Com. v. McDowell, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL MCDOWELL :
:
Appellant : No. 28 EDA 2022
Appeal from the PCRA Order Entered December 14, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004138-2016
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 18, 2023
Appellant, Michael McDowell, appeals from the order entered on
December 14, 2021, which dismissed his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We vacate and
remand.
A prior panel of this court summarized the facts underlying Appellant’s
convictions:
On January 19, 2016, in the mid-afternoon, a truck owned by
Appellant's friend, Sean Fishgold, rear-ended a vehicle driven
by Augustine Swaray, on the 7300 block of Torresdale
Avenue in . . . Philadelphia. The truck hit Swaray's car with
such force [that Swaray’s vehicle] struck a tree and another
parked vehicle.
Swaray was unable to identify the truck's driver either before
or during trial, although he did narrow down a double blind
photo array to two photographs, one of which was
Appellant's. Approximately one week after the accident,
Swaray gave a description of the driver to the police.
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At trial, Swaray was unable to recall the description. During
cross-examination, defense counsel read this description to
Swaray which included the information Appellant was
wearing[] a “short-sleeved shirt” which was “white.” Mr.
Swaray affirmed the shirt color and the shirt was a t-shirt but
never confirmed the sleeve-length. Defense counsel did not
question Swaray as to whether the driver had any tattoos on
his arms. Swaray was not injured as a result of the accident,
although his car suffered $800.00 worth of damage.
After hitting Swaray's car, the truck attempted to leave the
scene, drove directly into the opposing lane of traffic and
struck a vehicle driven and owned by Michelle Hunter
head-on, totaling it. The [truck’s] driver attempted to
extricate his vehicle from hers but was unsuccessful, and he
fled the scene on foot.
Michelle Hunter was the only witness to identify Appellant.
She gave a description of Appellant to the police, selected his
photo from a double blind array, and identified him both at
the preliminary hearing and at trial. [Ms.] Hunter described
Appellant as wearing a white t-shirt but never mentioned and
was never questioned about the length of the sleeves.
Defense counsel did not question her about any tattoos she
might have observed on Appellant's arms.
While searching [the truck], the police found the operating
keys on a ring with multiple gym passes; all of the passes
belonged to Appellant. The police were able to determine
Fishgold was at the gym at the time of the accident.
[Fishgold] admitted to the police Appellant was a friend and
fellow roofer who had borrowed the truck on at least one
previous occasion.
As a result of the car accident, [Ms.] Hunter . . . said she had
to attend cognitive brain therapy, was unable to walk or
“function correctly” for two weeks, was unable to work for
four to five months, could not care for her children for three
weeks, and was unable to drive a car for six months. [At
trial,] defense counsel stipulated to the admission of Hunter's
medical records and [further stipulated] that
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. . . the medical records indicate that Michelle Hunter was
admitted to Aria Torresdale Hospital 3:11 p.m. on January
[19], 2016. She received among other things a CT scan
of her head where the doctors found trauma, soft tissue
damage and swelling in her frontal brain area.
[Ms.] Hunter was diagnosed with a closed head wound, a
contusion to her forehead and trauma to her brain. She
was discharged from the hospital later that night.
At trial, Appellant did not present any evidence regarding
either the length of his shirt sleeves or whether he had
tattoos on his arms at the time of the accident, two years
earlier. Immediately prior to closing, Appellant sua sponte
began to disrobe because he wanted the jury to see his
tattooed arms. However, when the trial court asked defense
counsel if he wanted to put on rebuttal evidence regarding
the tattoos, counsel declined. The trial court did permit the
jury to view Appellant in short sleeves with no testimony.
Appellant called two witnesses on his behalf, a co-worker,
Shawn Rooney, who testified he believed Appellant was at
work with him at the time of the accident. Appellant also
called Fishgold, who testified Appellant had not borrowed the
truck from him that day and thought Appellant had left his
gym passes in the truck earlier.
On June 13, 2018, the jury convicted Appellant of aggravated
assault, [accidents involving death or personal injury,
accidents involving damage to attended vehicle or property,
and aggravated assault by vehicle].[1]
Commonwealth v. McDowell, 239 A.3d 43, **1-2 (Pa. Super. 2020)
(non-precedential decision).
On August 31, 2018, the trial court sentenced Appellant to serve an
aggregate term of eight to 16 years in prison, followed by five years of
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1 18 Pa.C.S.A. § 2702(a)(1) and 75 Pa.C.S.A. §§ 3742(a), 3743(a), and
3732.1(a), respectively.
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probation, for his convictions. N.T. Sentencing, 8/31/18, at 20-21. On July
2, 2020, this Court affirmed Appellant’s judgment of sentence and, on
November 24, 2020, the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. McDowell, 239 A.3d 43(Pa. Super. 2020) (non-precedential decision), appeal denied, 242 A.3d 309(Pa. 2020).
On February 10, 2021, Appellant filed a timely, counseled PCRA petition.
