Com. v. Dean, E.

J-S82023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
ERIC ULYSSES DEAN :
: No. 530 WDA 2017
Appellant
Appeal from the PCRA Order March 15, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016733-2012
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 26, 2018
Appellant Eric Ulysses Dean files this pro se appeal from the order of the
Court of Common Pleas of Allegheny County denying Appellant’s petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Appellant raises two claims of ineffectiveness of counsel. We affirm.
Appellant was arrested in connection with the October 30, 2012 beating
of Martin Dzubinski in McKees Rocks. The PCRA court aptly summarized the
factual background of this case as follows:
The evidence presented at trial established that on October 30,
2012, [Appellant] went to Bob’s Tavern on Broadway Avenue in
McKees Rocks with his friend, Willie Fuller. The pair arrived at
11:00 a.m. and drank and smoked marijuana throughout the day.
The victim, Martin Dzubinski, arrived sometime that evening, as
it was his custom to stop in at the bar for a few beers after work.
At 7:13 p.m., bar surveillance video showed Dzubinski leaving the
bar, and [Appellant] following him 35 seconds later. One (1)
minute and four (4) seconds later, [Appellant] returned and told
____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-S82023-17
Fuller that he had knocked somebody out. 1 Fuller and the
bartender went outside and found Dzubinski unconscious, lying in
the middle of Broadway Avenue. Paramedics and police were
called and Dzubinski was transported to Ohio Valley General
Hospital and then transferred to Allegheny General Hospital the
same evening, where he remained for 19 days, before being
transferred to a rehabilitation facility. Dzubinski suffered a severe
head injury with loss of function and loss of memory. He was
released to the rehabilitation [facility] with a feeding tube and was
unable to care for himself. He has since regained some function,
but will not return to his previous level of functioning.
PCRA Court Opinion, 7/10/17, at 2-3 (citations omitted).
After a bench trial, the trial judge convicted Appellant of aggravated
assault. On March 11, 2014, Appellant was sentenced to six to twelve years’
imprisonment. Appellant filed a timely post-sentence motion, which the trial
court subsequently denied. After Appellant filed an appeal, this Court affirmed
the judgment of sentence on March 13, 2015. In this decision, this Court
found, inter alia, that Appellant’s challenge to the discretionary aspects of his
sentence was waived by his failure to include a statement of reasons for
allowance of appeal pursuant to Pa.R.A.P. 2119(f) in his appellate brief.
Appellant did not file a petition for allowance of appeal.
On September 4, 2015, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, who filed an amended petition, arguing that trial
____________________________________________
1 At trial, Appellant testified that on the night of the assault, he followed the
victim outside to ask him why he had crushed Appellant’s beer can on the bar.
Appellant asserted that the victim became angry, called Appellant a racial slur,
and punched Appellant. Appellant admitted that he subsequently punched the
victim in the cheek, causing him to fall to the ground and strike the pavement.
Appellant left the victim lying unconscious in the street and conceded that he
made no attempt to aid the victim or call emergency personnel. N.T. Trial,
12/9/13 - 12/10/13, at 50-52.
-2-
J-S82023-17
counsel was ineffective in failing to file a petition for allowance of appeal to
the Supreme Court. On November 18, 2015, the PCRA court reinstated
Appellant’s right to appeal to the Supreme Court. On March 16, 2016, the
Supreme Court denied Appellant’s petition for allowance of appeal.
On May 3, 2016, Appellant filed the instant, timely pro se PCRA petition.2
The PCRA court appointed counsel, who instead of filing an amended petition,
filed a petition to withdraw his representation along with a Turner “no-merit”
letter. On January 5, 2017, the PCRA court issued an order allowing counsel
to withdraw and providing Appellant with notice of its intent to dismiss the
petition without a hearing pursuant to Pa.R.Crim.P. 907. On January 25,
2017, Appellant filed a pro se response to the Rule 907 notice. On March 15,
2017, the PCRA court dismissed the petition. This timely appeal followed.
In reviewing the lower court’s decision to deny Appellant’s PCRA
petition, we examine whether the PCRA court's determination “is supported
by the record and free of legal error.” Commonwealth v. Mitchell, 636 Pa.
233, 243-44, 141 A.3d 1277, 1283–84 (2016). “[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,
____________________________________________
2 A PCRA petition, including a second or subsequent petition, must be filed
within one year of the date that the judgment of sentence becomes final. See
42 Pa.C.S. § 9545(b)(1). For purposes of the PCRA, “a judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
-3-
J-S82023-17
would have entitled him to relief, or that the court otherwise abused its
discretion in denying a hearing.” Commonwealth v. Paddy, 609 Pa. 272,
291–92, 15 A.3d 431, 442 (2011) (emphasis added).
