognizing the
presence of an undisclosed deal between the Commonwealth and
witness Keith Granlun, a key Commonwealth witness, in which
the Commonwealth offered Mr. Granlun immediate release from
prison, early termination of his parole sentence, and remission of
all his fines and costs in excess of $1,300 in an unrelated matter
in exchange for his trial testimony against [Appellant?]
3. [Whether t]he [PCRA c]ourt erred in failing to apply the
legal standards to the presence of an undisclosed deal with a key
witness, by instead placing the emphasis of the presence of a
deal between the Commonwealth and Mr. Granlun on what
impact Mr. Granlun’s truthful testimony would have had on the
jury instead of the fact that such a deal existed and went
undisclosed to the jury[?]
4. [Whether t]he [PCRA c]ourt erred in its analysis that Mr.
Granlun’s trial testimony, had it been accurate, would not have
made a difference in the trial despite the fact that Mr. Granlun
was identified as a “key” witness by the Commonwealth in an
[o]rder to terminate Mr. Granlun’s parole early and remit all his
fines and costs in exchange for his testimony at trial, and despite
the fact that the Commonwealth went to great lengths at trial to
tell the jury that no such deal existed with Mr. Granlun or any
other witness[?]
5. [Whether t]he [PCRA c]ourt erred in not allowing a credible
witness, Walt Dill, to testify that he was aware at the time of
trial that Mr. Granlun’s testimony was false[?]
6. [Whether, i]n light of Mr. Granlun’s testimony, the [PCRA
c]ourt erred in not admitting into evidence contemporary and
corroborating evidence, physical and testimonial, that, Randi
Kohr, a key [trial] witness for the Commonwealth, who again
exercised his fifth amendment privilege, lied at [Appellant’s] trial
and that a deal existed between material witnesses and the
Commonwealth in exchange for testimony that was not disclosed
to trial counsel or the jury[?]
7. [Whether t]he [PCRA c]ourt erred in its analysis of the
ineffectiveness of trial counsel’s failure to interview Keith
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Granlun, a Commonwealth witness who requested to speak to
trial counsel prior to the trial to inform him that his and other
witness testimony was false[?]
(Appellant’s Brief, at unnumbered pages 4-5).5
Our standard of review is well-settled:
When reviewing the propriety of an order granting or
denying PCRA relief, this Court is limited to determining whether
the evidence of record supports the determination of the PCRA
court and whether the ruling is free of legal error. Great
deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the
certified record.
Commonwealth v. Rachak, 62 A.3d 389, 391 (Pa. Super. 2012), appeal
denied, 67 A.3d 796 (Pa. 2013) (citations omitted).
A PCRA petitioner is eligible for relief if the claim is cognizable under
the PCRA. See 42 Pa.C.S.A. § 9543(a). Cognizable claims include
constitutional violations, ineffective assistance of counsel that undermined
the truth-determining process, and subsequently available exculpatory
evidence that would have changed the outcome of the trial. See 42
Pa.C.S.A. § 9543(a)(2)(i), (ii), and (vi).
In his first issue, Appellant claims that a violation of his due process
rights occurred when the PCRA court refused to obey this Court’s remand
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5
We note for the benefit of counsel that Appellant’s brief materially fails to
comply with our Rules of Appellate Procedure. The prefatory pages of
Appellant’s brief are unnumbered. The pages are numbered starting at
“Argument for Appellant” as pages 1-43. See Pa.R.A.P. 2173. The length of
the brief exceeds thirty pages. See Pa.R.A.P. 2135. The cover page of the
brief fails to include counsel’s name, office address, and telephone number.
See Pa.R.A.P. 2172(a)(6).
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order and permit counsel to ask specific questions of witness, Randi Kohr, at
the September 6, 2012 evidentiary hearing. (See Appellant’s Brief at 7-11).
We agree.
The PCRA court explained the basis for its decision as follows:
. . . [Mr.] Kohr persisted with his invocation of the Fifth
Amendment protection against self-incrimination. We again
found that Kohr was entitled to blanket immunity from defense
counsel’s questioning. While the Superior Court ordered us to
allow individual questions and invocation of the Fifth Amendment
for each specific question, we respectfully disagree with the
Superior Court’s decision.
(PCRA Ct. Op., 6/10/14, at 7).