In the petition, Appellant claimed that his convictions and sentences for
aggravated assault and aggravated assault by vehicle should be vacated as
those convictions were obtained in violation of his due process rights. With
respect to this issue, Appellant claimed that his convictions were based upon
“false evidence, i.e., an erroneous stipulation to [Ms. Hunter’s] injuries.” To
support this claim, Appellant attached Ms. Hunter’s medical records from Aria
Health Torresdale Hospital as well as a report prepared by Brian D. Greenwald,
M.D., the Medical Director of Center for Brain Injuries and the Associate
Medical Director of JFK-Johnson Rehabilitation Institute.
At the outset, during trial, Appellant and the Commonwealth stipulated
to the following:
the medical records indicate that Michelle Hunter was
admitted to Aria Torresdale Hospital [at] 3:11 p.m. on
January [19, 2016]. She received among other things a CT
scan of her head where the doctors found trauma, soft tissue
damage and swelling in her front brain area.
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Ms. Hunter was diagnosed with a closed head wound, a
contusion to her forehead and trauma to her brain. She was
discharged from the hospital that night.
N.T. Trial, 6/12/18, at 191-192.
Notwithstanding the stipulation agreed to by counsel for the parties,
Appellant claimed that Ms. Hunter’s medical records did not indicate that she
suffered “swelling in her front brain area” or “trauma to her brain.” See id.To support this claim, Appellant attached Ms. Hunter’s medical records to his
petition. These medical records declared that, following the collision, Ms.
Hunter was diagnosed with the following: closed head injury, contusion of
head, laceration, MVC (motor vehicle collision), and elevated creatine kinase.
Ms. Hunter’s Discharge Instructions, 1/19/16, at 1. Further, Appellant
attached the summary of a CT scan of Ms. Hunter’s head. The summary
declared that Ms. Hunter suffered “midline frontal soft tissue swelling” and a
“[s]oft tissue injury.” Ms. Hunter’s CT Summary, 1/19/16, at 1.
Appellant also attached Dr. Greenwald’s report to his PCRA petition.
Within the report, Dr. Greenwald declared that he reviewed the trial court
record, including the trial transcript and Ms. Hunter’s medical records. Dr.
Greenwald Report, 12/27/20, at 1. Dr. Greenwald opined:
1. The stipulation regarding Ms. Hunter’s medical records that
was read by the prosecutor and agreed to by [Appellant’s
counsel] was an incorrect summary of the medical records
admitted into evidence at trial. Specifically, the CT scan of
the head showed soft tissue damage (swelling of the
forehead), but no evidence of swelling in the frontal brain
area. Additionally, the records did not reflect that Ms. Hunter
was diagnosed with trauma to the brain.
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2. Based on the emergency room records admitted into
evidence at trial, it cannot be said within a reasonable degree
of medical certainty that Ms. Hunter suffered a concussion,
traumatic brain injury, brain swelling and/or trauma to her
brain.
3. Taken together, the medical records admitted into
evidence at trial and Ms. Hunter’s testimony, it cannot be said
within a reasonable degree of medical certainty that Ms.
Hunter suffered a concussion, traumatic brain injury, brain
swelling and/or trauma to her brain.
Dr. Greenwald Report, 12/27/20, at 2-3.
Dr. Greenwald declared that his opinions were “given to a reasonable
degree of medical certainty” and that, if he “had been retained as an expert
witness at the time of [Appellant’s] trial, [he] would have been willing and
able to testify consistently with the conclusions set forth above.” Id. at 3.
Within Appellant’s PCRA petition, Appellant also claimed that his trial
counsel (hereinafter “Trial Counsel”) was ineffective for: “stipulat[ing] to
injuries that were not supported by the medical evidence or testimony;”
“fail[ing] to secure and/or present the testimony of an expert witness” who
“would have explained to the jury that neither the medical records nor the
victim’s testimony would support a finding that Ms. Hunter suffered a
concussion, traumatic brain injury, brain swelling and/or trauma to her brain;”
and, “fail[ing] to object to inadmissible evidence [regarding Appellant’s gym
tags] that undercut [Appellant’s] identification defense.” PCRA Petition,
2/10/21, at 4.
On March 17, 2021, Appellant filed an amended PCRA petition, where
he claimed that he recently received a recorded telephone conversation
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between Joseph Hunter, who was Ms. Hunter’s husband (hereinafter “Ms.
Hunter’s Husband”), and an agent for Liberty Mutual Insurance. The
conversation occurred one day after the accident and, during the telephone
call, the following exchange occurred:
[Liberty Mutual]: Okay. Did we get the other person’s
insurance information?
[Ms. Hunter’s Husband]: No. My wife got rushed to the
emergency room. He ran. I have police reports though.
They knew, they knew, I don’t know if they locked him up
yet, but they knew who did it. I know who did it. It’s in
(unintelligible) the police report. He better hope the cops get
him before I do, though, that’s all I can say for real.
Amended PCRA Petition, 3/17/21, at 2 (footnote omitted).
