Com. v. Romig, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL CHRISTOPHER ROMIG :
:
Appellant : No. 1168 MDA 2020
Appeal from the PCRA Order Entered August 21, 2020
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000560-2016
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 25, 2021
Michael Christopher Romig (Romig) appeals from the order of the Court
of Common Pleas of Mifflin County (PCRA court) denying his petition filed
under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After
review, we affirm.
I.
This case arises from Romig’s aggravated assault of James Barry Moore
(Moore) on the evening of August 2, 2016. The Commonwealth presented
testimony, largely through Kelly McTavish, who was present during the assault
at Romig’s residence when Moore and another female went there to drink and
socialize. She testified that before the assault, Romig was in his living room
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* Retired Senior Judge assigned to the Superior Court.
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with her and Moore. While sitting on a couch, she testified that Romig showed
her naked pictures of himself that were on his cell phone. Moore told Romig
that showing the pictures was inappropriate to which Romig responded by
standing up and punching Moore in the face. Rather than fight back, she
testified that Moore asked him to calm down. Romig left the room but soon
returned and dragged Moore onto the floor where he repeatedly kicked him in
the head and chest. Moore’s face swelled and he began to bleed from his face
and ears. She testified that she went upstairs to get the other female to help
her stop Romig’s assault. When they came downstairs, even though he was
unconscious, Romig was still kicking Moore. Romig then got a knife and held
it to Moore’s neck. Romig said, “I’m just gonna end it now.”
She testified that she and the other female were able to persuade Romig
to let them take Moore to a hospital, where his condition was deemed
sufficiently serious that he had to be life-flighted to another hospital for
treatment. Moore testified that he could not remember the events of that
night but is paralyzed from the chest down, has lost use of his hands and
sexual organs and can no longer control his bladder or bowels. Moore now
lives in a nursing home.
Testifying in his own defense, Romig gave a starkly different version
casting Moore as the aggressor. He testified that Moore told him that he would
beat him up if he “tried anything” with Kelly McTavish and asked Moore to
leave because he did not like the way he was talking to him. As he walked
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out of the living room, Moore grabbed and pushed him through a kitchen
window, causing the glass to shatter and cut Romig’s arm. Romig went on to
testify that he was able to subdue him by punching him several times in the
face and getting him on the floor. Moore, however, continued to attack him
by throwing a television remote that struck him in the face, getting back up
and continued the fight with him. Romig testified that he overcame him again
and that when he was on the floor, kicked Moore twice in the ribs. Afraid that
Moore would attack again, Romig testified that he retrieved a pocketknife for
protection. By then, however, Moore was unconscious. He helped carry Moore
to the car to go to the hospital and then went back inside his home, passed
out on his couch, being awakened later that morning by the Pennsylvania
State Police.
The trial court gave the jury a non-deadly force instruction under 18
Pa.C.S. § 505(a) but declined Romig’s request for a castle-doctrine instruction
which addresses use of deadly force against an intruder in a home under
subsection (b)(2.1). The jury found Romig guilty of two counts of aggravated
assault - one for causing serious bodily injury and the other for attempting to
cause serious bodily injury with a deadly weapon.1 The trial court imposed
consecutive terms of imprisonment of 7 to 20 years and 2½ to 10 years, giving
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1 18 Pa.C.S. §§ 2702(a)(1) and (a)(4). The jury also found Romig guilty of
one count of simple assault, 18 Pa.C.S. § 2701(a)(1), which the trial court
later merged with the other counts.
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Romig an aggregate sentence of 9½ to 30 years’ imprisonment. We affirmed
on direct appeal and our Supreme Court denied further review.
Commonwealth v. Romig, 400 MDA 2018 (Pa. Super. 2018) (unpublished
memorandum), appeal denied, 215 A.3d 561 (Pa. 2019).
Romig filed this timely first PCRA petition and was appointed counsel.
In an amended petition, Romig raised several claims of ineffective assistance
of counsel against trial and direct appellate counsel, both of whom testified at
an evidentiary hearing. After the hearing, the PCRA court denied Romig’s
petition and this timely appealed followed.2
II.
