Com. v. Sweitzer, B. ( 2021 )

J-S08029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON VAUGHN SWEITZER :
:
Appellant : No. 1307 MDA 2020
Appeal from the PCRA Order Entered September 9, 2020,
in the Court of Common Pleas of York County,
Criminal Division at No(s): CP-67-CR-0007445-2017.
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 15, 2021
Brandon Vaughn Sweitzer appeals from the order denying his petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 42
Pa.C.S.A. §§ 9541-46. Additionally, Sweitzer’s court-appointed PCRA counsel
has filed a motion for leave to withdraw from representation, as well as a “no-
merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). We grant counsel’s motion to withdraw and affirm the PCRA court’s
order denying post-conviction relief.
The pertinent facts and procedural history have been summarized as
follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
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On the evening of September 16, 2016, Sweitzer, C.F.,
Jennifer Rohrbaugh (“Rohrbaugh”), and two of Sweitzer’s
friends gathered at Rohrbaugh’s home in Manchester,
Pennsylvania, for a bonfire and some alcoholic drinks.
Around midnight, C.F. and Rohrbaugh went inside the home
to sleep. C.F. slept in Rohrbaugh’s guest room. Sweitzer
and his two friends went to a local bar for a couple of hours,
then returned to Rohrbaugh’s home. At some point in the
night, Sweitzer entered the room in which C.F. was sleeping,
and engaged in sexual relations with C.F.
The next morning, C.F. left Rohrbaugh’s home, drove to
a nearby Rutter’s convenience store, called 911, and told
police that she had been sexually assaulted by Sweitzer the
previous night. Sweitzer was subsequently charged with
rape and sexual assault.
Commonwealth v. Sweitzer, 227 A.3d 397 (Pa. Super. 2020), non-
precedential decision at 1 (footnotes omitted).
At Sweitzer’s jury trial, the Commonwealth called Ms. Rohrbaugh as a
witness. She testified briefly as to the facts leading to the incident at issue,
and then testified she accompanied Sweitzer when he originally met with trial
counsel. According to Ms. Rohrbaugh, during this meeting Sweitzer admitted
that he assaulted C.F. Trial counsel cross-examined Ms. Rohrbaugh regarding
whether such an admission in fact occurred. See N.T., 1/16/19, 350-61. As
part of his defense, Sweitzer testified that he never told anyone that the sex
he had with C.F. was non-consensual. See N.T., 1/17/19, at 491-92. In
addition, trial counsel took the witness stand and denied that any such
statement was made by Sweitzer during his meeting with Sweitzer and Ms.
Rohrbaugh. See N.T, 1/17/19, at 524-31.
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The jury found Sweitzer guilty of the above-mentioned offenses. The
trial court sentenced Sweitzer to five to ten years in prison. Sweitzer filed a
timely appeal to this Court. On February 7, 2020, this Court rejected his claim
regarding C.F.’s sequestration and affirmed his judgment of sentence. See
Sweitzer, supra. Sweitzer did not seek further review.
On April 21, 2020, Sweitzer filed a pro se PCRA petition. The PCRA court
appointed counsel, and PCRA counsel filed an amended petition on August 7,
2020. On August 19, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice of
its intent to dismiss Sweitzer’s PCRA petition without a hearing. Sweitzer did
not file a response. By order entered September 9, 2020, the PCRA court
denied Sweitzer’s petition. This timely appeal followed. Both Sweitzer and
the PCRA court have complied with Pa.R.A.P. 1925.
On December 22, 2020, PCRA counsel filed an application to withdraw
as counsel and a brief pursuant to the dictates of Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). Counsel did not attach to his application to withdraw
a copy of a “no-merit” letter pursuant to Commonwealth v. Friend, 896
A.2d 607, 615 (Pa. Super. 2006). We therefore directed counsel to send
Sweitzer a letter pursuant to Friend. Counsel filed a response, but the Friend
letter contained incomplete advice. We therefore directed counsel to again
provide a copy of the application to withdraw and no-merit letter. Thereafter,
counsel fully complied with our directive.
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We first address PCRA counsel’s motion to withdraw. Pursuant to
Turner/Finley, supra, before seeking leave to withdraw, a criminal
defendant’s counsel must review the record to determine if any meritorious
issue exists. See Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.
2009). In Pitts, our Supreme Court explained that such review by counsel
requires proof of:
1. A “no-merit” letter by PC[R]A counsel detailing the nature
and extent of his review;
2. The “no-merit” letter by PC[R]A counsel listing each issue
the petitioner wished to have reviewed;
3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter,
of why the petitioner’s issues were meritless;
4. The PC[R]A court conducting its own independent review of
the record; and
5. The PC[R]A court agreeing with counsel that the petition
was meritless.