Appellant declared that the police report identified him as a suspect and
he claimed that the above, after-discovered evidence “tend[s] to prove that
investigators, whether wittingly or unwittingly, provided Ms. Hunter and/or
her husband with the name of their prime suspect as early as one day after
the accident.” Id. at 3. Appellant surmised that Ms. Hunter could have
searched for his name on social media and viewed photographs of him on the
internet. Thus, according to Appellant, “[t]here can [] be no confidence that
Ms. Hunter identified the person she saw crash into her rather than
[Appellant], the suspect she learned about from the police crash report.” Id.
Appellant requested that the PCRA court grant him a new trial. Id. at 5.
Appellant filed a second amended PCRA petition on March 25, 2021.
Within this petition, Appellant alleged he recently uncovered evidence that Ms.
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Hunter made a claim to Shawn Fishgold’s car insurance carrier, State Farm
Insurance, for the bodily injury policy limits. Appellant claimed that the
demand letter sent to State Farm on Ms. Hunter’s behalf declared “that Ms.
Hunter sustained a traumatic brain injury and relie[d] upon the discharge
paperwork from [the emergency room] as proof of this diagnosis.” Second
Amended PCRA Petition, 3/25/21, at 1-2. Appellant further claimed that State
Farm tendered the $50,000.00 policy limit to Ms. Hunter. Id. According to
Appellant, the above evidence tends to show that Ms. Hunter had a monetary
“reason[] to offer false testimony to embellish the nature of her injuries,
implicate [Appellant,] and otherwise refrain from being completely honest
during trial.” Id. at 3. Appellant thus requested that the PCRA court grant
him a new trial. Id.
On November 2, 2021, the PCRA court provided Appellant with notice
that it intended to dismiss his petition in 20 days, without holding a hearing,
as the issues raised in the petition were meritless. PCRA Court Notice,
11/2/21, at 1; see also Pa.R.Crim.P. 907(1). The PCRA court finally
dismissed Appellant’s petition on December 14, 2021 and Appellant filed a
timely notice of appeal. Appellant numbers four claims on appeal:
1. Whether the PCRA court erred in dismissing [Appellant’s]
petition for post-conviction relief without an evidentiary
hearing where [Appellant] produced credible, uncontroverted
medical evidence tending to show that the prosecutor and
defense counsel stipulated to injuries that the complaining
witness did not in fact sustain, all of which violated
[Appellant’s] Sixth Amendment right to counsel and his
Fourteenth Amendment right to Due Process?
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2. Whether the PCRA court erred in dismissing [Appellant’s]
petition for post-conviction relief without an evidentiary
hearing where [Appellant] established his right to relief under
Strickland v. Washington, 466 U.S. 668 (1984) and
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987) by
pleading and proving that defense counsel was ineffective
insofar as he failed to retain a neurologist to ensure that he
understood the medical evidence and that the medical
evidence was accurately presented to the jury?
3. Whether the PCRA court erred in dismissing [Appellant’s]
petition for post-conviction relief as trial counsel was
ineffective for failing to object to inadmissible testimony
regarding the gym tags found in the vehicle driven by the
suspect insofar as the testimony concerned a crucial issue in
the case and violated the best evidence rule and the rule
against hearsay?
4. Whether the PCRA court erred in dismissing [Appellant’s]
petition for post-conviction relief without an evidentiary
hearing where [Appellant] uncovered and presented new
evidence from insurance claims files which, if presented to
the jury, would have both supported [Appellant’s] defense of
misidentification and called into question the veracity,
sincerity and accuracy of the complaining witness’ trial
testimony, thereby warranting the grant of a new trial?
Appellant’s Brief at 9-10.2
“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (citations omitted).
A PCRA petitioner is not automatically entitled to an evidentiary hearing
on his petition. A PCRA petition may be dismissed without a hearing if the
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2 For ease of discussion, we have renumbered Appellant’s claims on appeal.
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PCRA court “is satisfied from [its review of the petition] that there are no
genuine issues concerning any material fact and that the [petitioner] is not
entitled to post-conviction collateral relief, and no purpose would be served
by any further proceedings.” Pa.R.Crim.P. 907(1). However, when the PCRA
petition raises material issues of fact, the PCRA court “shall order a hearing.”
Pa.R.Crim.P. 908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision
to dismiss a petition without a hearing, an appellant must show that he raised
a genuine issue of fact which, if resolved in his favor, would have entitled him
to relief, or that the court otherwise abused its discretion in denying a
hearing.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011)
(quotation marks and citations omitted).
Within Appellant’s first issue on appeal, Appellant contends he is entitled
to an evidentiary hearing on his claim that “the prosecutor and defense
counsel stipulated to injuries that the complaining witness did not in fact
sustain,” thus violating both Appellant’s Fourteenth Amendment right to due
process and Sixth Amendment right to counsel. Appellant’s Brief at 9. We
will address Appellant’s two subclaims separately.
