Com. v. Raspatello, J. ( 2021 )

J-S03043-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
JOHN ANTHONY RASPATELLO, :
: No. 556 WDA 2020
Appellant
Appeal from the PCRA Order Entered April 20, 2020
in the Court of Common Pleas of Elk County
Criminal Division at No(s): CP-24-CR-0000128-2014
BEFORE: DUBOW, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED: JULY 23, 2021
Appellant, John Anthony Raspatello, appeals from the April 20, 2020
order dismissing his Petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The relevant facts and procedural history are as follows. At
approximately 7:30 p.m. on December 30, 2013, Douglas Brosius and Amy
Cloak attempted to repossess Suzanne Catalone’s vehicle on behalf of Holiday
Financial because Catalone had defaulted on a loan to which the vehicle’s title
had been offered as collateral. Brosius permitted Appellant, Catalone’s
boyfriend, to enter the vehicle to retrieve personal items. Brosius stood next
to the open driver’s side front door and Cloak stood next to the closed driver’s
side rear door. Once inside the vehicle, Appellant twice announced that he
had a gun. Having failed to scare Brosius and Cloak away, Appellant
*Retired Senior Judge assigned to the Superior Court.
J-S03043-21
attempted to flee in the vehicle by driving in reverse. The open front door
struck Brosius, propelling Brosius away from the door and causing the front
door hinges to spring open. The door then hit Cloak, knocking her to the
pavement, wedging her underneath the door, and dragging her approximately
two car-lengths before she became dislodged and rolled into the yard of
Catalone’s residence. Appellant continued to drive away but was apprehended
by police shortly thereafter. Cloak suffered a life-threatening dislocation of
her sternum and clavicle. Brosius suffered a back injury and exacerbation of
pre-existing cardiac issues. Twenty-two months after the incident, Brosius
still experienced low back pain, which affected his mobility. See
Commonwealth v. Raspatello, 181 A.3d 1265 (Pa. Super. 2017)
(unpublished memorandum at 2–4) (quoting Trial Court Opinion, 8/30/2016).
On October 30, 2015, following a trial, the jury convicted Appellant of
two counts each of Aggravated Assault, Aggravated Assault (Deadly Weapon),
Simple Assault, and Recklessly Endangering Another Person, and one count of
Failing to Stop; the court simultaneously convicted Appellant of the summary
offense of Reckless Driving.1
At a sentencing hearing on April 21, 2016, the court sentenced Appellant
to serve consecutive terms of seven to fifteen years and eight to twenty years
of incarceration for the Aggravated Assault convictions, as well as lesser
1 18 Pa.C.S. §§ 2702(a)(1), 2702(a)(4), 2701(a)(1), and 2705, and 75 Pa.C.S.
§§ 3742(a) and 3736(a), respectively.
-2-
J-S03043-21
concurrent sentences for Aggravated Assault (Deadly Weapon), Failing to
Stop, and Reckless Driving. Appellant appealed to this Court. On December
22, 2017, this Court affirmed the trial court’s denial of Appellant’s weight and
sufficiency challenges. Regarding Appellant’s sentencing challenge, we
concluded that the court’s sentencing calculations correctly reflected
application of the Deadly Weapon Enhancement, but the court had stated that
it did not intend to apply the enhancement. Therefore, we vacated Appellant’s
judgment of sentence and remanded for resentencing so that the court could
consider Appellant’s sentence with the Deadly Weapon Enhancement.
Raspatello, 181 A.3d 1265 (unpublished memorandum at 22). Our Supreme
Court denied Appellant’s petition for allowance of appeal on January 11, 2019.
Commonwealth v. Raspatello, 200 A.3d 936 (Pa. 2019).
On March 25, 2019, the trial court held a sentencing hearing, wherein it
confirmed that the originally imposed Judgment of Sentence accurately
reflected the intended sentencing scheme and that the court had taken into
consideration the application of the Deadly Weapon Enhancement. Therefore,
the court imposed the same aggregate sentence of 15 to 35 years of
incarceration. On April 3, 2019, Appellant filed a post-sentence motion
seeking reconsideration of the amount of restitution. With leave of court,
Appellant filed an amended post-sentence motion on June 17, 2019, seeking
reconsideration of his sentence. A hearing was held on August 13, 2019. On
August 30, 2019, the trial court granted in part and denied in part Appellant’s
-3-
J-S03043-21
motion for reconsideration of the restitution and denied his motion for
reconsideration of his sentence. Appellant did not file a notice of appeal to
this Court.
On September 11, 2019, Appellant pro se filed a timely first PCRA
Petition. The PCRA court appointed new counsel to represent Appellant in his
PCRA proceedings. On December 23, 2019, PCRA counsel filed an Amended
Petition, raising two claims: (1) trial counsel, Attorney Joseph Ryan, rendered
ineffective assistance by sending another attorney from his office, Attorney
Jendi Schwab, to conduct jury selection; and (2) Attorney Schwab rendered
ineffective assistance by continuing to represent Appellant after he requested
that she not and by failing to advise the trial court that Appellant wanted to
retain private counsel. Amended PCRA Petition, 12/23/2019.2 The PCRA court
held an evidentiary hearing, during which the court heard testimony from
Attorney Ryan, Attorney Schwab, and Appellant. On April 20, 2020, the PCRA
court denied Appellant’s PCRA Petition.