On appeal, Romig raises several claims alleging that he received
ineffective assistance of counsel at both his trial and on direct appeal. We
have explained that:
In order to obtain relief under the PCRA premised upon a claim
that counsel was ineffective, a petitioner must establish beyond a
preponderance of the evidence that counsel’s ineffectiveness so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place. When
considering such a claim, courts presume that counsel was
effective, and place upon the appellant the burden of proving
otherwise. Counsel cannot be found ineffective for failure to
assert a baseless claim.
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2 Our standard of review for the denial of a PCRA petition “calls for us to
determine whether the ruling of the PCRA court is supported by the record
and free of legal error. The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record.” Commonwealth
v. Lewis, 63 A.3d 1274, 1278 (Pa. Super. 2013).
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To succeed on a claim that counsel was ineffective, Appellant must
demonstrate that: (1) the claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction;
and (3) counsel’s ineffectiveness prejudiced him.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (quotation
marks and citations omitted). “To demonstrate prejudice, a petitioner must
show that there is a reasonable probability that, but for counsel’s actions or
inactions, the result of the proceeding would have been different.”
Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015).
A.
Romig’s first challenge centers on the trial court’s denial of his request
for a castle-doctrine instruction. We did not address the issue on direct appeal
because appellate counsel failed to develop it in his brief and, though it sought
to have the charge given that was denied, trial counsel failed to specifically
object to the trial court’s jury charge. As a result, Romig asserts that appellate
counsel was ineffective. He then goes on to contend that he satisfied that
element that his argument has merit and that he was prejudiced by this failure
because the trial court erred in not giving the instruction because he testified
that he defended himself against Moore after asking him to leave his home.
The castle-doctrine is codified under subsection (b)(2.1) of the self-
defense statute and provides as follows:
§ 505. Use of force in self-protection.
***
(b) Limitations on justifying necessity for use of force.
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***
(2.1) Except as otherwise provided in paragraph (2.2), an
actor is presumed to have a reasonable belief that deadly force is
immediately necessary to protect himself against death, serious
bodily injury, kidnapping or sexual intercourse compelled by force
or threat if both of the following conditions exist:
(i) The person against whom the force is used is in
the process of unlawfully and forcefully entering, or has
unlawfully and forcefully entered and is present within, a
dwelling, residence or occupied vehicle; or the person
against whom the force is used is or is attempting to
unlawfully and forcefully remove another against that
other’s will from the dwelling, residence or occupied vehicle.
(ii) The actor knows or has reason to believe that the
unlawful and forceful entry or act is occurring or has
occurred.
18 Pa.C.S. § 505 (b)(2.1).
The castle-doctrine “is an evidentiary means by which a defendant may
attempt to prove justification by self-defense.” Commonwealth v.
Cannavo, 199 A.3d 1282, 1287 (Pa. Super. 2018). Specifically, it “is a
specialized component of self-defense, which recognizes that a person has no
duty to retreat from his or her home before using deadly force as a means of
self-defense.” Commonwealth v. Childs, 142 A.3d 823, 824 n.1 (Pa. 2016)
(citations omitted). However, there was no evidence that Moore unlawfully or
forcefully entered his residence; instead, Moore and the two other females
were invited into his home to drink and socialize.
Nonetheless, because he testified that he told Moore that he had to leave
after he threatened him, Romig contends that the castle-doctrine can be
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invoked if a guest is told to leave a residence but refuses to do so. This
argument, however, is not supported by the plain language of subsection
(b)(2.1)(i), which, as explained above, applies only to victims who unlawfully
and forcefully enter a residence. Romig ignores this language, contending
that it is “unreasonable” that he cannot invoke the doctrine because he invited
Moore into home. See Romig’s Brief at 8. In so arguing, however, Romig,
not surprisingly, given its plain language, fails to cite any case law for support
of his contention that subsection (b)(2.1)(i) can be satisfied if the defendant
asked the victim to leave the residence. Accordingly, the trial court did not
err in refusing to give the castle-doctrine charge because Romig could not
establish the first requirement for the castle-doctrine: that the victim was in
the process of unlawfully and forcefully entering or has unlawfully and
forcefully entered and is present within his residence. See 18 Pa.C.S.