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is a “violation of the Constitution of this
Commonwealth or the Constitution or laws of the United States which, in the
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circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(i). Further, the petitioner must also plead
and prove “[t]hat the allegation of error has not been . . . waived.” 42
Pa.C.S.A. § 9543(a)(3). Under the PCRA, “an issue is waived if the petitioner
could have raised it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S.A.
§ 9544(b).
“The Fourteenth Amendment guarantees that no state ‘shall . . . deprive
any person of life, liberty, or property without due process of law.’”
Commonwealth v. Fears, 250 A.3d 1180, 1193 (Pa. 2021), quoting U.S.
Const. XIV, Sec. 1. In opinions spanning from Mooney v. Holohan, 294 U.S.
103 (1935) to Napue v. Illinois, 360 U.S. 264 (1959), the United States
Supreme Court “made clear that deliberate deception of a court and jurors by
the presentation of known false evidence is incompatible with rudimentary
demands of justice. . . . [T]he same result obtains when the State, although
not soliciting false evidence, allows it to go uncorrected when it appears.”
Giglio v. United States, 405 U.S. 150, 153 (1972) (quotation marks and
citations omitted). “Thereafter, Brady v. Maryland, 373 U.S. [83 (1963),]
held that suppression of material evidence justifies a new trial irrespective of
the good faith or bad faith of the prosecution.” Giglio, 405 U.S. at 153.
Although it is now well settled that the Fourteenth Amendment forbids
the presentation of false evidence and the concealment of exculpatory
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evidence, the Pennsylvania Supreme Court has held that claims grounded in
Brady and Napue are subject to waiver under the PCRA. Commonwealth
v. Cousar, 154 A.3d 287, 301-302 (Pa. 2017) (holding: “Brady claims . . .
may be subject to waiver” under the PCRA); Commonwealth v. Pruitt, 162
A.3d 394, 403-404 (Pa. 2017) (holding: under the PCRA, the petitioner waived
his claims that the Commonwealth presented “false and misleading testimony”
where the underlying information “was known (or, at the very least, should
have been known) to [trial] counsel” and where trial counsel “could have
presented at trial precisely the same challenges as [were] reflected” at the
PCRA stage).
Here, Appellant claims that the Commonwealth violated his due process
rights when, through a stipulation, the Commonwealth presented false
evidence that Ms. Hunter’s medical records indicated she suffered from
“swelling in her front brain area” and “trauma to her brain.” See Appellant’s
Brief at 22. Appellant’s due process claim is waived under the PCRA, as he
“could have raised [the claim] but failed to do so” at trial and on direct appeal.
42 Pa.C.S.A. § 9544. To be sure, Appellant’s due process claim is based
entirely upon a reevaluation of Ms. Hunter’s medical records. Specifically, the
Commonwealth presented to the jury a stipulation which said that Ms.
Hunter’s medical records indicated she suffered from “swelling in her front
brain area” and “trauma to her brain.” In fact, Ms. Hunter’s medical records
do not declare that she sustained those injuries. Instead, the medical records
declared that Ms. Hunter suffered a “[s]oft tissue injury” to her head and was
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diagnosed with: closed head injury, contusion of head, laceration, MVC
(motor vehicle collision), and elevated creatine kinase. Ms. Hunter’s
Discharge Instructions, 1/19/16, at 1.
Ms. Hunter’s medical records were available to Appellant during the
entirety of the trial and on direct appeal. Therefore, to paraphrase the
Pennsylvania Supreme Court, we conclude that since the underlying
“information was known (or, at the very least, should have been known) to
[Trial C]ounsel, [Trial Counsel] apparently could have presented at trial
precisely the same challenges as are reflected in the present briefing. As such,
we find the instant claim to be unpreserved in its entirety.” Pruitt, 162 A.3d
at 404.
Appellant’s second subclaim contends that Trial Counsel was ineffective
when he stipulated to a factually incorrect summary of Ms. Hunter’s medical
records.3 Appellant’s Brief at 31.
The PCRA provides an avenue for relief where the petitioner is able to
plead and prove by a preponderance of the evidence the “[i]neffective
assistance of counsel which, in the circumstances of the particular case, so
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3 Although we conclude that Appellant’s due process claim was waived under
the PCRA, Appellant’s ineffective assistance of counsel claim is proper in this
context, as “an ineffective assistance of counsel claim is a separate legal issue
distinct from the underlying substantive claim for which counsel allegedly had
provided ineffective assistance.” Commonwealth v. Derk, 913 A.2d 875,
883 n.6 (Pa. Super. 2006).
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undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead
and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
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probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted). “A failure to satisfy any prong of the test
for ineffectiveness will require rejection of the claim.” Id.According to Appellant, Trial Counsel was ineffective when he stipulated
to a factually incorrect summary of Ms. Hunter’s medical records. See
Appellant’s Brief at 22 and 31. Further, Appellant contends that the PCRA
court erred when it dismissed his petition without granting him a hearing on
this claim. Id. at 32. The Commonwealth agrees that the PCRA court erred
when it refused to grant Appellant an evidentiary hearing on his ineffective
assistance claim. Commonwealth’s Brief at 12. We agree with Appellant and
the Commonwealth and conclude that the PCRA court erred when it failed to
grant Appellant an evidentiary hearing on his claim that Trial Counsel was
ineffective when counsel stipulated to a factually incorrect summary of Ms.