“It [is] the duty of the court below, on remand, to comply strictly with
our mandate and such compliance require[s] the court to proceed in a
manner consistent with the views expressed in our [memorandum] . . . .”
Commonwealth v. Tick, 246 A.2d 424, 425 (Pa. 1968) (citation and
footnote omitted).
Accordingly, in light of our previous conclusion, “that the PCRA court
abdicated its responsibility to evaluate objectively whether the witness had a
reasonable fear of incrimination in response to specific propounded
questions[,]” (Harshman, 1644 MDA 2010, at *10), and the court’s blatant
refusal to comply with our remand order, we must again vacate the PCRA
court’s order on this issue and remand for further proceedings.
In his second, third, and fourth issues, Appellant claims that a
violation of his due process rights occurred when the PCRA court failed to
recognize an undisclosed deal between the Commonwealth and witness,
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Keith Granlun; apply the legal standards to the deal; and recognize the
impact that the undisclosed deal could have had on the jury. (See
Appellant’s Brief at 11, 21, 29). These issues lack merit.
It is well-settled that an “appellant must establish that the
constitutional violation at issue so undermined the truth determining process
that no reliable adjudication of guilt or innocence could have taken place.”
Commonwealth v. Strong, 761 A.2d 1167, 1170-71 (Pa. 2000) (citations
omitted). Therefore, an appellant must demonstrate that: (1) an agreement
exists; and (2) the undisclosed information was material to the trial. See
id. at 1171-74.
Furthermore:
[a]ny implication, promise or understanding that the government
would extend leniency in exchange for a witness’s testimony is
relevant to the witness’s credibility. When the failure of the
prosecution to produce material evidence raises a reasonable
probability that the result of the trial would have been different if
the evidence had been produced, due process has been violated
and a new trial is warranted.
Commonwealth v. Burkhardt, 833 A.2d 233, 241 (Pa. Super. 2003) (en
banc), appeal denied, 847 A.2d 1277 (Pa. 2004) (citations omitted).
In this case, Appellant argues that Mr. Granlun’s PCRA testimony
established that he lied at Appellant’s trial and his false trial testimony “was
the result of a deal offered to him by the Commonwealth.” (Appellant’s
Brief, at 11). Specifically, he claims that “Mr. Granlun was promised to be
released from prison immediately if he testified against [Appellant], but if he
didn’t testify he was under the fear that he would remain in prison.” (Id. at
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18; see N.T. PCRA Hearing, 9/06/12, at 22-23, 25-26). Furthermore, Mr.
Granlun “testified that his parole would be terminated and any money he
owed from another case would be forgiven.” (Appellant’s Brief, at 19; see
N.T. PCRA Hearing, 9/06/12, at 22, 24-25, 36).
We note that “[r]ecantation testimony is one of the least reliable forms
of proof, particularly when it constitutes an admission of perjury.”
Commonwealth v. Padillas, 997 A.2d 356, 366 (Pa. Super. 2010), appeal
denied, 14 A.3d 826 (Pa. 2010) (citation and internal quotation marks
omitted).
Here, the PCRA court explained the basis for its decision as follows:
. . . [W]e find [Mr.] Granlun lacks credibility. . . . He either lied
at trial or at this [PCRA] hearing or at both. At the time of the
PCRA hearing, the statute of limitations had run[,] which would
prevent his conviction for any perjury charge resulting in no fear
of criminal prosecution even if [he] were lying. Furthermore,
[Mr.] Dill, Granlun’s own family member, testified to Granlun’s
lack of credibility. Dill stated that Granlun “was a hustler, that
he would sell his own mother if he got the opportunity to get his
way and I wouldn’t buy ten cents of what he said.” Therefore,
we do not believe Granlun’s testimony that he was offered a deal
in exchange for his testimony.
(PCRA Ct. Op., 6/10/14, at 11 (record citation omitted)). Upon review, we
agree and conclude that the record supports the court’s determination that
there was no undisclosed deal. Furthermore, we grant great deference to
the credibility determinations of the PCRA court. See Rachak, supra at
391.
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Moreover, even if a deal existed and it was material, Appellant fails to
prove how it would have changed the outcome of Appellant’s trial.
We note that “the Commonwealth . . . may sustain its burden by
means of wholly circumstantial evidence.” Commonwealth v. DiPanfilo,
993 A.2d 1262, 1264 (Pa. Super. 2010), appeal denied, 40 A.3d 120 (Pa.
2012) (citation omitted).