Id. (citation and brackets omitted). Further, PCRA counsel seeking to
withdraw from representation in this Court must contemporaneously forward
to the petitioner a copy of the petition to withdraw that includes (1) a copy of
both the “no-merit” letter, and (2) a statement advising the PCRA petitioner
that, upon the filing of counsel’s petition to withdraw, the petitioner has the
immediate right to proceed pro se, or with the assistance of privately retained
counsel. Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super.
2016).
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Upon review, we conclude that PCRA counsel has substantially complied
with the Turner/Finley requirements as set forth above. See
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)
(holding that substantial compliance with requirements to withdraw as counsel
will satisfy the Turner/Finley criteria). We now independently review the
claims Sweitzer wished to raise on appeal.
In his Rule 1925(b) statement, Sweitzer alleged the following:
I. The [PCRA] court erred and abused its discretion by
dismissing [Sweitzer’s] PCRA petition without a
hearing and finding that [his] trial counsel was not
ineffective for failing to object to witness Rohrbaugh’s
testimony and request a mistrial?
II. The [PCRA] court erred and abused its discretion by
dismissing [Sweitzer’s] PCRA petition without a
hearing and finding that [his] trial counsel was not
ineffective for failing to lodge a timely objection on the
record and request a mistrial for having to testify as a
defense witness at trial.
Rule 1925(b) Statement, 10/30/20, at 1 (excess capitalization omitted).
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
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The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a 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 material 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. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
Before an evidentiary hearing will be granted, a PCRA petitioner “must
set forth an offer to prove at an appropriate hearing sufficient facts upon which
a reviewing court can conclude that trial counsel may have, in fact, been
ineffective.” Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 2001)
(quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981). See
also Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that,
in the absence of a sufficient proffer, a petitioner’s bare assertions would
inappropriately convert an evidentiary hearing into a “fishing expedition” for
possible exculpatory evidence).
Sweitzer claims that the PCRA court erred in dismissing, without a
hearing, his two claims of ineffective assistance of trial counsel. To obtain
relief under the PCRA premised on a claim that counsel was ineffective, a
petitioner must establish by a preponderance of the evidence that counsel’s
ineffectiveness so undermined the truth determining process that no reliable
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adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
“Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) petitioner
was prejudiced by counsel's act or omission. Id. at 533. A finding of
"prejudice" requires the petitioner to show "that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id. A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
Sweitzer first claims that trial counsel was ineffective for failing to object
to Ms. Rohrbaugh’s testimony at trial and for failing to move for a mistrial.
“Questions regarding the admission of evidence are left to the sound discretion
of the trial court, and we, as an appellate court, will not disturb the trial court’s
rulings regarding the admissibility of evidence absent an abuse of that
discretion.” Commonwealth v. Pukowsky, 147 A.3d 1229 (Pa. Super.
2016) (citation omitted).
In its Rule 907 notice, the PCRA court explained the factual background
regarding this claim and why it lacked merit:
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[Sweitzer] contends that [trial counsel] was ineffective for
failing to request a new trial and place objections to [Ms.]
Rohrbaugh’s testimony on the record. [He] claims this
contention has arguable merit due to surprise.
Contrary to [Sweitzer’s] contention, there was no unfair
surprise in this case. “[T]he Commonwealth does not
violate disclosure rules when it fails to turn over evidence it
does not possess and of which it is unaware.”
[Commonwealth v. Boczkowski, 846 A.2d 75, 97 (Pa.
2004)] (citation omitted). In the instant case, the testimony
of [Ms.] Rohrbaugh that she was with [Sweitzer] and [trial
counsel] when [Sweitzer] admitted that the sexual
intercourse he had with [C.F.] was non-consensual is
inculpatory in nature. The Commonwealth disclosed this
information from [s.] Rohrbaugh to the [trial court] and to
[trial counsel] as soon as they learned of it, which happened
to be the morning of the third day of trial. As a result, there
was no violation of any rule of disclosure by the
Commonwealth, there was no reason to “remedy” the
matter, and the [trial court] properly allowed Ms.
Rohrbaugh’s testimony on the matter.
Moreover, through effective cross-examination, [trial
counsel] discredited [Ms.] Rohrbaugh on this matter by
getting her to repeatedly admit that despite the meeting
(wherein [Sweitzer] allegedly made this admission) taking
place prior to her speaking with [the police detective]. Ms.