§ 505(b)(2.1)(i).
B.
Next, Romig alleges that trial counsel was ineffective for not objecting
to Moore’s testimony about his injuries. While he asserts that this evidence
was “more prejudicial than probative,” his main argument appears to be that
Moore’s testimony about his internal injuries and sexual organs required
expert testimony.
We find there was nothing in Moore’s testimony that exceeded the scope
of permissible testimony as a fact witness. For its first count of aggravated
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assault, the Commonwealth needed to prove that Romig caused Moore to
suffer serious bodily injury. See 18 Pa.C.S. § 2702(a)(1). The Crimes Code
defines serious bodily injury 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.
§ 2301. The Commonwealth asked Moore about his current physical condition
and ability to, among other things, control his bladder or bowels and what
caused his condition. See N.T. at 126. Under Pennsylvania Rule of Evidence
701, a lay witness can testify to opinions or inferences that are rationally
based on the perception of the witness. See Pa.R.E. 701. Here, Moore’s
testimony about his impairment caused by the assault was based on his
perception and did not require expert medical testimony. As a result, trial
counsel was not ineffective for not objecting to Moore’s trial testimony about
his injuries.
C.
Romig also contends that trial counsel was ineffective for failing to
object to Moore’s testimony during direct examination that he remembered
waking up in a hospital and being told by medical personnel that he “was
paralyzed from the chest down.” N.T. at 124. He asserts that trial counsel
should have known that “medical hearsay of this type is the worst type of
information that a jury can hear.” See Romig’s Brief at 9.
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First, Moore’s testimony about what medical personnel told him was not
necessarily hearsay. “Out of court statements are not inadmissible hearsay
… if they are offered for some relevant purpose other than to prove the truth
of the matter asserted.” Commonwealth v. Wantz, 84 A.3d 324, 326, 336
(Pa. Super. 2014) (citations omitted). Here, the evidence would have been
admissible to prove what medical personnel told Moore when he woke up in
the hospital. While Romig may dispute the cause of Moore’s paralysis, there
was no apparent dispute at trial whether Moore is now paralyzed.
Moreover, even if counsel should have objected, we fail to see how but
for counsel’s failure there is a reasonable probability that the result of the
verdict would have been different. The central issue at trial was the extent to
which Romig assaulted Moore and the credibility of his version of events.
Romig, however, does not address the prejudice prong in his argument by
failing to explain how the trial would have been different if the purported
hearsay had been excluded.
D.
Finally, Romig argues that trial counsel was ineffective for failing to
highlight in his closing statement that the Commonwealth failed to offer expert
medical testimony that Romig caused his injuries. He points to evidence that
Moore fell off a horse at Romig’s house earlier in the evening. Romig seems
to believe that created a factual issue requiring the Commonwealth to offer
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expert evidence excluding this fall from being the cause of Moore’s injuries.
See Romig’s Brief at 9.
Romig’s argument overstates the importance about Moore’s fall from
the horse because there was no evidence that it physically affected him and
could be a plausible explanation for his injuries. Both female guests testified
at trial that the fall was minor and that Moore was embarrassed but laughing
about the fall. See N.T. at 85. In fact, Romig testified at trial that Moore was
able to “get up on his own power” after the fall. Id. at 166. As a result, trial
counsel did not feel that it was a meritorious argument worth pursuing with
the jury because there was no evidence that the fall seriously injured Moore,
as well as the evidence’s relative weight when considered against the length
and intensity of Romig’s assault of Moore inside the residence. See N.T.,
6/2/20, at 20-21. Trial counsel also had a strategic basis for not pursuing the
argument with the jury, choosing instead to focus on more meritorious
arguments regarding self-defense in his closing statement. Based on the
testimony about the fall, Romig’s counsel’s decision not to highlight it in his
closing argument was reasonable.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/2021
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