Hunter’s medical records. Therefore, we vacate the PCRA court’s order and
remand for an evidentiary hearing on Appellant’s ineffective assistance claim.
As explained above, at trial, Appellant and the Commonwealth
stipulated to the following:
the medical records indicate that Michelle Hunter was
admitted to Aria Torresdale Hospital [at] 3:11 p.m. on
January [19, 2016]. She received among other things a CT
scan of her head where the doctors found trauma, soft tissue
damage and swelling in her front brain area.
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Ms. Hunter was diagnosed with a closed head wound, a
contusion to her forehead and trauma to her brain. She was
discharged from the hospital that night.
N.T. Trial, 6/12/18, at 191-192.
However, and contrary to the above stipulation, Ms. Hunter’s medical
records do not declare that “a CT scan of [Ms. Hunter’s] head” found “swelling
in her front brain area” or that she was diagnosed with “trauma to her brain.”
See id. Rather, the CT scan revealed that Ms. Hunter suffered “[s]oft tissue
injury” and “midline frontal soft tissue swelling” to her head. Ms. Hunter’s CT
Summary, 1/19/16, at 1. Further, Ms. Hunter was diagnosed with: closed
head injury, contusion of head, laceration, MVC (motor vehicle collision), and
elevated creatine kinase. Ms. Hunter’s Discharge Instructions, 1/19/16, at 1.
Moreover, as Dr. Greenwald opined:
The stipulation regarding Ms. Hunter’s medical records that
was read by the prosecutor and agreed to by [Appellant’s
counsel] was an incorrect summary of the medical records
admitted into evidence at trial. Specifically, the CT scan of
the head showed soft tissue damage (swelling of the
forehead), but no evidence of swelling in the frontal brain
area. Additionally, the records did not reflect that Ms. Hunter
was diagnosed with trauma to the brain.
Dr. Greenwald Report, 12/27/20, at 2.
Appellant’s petition thus creates a genuine issue of material fact that his
underlying claim – that Trial Counsel stipulated to a factually incorrect
summary of Ms. Hunter’s medical records – has arguable merit.
The second prong of an ineffective assistance of counsel claim asks
whether counsel had a reasonable basis for his action. With respect to this
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prong, Appellant pleaded facts tending to show that, as a result of the
stipulation, the jury was led to believe that Ms. Hunter’s injuries were more
severe than they actually were. Thus, Appellant’s petition creates a genuine
issue of material fact as to whether Trial Counsel had a reasonable basis for
entering into the stipulation.
Finally, Appellant must demonstrate that he was prejudiced by Trial
Counsel’s alleged errors. As to this element, we note that Appellant was
convicted of aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) and
aggravated assault by vehicle under 75 Pa.C.S.A. § 3732.1(a). See
Commonwealth’s Information, 5/3/16, at 1-3; see also N.T. Trial, 6/13/18,
at 86-95. Both convictions required the Commonwealth to prove that
Appellant caused Ms. Hunter “serious bodily injury.”4, 5 “Serious bodily injury”
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4 Aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) is statutorily defined as
follows: “A person is guilty of aggravated assault if he: (1) attempts to cause
serious bodily injury to another, or causes such injury intentionally, knowingly
or recklessly under circumstances manifesting extreme indifference to the
value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Nevertheless, at trial, the
trial court instructed the jury:
So let’s start at the top. Aggravated assault, victim Michelle
Hunter, causing serious bodily injury. [Appellant] is charged with
this count of aggravated assault. In order to find [Appellant]
guilty of this offense, you must find each of the following elements
proven beyond a reasonable doubt: Number one, that
[Appellant] caused serious bodily injury.
N.T. Trial, 6/13/18, at 86 (emphasis added).
5 Aggravated assault by vehicle is defined in the following manner:
(Footnote Continued Next Page)
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is defined as “[b]odily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ.” 18 Pa.C.S.A. § 2301.
As this Court has held, a bodily injury that impairs the function of the
brain, such as a concussion, “is sufficient evidence of ‘serious bodily injury’
under 18 Pa.C.S.A. § 2301.” Commonwealth v. Santiago, 294 A.3d 482,
486 (Pa. Super. 2023) (holding: “concussing someone during an assault is
sufficient evidence of ‘serious bodily injury’ under 18 Pa.C.S.A. § 2301, as a
matter of law”). However, we have held that a “bump on the head” is
insufficient to qualify as a “serious bodily injury.” Commonwealth v.