Appellant timely appealed. Both Appellant and the PCRA court complied
with Pa.R.A.P. 1925. On appeal, Appellant raises one issue.
I. Whether it violates a defendant’s constitutional right to
effective counsel to have his court appointed attorney assign
another attorney (with no prior experience with jury
2 Appellant filed a pro se Addendum to the Amended PCRA Petition, raising
two additional claims. The PCRA court accepted the Addendum, ultimately
concluding that Appellant failed to prove either claim. See Addendum to
Amended PCRA Petition, 1/21/2020; PCRA Court Order, 1/23/2020; PCRA
Court Opinion, 4/20/2020, at 2. Appellant does not argue on appeal that the
PCRA court erred in dismissing these claims.
-4-
J-S03043-21
selection) to conduct jury selection over the defendant’s
objection?
Appellant’s Br. at 7 (unnecessary capitalization and PCRA court’s answer
omitted).
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.
Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014)). “This Court grants great deference to the findings of the PCRA court
if the record contains any support for those findings.” Commonwealth v.
Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted).
“Further, the PCRA court’s credibility determinations are binding on this Court,
where there is record support for those determinations.” Id. (citation
omitted).
In analyzing claims of ineffective assistance of counsel, we presume
that trial counsel was effective unless the PCRA petitioner proves
otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999).
In order to succeed on a claim of ineffective assistance of counsel, Appellant
must demonstrate (1) that the underlying claim is of arguable merit; (2) that
counsel’s performance lacked a reasonable basis; and (3) that the
ineffectiveness of counsel caused the appellant prejudice. Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Appellant bears the burden of
proving each of these elements, and his “failure to satisfy any prong of the
-5-
J-S03043-21
ineffectiveness test requires rejection of the claim of ineffectiveness.”
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009). Finally, it is
well-settled that “the right to appointed counsel does not include the right to
counsel of the defendant’s choice.” Commonwealth v. Albrecht, 720 A.3d
693, 709 (Pa. 1998) (citation omitted).
Appellant argues that “if a defendant’s appointed attorney chooses to
replace himself for the jury selection portion of a trial with another attorney
that has no experience selecting a jury, this should be viewed as not providing
effective counsel for the defendant.” Appellant’s Br. at 13.
At the PCRA hearing, Appellant and his attorneys gave conflicting
statements regarding whether Appellant objected to Attorney Schwab’s
representation and voiced his desire to retain private counsel or represent
himself. Appellant testified that he told both attorneys that he wanted either
to represent himself or retain private counsel instead of having Attorney
Schwab represent him at jury selection. N.T., 2/5/2020, at 16-19. On the
other hand, while Attorneys Ryan and Schwab acknowledged that Appellant
expressed his displeasure multiple times at having Attorney Schwab represent
him at jury selection instead of Attorney Ryan, they both testified that
Appellant never asked to retain private counsel or represent himself. Id. at
5–6, 8, 11. The PCRA court credited the testimony of Attorneys Ryan and
Schwab over that of Appellant.
[A]ll [Appellant] has shown is that he expressed his general
displeasure at having an attorney other than the one with whom
-6-
J-S03043-21
he was familiar handle jury selection, as the [PCRA c]ourt does
not believe that he voiced anything more than vague
disgruntlement to either attorney. More specifically, it does not
believe that he articulated to Attorney Ryan that he did not want
Attorney Schwab handling jury selection or to Attorney Schwab
that he wanted to continue his case or represent himself. Nor
does it believe that [Appellant] ever mentioned retaining private
counsel after learning that Attorney Ryan would be unavailable for
jury selection, that Attorney Schwab refused to ask the
prospective jurors the only question he proposed she ask them,
or that either attorney treated him as dismissively as he indicated.
In short, the [PCRA c]ourt finds Attorneys Ryan and Schwab to be
credible, while [Appellant’s] testimony strikes it as fanciful
fabrication.
PCRA Court Opinion, 4/20/2020, at 1–2.
Additionally, the PCRA court found Appellant failed to establish that
Attorney Ryan had any specialized training or knowledge in selecting a non-
capital jury. Although it was Attorney Schwab’s first jury selection, the court
found Appellant failed to establish that Attorney Ryan was better equipped to
select a jury that would have acquitted him where “the credible evidence was
that [Appellant] sat by silently as Attorney Schwab tried repeatedly to engage
him in the [jury selection] process.” Id. at 2. Thus, the PCRA court concluded
that Appellant also failed to establish the prejudice prong.
As there is support for the PCRA court’s findings in the record, we are
bound by the PCRA court’s credibility determinations. Anderson, 995 A.2d
at 1189. The PCRA court’s conclusions are free from legal error. Appellant is,
therefore, not entitled to relief.
Having concluded that Appellant is not entitled to relief on his claim, we
affirm the PCRA court’s Order denying his PCRA Petition.
-7-
J-S03043-21
Order affirmed.
Judge Murray joins the memorandum.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/2021
-8-