Here, the record reflects that the jury could have found Appellant
guilty based on Mr. Kohr’s testimony and a plethora of circumstantial
evidence.
. . . [T]he jury heard evidence that [Appellant] previously
crashed his car into Snyder’s vehicle and fired two gunshots at
him, missing him both times. [Appellant] informed people that
he would seek revenge against Snyder for ruining his marriage.
Within days of receiving divorce papers from his wife,
[Appellant] purchased a .25 caliber pistol. On May 25, 1985,
Snyder had disappeared. His gardening tools were strewn about
the garden in atypical fashion, suggesting a disturbance.
Neighbors reported seeing a brown pickup truck at the Snyder
residence. A .25 caliber pistol shell casing was found in the
Snyder barn. Several days later, the same neighbors noticed the
same brown pickup truck at [Appellant’s] residence. Snyder’s
truck was found in Maryland with all of his personal belongings,
and was wiped clean of fingerprints. Years later, in 1999, after
[Appellant] had moved, [his] property was searched and a .25
caliber pistol shell casing was found. It was determined that the
gun that shot this round was the same gun that shot the shell
found at the Snyder residence.
(PCRA Court Opinion, 3/11/14, at 5).
Accordingly, the record supports the PCRA court’s denial of relief on
these claims.
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In his fifth issue, Appellant claims that the PCRA court erred in
prohibiting witness, Walt Dill, from testifying that he was aware that Mr.
Granlun’s trial testimony was false. (See Appellant’s Brief, at 32). This
issue lacks merit.6
It is well[-]settled that the admission or rejection of [witness
testimony] is within the sound discretion of the trial court. An
abuse of discretion will not be found based on a mere error of
judgment, but rather exists where the court has reached a
conclusion [that] overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.
Commonwealth v. Davido, 2014 WL 7182086, at *28 (Pa. filed Dec. 15,
2014) (citations and quotation marks omitted).
Here, the PCRA court explained:
Dill testified a second time at the second PCRA hearing on
September 6, 2012. At this hearing Dill testified to the same
thing, i.e., that Granlun wanted him to contact Appellant’s trial
counsel to tell trial counsel to go to the Franklin County Jail to
talk with [Granlun] about the trial. He also testified that: “I told
[trial counsel David Keller] that my brother-in-law told me that
there was a bunch of guys going to lie at the trial and he wanted
him to come down to ask him to help him out or whatever.” This
testimony, which was not objected to by the Commonwealth,
seems to infer exactly what Appellant claims that we disallowed
in error. That testimony suggests that Dill was aware that at the
time of trial that Granlun’s testimony was false.
(PCRA Ct. Op., 6/10/14, at 15 (record citation omitted)).
____________________________________________
6
We note that we could find this issue waived for Appellant’s failure to
provide a specific reference to the record where the issue was preserved.
(See Appellant’s Brief, at 32-34); see also Pa.R.A.P. 2117(c), 2119(e).
However, because we can discern his argument and conduct meaningful
appellate review, we will review the issue on its merits.
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Additionally, although our independent review of the record reflects
that the court prohibited Mr. Dill from answering certain questions, this was
not an abuse of discretion. For example, the court precluded an answer to
the following question: “And did [Granlun], in fact, confide in you that he
had testified falsely at trial?” (N.T. PCRA Hearing, 9/06/12, at 57).
Specifically, the court found that Dill’s testimony constituted hearsay and did
not qualify as a statement against interest because Mr. Granlun was
available to testify and did testify as to what he told Dill. (See id. at 57-
58). The court further prohibited Mr. Dill from answering the following
question on the basis that it was irrelevant: “[D]id you form a belief as to
whether [Granlun] had told the truth or not [at Appellant’s trial]?” (Id. at
58; see id. at 58-59).
Accordingly, we find no abuse of discretion and the record supports the
PCRA court’s denial of relief on this claim.
In his sixth issue, Appellant claims that, in light of Mr. Granlun’s
testimony and Mr. Kohr’s continued assertion of his right not to incriminate
himself, the PCRA court erred in excluding corroborating evidence that Mr.
Kohr lied at Appellant’s trial in exchange for a deal with the Commonwealth.
(See Appellant’s Brief at 34-35). This issue lacks merit.