Benaglio, 385 A.2d 544, 546 (Pa. Super. 1978) (holding: where the victim
was punched once in the forehead during a robbery, resulting in a “bump on
the head,” the injury was insufficient to constitute “serious bodily injury” and,
thus, the evidence was insufficient to prove that the defendant committed
aggravated assault).
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Any person who recklessly or with gross negligence causes serious
bodily injury to another person while engaged in the violation of
any law of this Commonwealth or municipal ordinance applying to
the operation or use of a vehicle or to the regulation of traffic,
except section 3802 (relating to driving under influence of alcohol
or controlled substance), is guilty of aggravated assault by
vehicle, a felony of the third degree when the violation is the cause
of the injury.
75 Pa.C.S.A. § 3732.1(a).
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Here, Appellant’s petition creates a genuine issue of material fact as to
whether he was prejudiced by Trial Counsel’s alleged errors. As stated above,
aggravated assault requires proof that, inter alia, Appellant either caused or
attempted to cause serious bodily injury and aggravated assault by vehicle
also requires proof that, inter alia, Appellant caused serious bodily injury. In
his petition, Appellant pleaded facts tending to show that the stipulation
essentially foreclosed any potential argument that Ms. Hunter did not actually
suffer “serious bodily injury” in the form of the “impairment of the function of”
her brain, as Trial Counsel stipulated that Ms. Hunter suffered “swelling in her
front brain area” and “trauma to her brain.” Certainly, during the
Commonwealth’s closing argument, the Commonwealth emphasized this
point:
[The Commonwealth]: So what we agree about is pretty
much everything. We agree there was an accident that day.
We agree the accident was caused by someone driving Mr.
Fishgold’s truck. We agree about the injuries and we
stipulated. I’m surprised to hear [Appellant’s] counsel now
going back and trying to say no, it really wasn’t that bad. We
stipulated that she had a [] traumatic brain injury. She had
swelling to the front of her brain. It was weeks before she
went back to work, before she could take care of her kids,
months before she could drive again. But I’ll get to that.
But another way of saying what we agree on is this: Whoever
it was that day who drove the truck, did the two hit and runs
and hit [Ms.] Hunter, whoever that was is guilty of
aggravated assault, aggravated assault by vehicle and the
two hit and runs. So we do agree on that.
...
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So I’ll end with, I got to talk to you about the law. . . . [To
prove aggravated assault by vehicle, the Commonwealth has
to prove] four elements. . . . Third element, that Michelle
Hunter suffered serious bodily injury. Apparently,
[Appellant’s] counsel doesn’t agree on this, which surprises
me. I’ll talk about that a little bit more. Suffice it to say,
traumatic brain injury is a serious bodily injury.
Here's the definition of serious bodily injury, just while we’re
on it. Serious bodily injury means any bodily injury that
creates a substantial risk of death or causes serious,
permanent disfigurement or protracted loss or impairment of
the function of any bodily member or organ.
Like, say you had brain damage. You had swollen. You
weren’t able to take care of your kids or drive or go to work
for a while. The brain, you know, traumatic brain injury is
serious bodily injury.
So that’s third. Check.
N.T. Trial, 6/13/18, at 45-46 and 60-61.
Therefore, we conclude that Appellant petition creates a genuine issue
of material fact that Trial Counsel was ineffective when he stipulated to a
factually incorrect summary of Ms. Hunter’s medical records. We thus vacate
the PCRA court’s order and remand for an evidentiary hearing on this claim.
Appellant’s remaining claims, however, do not entitle him to relief.
Within Appellant’s second numbered claim on appeal, Appellant
contends that Trial Counsel was “ineffective insofar as he failed to retain a
neurologist to ensure that he understood the medical evidence and that the
medical evidence was accurately presented to the jury.” Appellant’s Brief at
9. We have already concluded that the PCRA court erred when it refused to
grant Appellant an evidentiary hearing on his claim that Trial Counsel was
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ineffective by stipulating to a factually incorrect summary of Ms. Hunter’s
medical records. Essentially, Appellant's first claim embraces Trial Counsel’s
comprehension of Ms. Hunter’s medical records and the accuracy with which
those records were presented to the jury. In light of these determinations,
Appellant’s second numbered claim on appeal is moot.
Third, Appellant claims that Trial Counsel was ineffective for failing to
object to the testimony regarding the gym tags found in the truck. According
to Appellant, the testimony concerning the gym tags “violated the best
evidence rule and the rule against hearsay.” Appellant’s Brief at 45. As the
PCRA court explained, Appellant’s claim is meritless:
[Hearsay is defined as a statement that “the declarant does
not make while testifying at the current trial or hearing” and
“a party offers in evidence to prove the truth of the matter
asserted in the statement.” Pa.R.E. 801(c).] Pa.R.E. 801(a)
defines a statement as “a person’s oral assertion, written
assertion, or nonverbal conduct, if the person intended it as
an assertion.” Notably, our Courts have held that computer
generated information, free from interference by any person,
does not constitute a “statement,” and therefore, cannot
qualify as hearsay. Commonwealth v. Wallace, 244 A.3d
1261, 1272 (Pa. Super. 2021) (GPS data from defendant’s
tracking bracelet was not hearsay). Pa.R.E. 801(b) further
defines a declarant as “the person who made the
statement.” (emphasis added).