Rohrbaugh failed to mention this admission to the
[detective] either at that time, or at any other time prior to
the third day of the trial. The fact that [trial counsel]
testified himself that he was the attorney present during this
meeting where [Sweitzer] allegedly made this admission,
and that [Sweitzer] did not make such an admission, further
discredited Ms. Rohrbaugh’s late claim. Hence, it was
beneficial to [Sweitzer] for [trial counsel] to testify as a fact
witness on his behalf. Given the foregoing, this contention
does not have arguable merit and there was no undue
prejudice to [Sweitzer] from allowing Ms. Rohrbaugh to
testify in regard to this matter.
Rule 907 Notice, 8/19/20, at 2 (citations omitted).
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In his Turner/Finley brief, PCRA counsel agrees that no discovery
violation occurred, and that Ms. Rohrbaugh’s testimony was properly
admitted. In addition, PCRA counsel opines that “it is clear from the record
that trial counsel made a strategic decision to thoroughly cross-examine [Ms.]
Rohrbaugh and testify as a fact witness to rebut her allegations.”
Turner/Finley Brief at 12.
Our review of the record supports the conclusions of the PCRA court and
PCRA counsel that Sweitzer’s first claim of ineffectiveness lacks arguable
merit.
In his second ineffectiveness claim, Sweitzer essentially asserts that
“[the] dual roles that [trial counsel] undertook, as both advocate and fact
witness, compromised his ability to adequately represent him.” Rule 907
Notice, 8/19/20, at 3.
The PCRA court found this claim lacked arguable merit. The court first
noted that the claim was undeveloped because Sweitzer failed to cite any case
authority to support his contention. Nevertheless, the PCRA court cited case
law stating, “[I]t is well settled that even an attorney acting as an advocate
at trial is competent to testify on his client’s behalf.” Id. (citing
Commonwealth v. Willis, 552 A.2d 682, 695 (Pa. Super. 1988).
After citing Rule 3.7(a) of the Pennsylvania Rule of Professional Conduct
which, does not forbid an attorney’s appearance as fact witness in all
instances, the court explained:
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In the instant case, whether or not [C.F.] consented was at
the heart of the charges against [Sweitzer]. The only people
privy to the initial meeting [Sweitzer] had with [trial
counsel] was [Sweitzer], Ms. Rohrbaugh, and [trial
counsel]. Ms. Rohrbaugh testified that [Sweitzer] admitted
at that meeting that the sex he had with [C.F.] was non-
consensual. Conversely, [Sweitzer] testified that he never
told anyone that the sex was non-consensual.
[Trial] counsel was questioned by another attorney, and
testified that during the initial consultation with [Sweitzer],
[Sweitzer] never said that the sex he had with [C.F.] was
non-consensual. This testimony by [trial counsel] was
consistent with [Sweitzer’s] defense (that he did have
sexual relations with [C.F.], but that it was consensual) and
was therefore valuable impeachment testimony for
[Sweitzer]. As a result, had the [trial court] prevented [trial
counsel] from testifying, the defense would have been
denied the opportunity to possibly sway the jury into
believing that [Sweitzer] had not, in fact, admitted that the
sex was non-consensual.
Moreover, the occasion for [trial counsel’s] need to testify
arose on the third day of a five-day trial. In addition, [trial
counsel] was the next to last witness to testify ([the
Commonwealth called a rebuttal witness]). Hence, a new
attorney would have had to familiarize himself with a
complete trial record prior to questioning the
Commonwealth’s witness on rebuttal and giving
[Sweitzer’s] closing argument to the jury.
Rule 907 Notice, 8/19/20, at 4 (citation omitted).
The PCRA court further noted that prior to trial counsel taking the stand
to testify, the trial court engaged in a thorough colloquy with Sweitzer and,
after further consultation with trial counsel, Sweitzer informed the court that
he wanted trial counsel to both testify on his behalf and continue to represent
him at trial. See id. at 4-6. The PCRA court then concluded:
Given the foregoing, it was in [Sweitzer’s] best interest for
[trial counsel] to testify on [Sweitzer’s] behalf, and it also
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would have been a substantial hardship on [Sweitzer] to
disqualify his attorney. Therefore, this contention does not
have arguable merit, and there is no prejudice to [Sweitzer].
Id. at 6.
PCRA counsel opines that, given the PCRA court’s conclusions, Sweitzer
“cannot show that trial counsel’s course of conduct was not designed to
advance his best interests, or that he suffered prejudice as a result.”
Turner/Finley Brief at 14. Our review of the record supports these
conclusions. Thus, Sweitzer’s second ineffectiveness claim fails.
In sum, because a review of the record supports the PCRA court’s
conclusion Sweitzer’s claims of ineffectiveness are meritless, the court
correctly denied his PCRA petition without first holding an evidentiary hearing.
We therefore affirm the order denying Sweitzer post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/15/2021
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