It is well-settled that “[a]n issue has been previously litigated if the
highest appellate court in which the petitioner could have had review as a
matter of right has ruled on the merits of the issue.” Davido, supra at *5
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(citations and internal quotation marks omitted); see also 42 Pa.C.S.A. §§
9543(a)(3) and 9544(a).
In the October 6, 2010 PCRA appeal, Appellant unsuccessfully
challenged the exclusion of corroborating evidence that witnesses lied at trial
and undisclosed deals existed with the Commonwealth in exchange for their
testimonies. (See Harshman, 1644 MDA 2010, at 5-8). In the instant
PCRA appeal, Appellant, in light of Mr. Granlun’s testimony, challenges that
same corroborating evidence as it relates to Mr. Kohr. (See Appellant’s
Brief, at 34-35). However, “a PCRA petitioner cannot obtain additional
review of previously litigated claims by presenting new theories of relief[.]”
Davido, supra at *12. Here, the record reflects that the present claim is
not sufficiently distinct to avoid the prior litigation bar.
Furthermore, this Court has concluded that the “proffered testimony
[was not] corroborated by circumstances indicating its trustworthiness. . . .
[and] none of the proffered evidence qualified for the statement against
interest exception.” (Harshman, 1644 MDA 2010, at 8) (internal quotation
marks omitted).
Accordingly, because Appellant has previously litigated this issue, we
conclude that the PCRA court properly precluded the proffered evidence.
See Davido, supra at *12. Appellant’s sixth issue lacks merit.
In his final issue, Appellant claims that he received ineffective
assistance of counsel for counsel’s failure to interview Mr. Granlun. (See
Appellant’s Brief at 36-41). Specifically, Appellant argues that counsel failed
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to “follow through on making sure he met with Mr. Granlun” when he was
informed that “all the jailhouse testimony was a lie and that there was an
undisclosed deal for [his] testimony.” (Id. at 36). We disagree.
It is well-settled that “[a] criminal defendant has the right to effective
counsel . . . during trial.” Commonwealth v. Rathfon, 899 A.2d 365, 369
(Pa. Super. 2006) (citation omitted). Counsel is presumed effective, and an
appellant bears the burden to prove otherwise. See Commonwealth v.
Bennett, 57 A.3d 1185, 1195 (Pa. 2012). A PCRA petitioner must
demonstrate that counsel’s performance was deficient and that such
deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668,
687 (1984). Pennsylvania has further refined the Strickland test into a
three-prong inquiry. An appellant must demonstrate that: (1) his underlying
claim is of arguable merit; (2) counsel had no reasonable strategic basis for
his action or inaction; and (3) the appellant suffered actual prejudice as a
result. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). A
failure to satisfy any prong of the ineffective assistance of counsel test will
require rejection of the claim. See Commonwealth v. Spotz, 84 A.3d 294,
311 (Pa. 2014). Moreover, deference is given to the PCRA court’s credibility
determination if supported by the record. See Spotz, supra at 312-13.
At Appellant’s PCRA hearing, his trial counsel testified that Mr. Dill
contacted him and “wanted to know if [he] could help Granlun. . . .
[because] Granlun was in over his head and didn’t really know what to do[.]”
(N.T. PCRA Hearing, 3/28/13, at 35). Counsel further stated that he “went
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to Franklin County Prison on July 7[, 2001,] which would have been a
Saturday, two days before trial[,] . . . [t]o try to talk to Granlun.” (Id.).
Trial counsel was unable to speak with Granlun but could not recall a reason.
(See id. at 36). However, counsel indicated that, at Appellant’s trial, he
cross-examined Granlun about conflicting statements he made to
Pennsylvania State Police Trooper Nicolas Bloschichak in October 2000 and
Franklin County Detective Mark Christman in December 2000 related to his
trial testimony. (See id. at 36-38). Any reasonable basis for the course of
action selected proves effectiveness, not a hindsight evaluation to determine
the best strategic alternative. See Commonwealth v. Charleston, 94
A.3d 1012, 1027 (Pa. Super. 2014), appeal denied, __ A.3d __ (Pa. filed
Dec. 23, 2014).
Therefore, we conclude that the PCRA court properly found that
Appellant failed to meet his burden of pleading and proving all three prongs
of the Pierce test for ineffective assistance of counsel and his final issue
lacks merit.
Order affirmed in part, vacated in part, and remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2015
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