In this case, Officer Patrick Owens testified that the key tags
were scanned at each [fitness] establishment in front of him
and the screen displayed Appellant’s name. As such, there
was no declarant involved, and precedent would further
suggest that computer generated information of this type
would not constitute a statement. As such, [Trial Counsel]
cannot be ineffective for failing to object to evidence that was
not hearsay.
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Moreover, Officer [Owens’] testimony did not violate the best
evidence rule. The best evidence rule is codified by
Pennsylvania Rule of Evidence 1002, which provides as
follows:
[An original writing, recording, or photograph is required
in order to prove its content unless these rules, other
rules prescribed by the Supreme Court, or a statute
provides otherwise.]
Pa.R.E. 1002. “Rule 1002 requires that an original writing,
recording, or photograph be introduced at trial only if the
proponent must prove the contents of the writing, recording,
or photograph to prove the elements of its case.
Commonwealth v. Ribot, 169 A.3d 64, 67 (Pa. Super.
2017). . . . “The best evidence rule is triggered, however,
only when the contents of a writing are essential, not merely
relevant, in proving a claim or defense.” Commonwealth
v. Talley, 236 A.3d 42, 62 (Pa. Super. 2020). “If the
Commonwealth does not need to prove the content of the
writing or recording to prove the elements of the offense
charged, then the Commonwealth is not required to introduce
the original writing or recording.” Commonwealth v. Dent,
837 A.2d 571, 590 (Pa. Super. 2003).
Regarding the key tags, Officer Owens testified that when he
arrived at the location, he spoke to the first driver that had
been struck (Augustine Swaray) and then he ran the tag of
the pick-up truck (the striking vehicle) which was
unattended. He got the owner’s information and sent a police
car to the address associated with the tag: . . .
[Officer Owens]: From there I run the tag to the pickup
truck, which is unattended, and I was advised by the
driver of the . . . [car], all he could tell me that a white
male twenties to thirties, white shirt, fled southbound on
Torresdale. I ran the tag to the vehicle. I got the owner’s
information, sent a police car out to that location.
[The Commonwealth]: To the owner’s house?
[Officer Owens]: To the owner’s location of the pickup
truck where the person had fled. He was not on location.
His mother was. She had advised the police that he was
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at the Mayfair Fitness working out, which is on Frankford
[Avenue], approximately Frankford and Vista area. A
marked patrol car went over there to see if the owner was
there. His name was Shawn Fishgold. He was. We
brought him out to the location to see if he was possibly
the driver of the vehicle. He was not the driver.
[The Commonwealth]: How do you know that?
[Officer Owens]: We were able to find out he was at the
gym the entire time when the accident happened. We
asked him if it was his vehicle. He told us yes, that it is
his truck and that the last time he had seen it, it was at,
I believe, sixteen hundred Stanwood and it was parked
there a few days prior and that a female by the name of
Amanda had the key, the only other key to the vehicle.
[The Commonwealth]: Okay. All right. So he IDs his
truck. Does he ID anything else that's on the scene?
[Officer Owens]: There was an ignition key to the vehicle,
which he identified as his, and on that key ring there was
a green climbing hook, I believe three Aquatic Fitness
Center key tags, a Mayfair Fitness key tag and a Modell's
key tag.
...
[The Commonwealth]: So those keys, so you go back to
Mr. Fishgold. You said that he identified the ignition key
for the Ford, but what about the rest of the items?
[Officer Owens]: They said they were not his. That's what
he said.
...
[The Commonwealth]: At that point what do you do with
those items? Well, what do you do in general?
[Officer Owens]: Well, tow comes on location, removes
the vehicle, which Mr. Fishgold gave permission to due to
the heavy damage to the vehicle. He actually signed a tow
slip for that. The scene was cleared. Due to the fact that
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the gentlemen was just at Mayfair Fitness, I took him
back to Mayfair Fitness. There was a key tag for Mayfair
Fitness so I had the gym scan that tag. That came back
to a Mr. Michael McDowell.
[The Commonwealth]: And so when you got there, how
is it that you find that information out?
[Officer Owens]: I gave it to the clerk. I let them know
could you check to see whose key tag this is. It was found
in a vehicle of someone who fled the scene. They scanned
it in front of me and I looked at the screen and saw
Michael McDowell on there.
[The Commonwealth]: What do you do next?
[Officer Owens]: I then have to go up to Aria Torresdale
to check on the female that was taken to the hospital
before my arrival. I checked on her condition. She was
stable at the time. The Aquatic Fitness Center is actually
maybe five minutes away from that hospital so I took, I
went over there to have them scan the three Aquatic
Center keys and all three of those keys came up to a Mr.
Michael McDowell.
[The Commonwealth]: Same procedure in terms of
scanning and seeing it on the screen?