On appeal, Appellant raises two claims alleging that trial counsel
rendered ineffective assistance. It is well established that:
To prevail in a claim of ineffective assistance of counsel, a
petitioner must overcome the presumption that counsel is
effective by establishing all of the following three elements, as set
forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
975–76 (1987): (1) the underlying legal claim has arguable merit;
(2) counsel had no reasonable basis for his or her action or
inaction; and (3) the petitioner suffered prejudice because of
counsel's ineffectiveness. Commonwealth v. Dennis, 597 Pa.
159, 950 A.2d 945, 954 (2008). With regard to the second,
reasonable basis prong, we do not question whether there were
other more logical courses of action which counsel could have
pursued; rather, we must examine whether counsel's decisions
had any reasonable basis. [Commonwealth v.] Washington,
[592 Pa. 698, 927 A.2d 586,] 594 [(2007)]. We will conclude that
counsel's chosen strategy lacked a reasonable basis only if
Appellant proves that “an alternative not chosen offered a
potential for success substantially greater than the course actually
pursued.” Commonwealth v. Williams, 587 Pa. 304, 899 A.2d
1060, 1064 (2006) (citation omitted). To establish the third,
prejudice prong, the petitioner must show that there is a
reasonable probability that the outcome of the proceedings would
have been different but for counsel's ineffectiveness. Dennis,
supra at 954. We stress that boilerplate allegations and bald
assertions of no reasonable basis and/or ensuing prejudice cannot
satisfy a petitioner's burden to prove that counsel was ineffective.
Paddy, 609 Pa. at 291–92, 15 A.3d at 442–43.
First, Appellant claims that the PCRA court should have held a hearing
on his claim that trial counsel was ineffective for not subpoenaing specific
-4-
J-S82023-17
witnesses to give expert testimony. Our Supreme Court has provided the
following standards in reviewing a similar challenge:
To satisfy the “arguable merit” prong for a claim of ineffectiveness
based upon trial counsel's failure to call an expert witness, the
petitioner must prove that an expert witness was willing and
available to testify on the subject of the testimony at trial, counsel
knew or should have known about the witness and the defendant
was prejudiced by the absence of the testimony.
Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1143
(2011); Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d
1110, 1133 (2008). Prejudice in this respect requires the
petitioner to “show how the uncalled witnesses' testimony would
have been beneficial under the circumstances of the case.”
Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096, 1109
(2012) (quoting Gibson, 951 A.2d at 1134). Therefore, the
petitioner's burden is to show that testimony provided by the
uncalled witnesses “would have been helpful to the defense.” Id.(quoting Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305,
1319 (1996)).
Commonwealth v. Williams, 636 Pa. 105, 137–38, 141 A.3d 440, 460
(2016).
Specifically, Appellant argues that trial counsel should have called
expert witnesses to testify to the victim’s injuries. First, Appellant wished to
call Dr. Christine Toews, who treated the victim at Allegheny General Hospital.
Appellant argues that Dr. Toews opined in a statement to police that it was
possible that the victim sustained head fractures after the victim had a stroke,
fell, and struck his head. Second, Appellant claims that counsel should have
sought the testimony of a nurse at Ohio Valley General Hospital named
“Chris,” who made a statement to police that when the victim was brought
-5-
J-S82023-17
into the emergency room that it did not appear that his clothes were “messed
up as if he were assaulted by another.” Appellant’s Brief, at 9.
Regardless of whether these witnesses were willing, available, and
qualified to give the aforementioned testimony, we agree with the PCRA
court’s assessment that Appellant failed to allege how this testimony would
have been helpful to the defense. Dr. Toews briefly opined that the victim’s
injuries could have been caused by a stroke, but also found it possible that he
was assaulted. The nurse named “Chris” observed that the victim’s clothes
were not “messed up” when he arrived at the hospital, but admitted that he
could not rule out an assault. Appellant does not challenge the PCRA court’s
finding that this unidentified nurse was not qualified to give an expert opinion
as to the causation of the victim’s injuries.
Most importantly, Appellant admitted on the witness stand that he
assaulted the victim by punching him in the head, causing him to fall and hit
his head on the concrete. Appellant has failed to allege how he was prejudiced
by the absence of expert testimony such that there is a reasonable probability
that the outcome of the proceedings would have been different but for
counsel's failure to call these witnesses. See Paddy, supra. Accordingly, we
conclude that the PCRA court did not err in denying this claim.