[Officer Owens]: Yes. When you walked up to it, it was a
round desk and you could see the computer screen. They
scanned all three and all three came to Michael McDowell.
...
[N.T. Trial, 6/12/18, at 39-45].
Despite Appellant’s argument to the contrary, the best
evidence rule is not applicable to this case. Testimony
concerning the gym tags was presented to demonstrate that
Appellant had access to the pickup truck, not to conclusively
establish any element of the Commonwealth’s case. See
Commonwealth v. Townsend, 747 A.2d 376, 380 (Pa.
Super. 2000) (no violation of best evidence rule occurred
where trial court allowed detective to testify regarding
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content of defendant’s written confession, even though
written confession was not admitted into evidence; content
of confession made persuasive evidence for Commonwealth’s
case but was not necessary to establish elements of crimes
of burglary and assault, which had no elements requiring
proof of content of confession or any other writing).
Accordingly, trial counsel was not ineffective [for failing] to
make an objection based on the best evidence rule.
PCRA Court Opinion, 5/12/22, at 21-25.
We agree with the PCRA court’s thorough analysis and conclusion.
Therefore, we conclude that Appellant’s third numbered claim on appeal fails.
Finally, Appellant claims that he is entitled to relief based upon
after-discovered evidence. Appellant’s Brief at 49.
First, according to Appellant, after he filed his initial PCRA petition, he
received a recorded telephone conversation between Ms. Hunter’s Husband
and an agent for Liberty Mutual Insurance. The conversation occurred one
day after the accident and, during the telephone call, the following exchange
occurred:
[Liberty Mutual]: Okay. Did we get the other person’s
insurance information?
[Ms. Hunter’s Husband]: No. My wife got rushed to the
emergency room. He ran. I have police reports though.
They knew, they knew, I don’t know if they locked him up
yet, but they knew who did it. I know who did it. It’s in
(unintelligible) the police report. He better hope the cops get
him before I do, though, that’s all I can say for real.
Amended PCRA Petition, 3/17/21, at 2 (footnote omitted); Appellant’s Brief at
50.
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According to Appellant, this after-discovered evidence entitles him to a
new trial because:
The files received from Liberty Mutual Insurance tend to
prove that investigators, whether wittingly or unwittingly,
provided Ms. Hunter and/or her husband with the name of
their prime suspect as early as one day after the accident. .
..
[W]ith the advent of social media and the internet, locating a
picture or pictures of [Appellant] prior to the January 27 th
lineup would have been easy for Ms. Hunter. There can
simply be no confidence that Ms. Hunter identified the person
she saw crash into her rather than [Appellant], the suspect
she learned about from the police crash report.
Appellant’s Brief at 51.
Further, Appellant claims, after he filed his PCRA petition, he learned
that Ms. Hunter received the bodily injury policy limits from Mr. Fishgold’s
insurance carrier. Appellant claims that this after-discovered evidence entitles
him to a new trial because it demonstrates that Ms. Hunter had a monetary
“reason[] to offer false testimony and embellish the nature of her injuries.”
Id. at 56.
Appellant’s after-discovered evidence claims fails.
As our Supreme Court has explained:
in order to be granted a new trial based on after-discovered
evidence, appellant must show the evidence: 1) has been
discovered after trial and could not have been obtained at or
prior to the conclusion of trial by the exercise of reasonable
diligence; 2) is not merely corroborative or cumulative; 3)
will not be used solely to impeach a witness's credibility; and
4) is of such a nature and character that a different verdict
will likely result if a new trial is granted.
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Commonwealth v. Cousar, 154 A.3d 287, 311 (Pa. 2017).
Appellant’s claims on appeal immediately fail, as Appellant admits that
he would only use the above evidence to impeach Ms. Hunter’s credibility
regarding her identification of Appellant and the extent of her injuries. See
Appellant’s Brief at 52 (surmising that Ms. Hunter might have falsely identified
Appellant as her assailant because she located Appellant’s photograph on the
internet); 53 (declaring that the evidence entitles Appellant to a new trial
because “[t]he jury was unable to properly evaluate whether Ms. Hunter
should or should not be believed”); 54 (declaring that “this new evidence . . .
calls into serious question whether Ms. Hunter gave truthful, accurate
testimony); 55 (declaring that the evidence entitles Appellant to a new trial
“so that he can fully . . . probe Ms. Hunter’s motive and/or bias as a witness”);
56 (declaring: “[a]s a result of this newly discovered evidence, we now know
that Ms. Hunter had [a monetary] reason[] to offer false testimony to
embellish the nature of her injuries”). Appellant’s final claim on appeal thus
fails.
In conclusion, we vacate the PCRA court’s order and remand for an
evidentiary hearing on whether Trial Counsel was ineffective when he
stipulated to a factually incorrect summary of Ms. Hunter’s medical records.
Appellant’s remaining claims fail.
Order vacated. Case remanded. Jurisdiction relinquished.
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Date: October 18, 2023
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