Second, Appellant argues that trial counsel was ineffective in failing to
preserve his challenge to the discretionary aspects of his sentence by properly
filing a statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief.
Appellant argues that he is not required to satisfy the ineffectiveness set forth
-6-
J-S82023-17
in Pierce, supra, which requires a demonstration of actual prejudice; instead,
he argues that trial counsel’s inaction should be deemed presumptively
prejudicial as he asserts that counsel had no reasonable basis to refrain from
filing a Rule 2119(f) statement.
In United States v. Cronic, 466 U.S. 648, 658-61, 104 S.Ct. 2039,
2046-48, 80 L.Ed.2d 657 (1984), the High Court recognized a presumption of
prejudice in holding that there are some circumstances “so likely to prejudice
the accused that the cost of litigating their effect in a particular case is
unjustified.” Id. Such circumstances include situations where there was
complete denial of counsel, the state interfered with counsel’s assistance, or
counsel had an actual conflict of interest. Id.; Commonwealth v. Reaves,
592 Pa. 134, 149, 923 A.2d 1119, 1128 (2007). As noted in Reaves, our
Supreme Court has extended the presumption of prejudice in Pennsylvania to
instances where counsel’s lapse ensured the total failure of an appeal
requested by the client, including, (1) where counsel failed to file a requested
direct appeal, see Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564(1999), (2) where counsel failed to file a requested petition for allowance of
appeal, see Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003),
and (3) where counsel failed to file a statement of matters complained of on
appeal pursuant to Pa.R.A.P. 1925(b), see Commonwealth v. Halley, 582
Pa. 164, 870 A.2d 795, 800 (2005).
In Reaves, the Supreme Court noted that a trial counsel’s failure to file
a motion for reconsideration of sentence following violation of probation
-7-
J-S82023-17
proceedings did not warrant a presumption of prejudice as counsel’s lapse did
not ensure the total failure of the appeal, but at most “narrowed the ambit”
of the appeal counsel pursued. Reaves, 592 Pa. at 149, 923 A.2d 1119,
1128. The Reaves Court emphasized that “[t]he difference in degree between
failures that completely foreclose appellate review, and those which may
result in narrowing its ambit, justifies application of the presumption [of
prejudice] in the more extreme instance.” Id. As Reaves Court concluded
that a presumption of prejudice was not warranted, it required the appellee to
satisfy the Pierce actual prejudice standard. Ultimately, the Reaves Court
reversed this Court’s finding of ineffectiveness, as it concluded that the
appellee failed to show actual prejudice, as the PCRA judge had imposed the
appellee’s sentence and indicated that he would have imposed the same
sentence given the appellee’s “horrendous reporting record.” Id. at 155-56,
932 A.2d at 1132.
In this matter, as in Reaves, trial counsel’s failure to include a Rule
2119(f) statement in his appellate brief did not result in a total deprivation of
his appellate rights, but narrowed the ambit of his appeal. As a result, we find
that he was required to demonstrate actual prejudice pursuant to Pierce to
successfully raise this ineffectiveness claim on collateral review.
Moreover, even assuming for the sake of argument that Appellant had
met the first two prongs of the Pierce test in demonstrating that his claim
has arguable merit and that counsel had no reasonable basis for refraining to
file a Rule 2119(f) statement, we agree with the PCRA court’s finding that
-8-
J-S82023-17
Appellant failed to show actual prejudice, that is, he failed to rebut the
presumption of effectiveness by showing “there is a reasonable probability
that the outcome of the proceedings would have been different but for
counsel's ineffectiveness.” See Paddy, supra.In this case, the trial court imposed a standard range sentence after
reviewing a pre-sentence report. We observe that:
[w]here the sentencing court had the benefit of a presentence
investigation report (“PSI”), we can assume the sentencing court
was aware of the relevant information regarding the defendant's
character and weighed those considerations along with mitigating
statutory factors. Further, where a sentence is within the standard
range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.
Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013) (citations
and internal quotation marks omitted). In addition, the trial court set forth
its rationale for imposing the sentence, pointing to the grave harm Appellant
caused the victim and noting Appellant’s extensive criminal record. Moreover,
the trial court doubted Appellant’s ability to overcome substance abuse issues
and to reform his behavior as prior rehabilitation programs and sentences had
proven ineffective. Thus, we have no reason to believe that, had trial counsel
properly included a Rule 2119(f) statement in his appellate brief, that this
statement alone would have led the court to reduce its sentence. Thus, we
conclude that the PCRA court did not err in denying this ineffectiveness claim.
For the foregoing reasons, we affirm.
Order affirmed.
-9-
J-S82023-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/26/2018
- 10 -