Com. v. Hardy, K., Jr.

J. A26027/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KENNETH M. HARDY JR., : No. 703 MDA 2015
:
Appellant :
Appeal from the PCRA Order, February 26, 2015,
in the Court of Common Pleas of Mifflin County
Criminal Division at No. CP-44-CR-0000453-2003
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 01, 2015
Kenneth M. Hardy, Jr., appeals pro se from the February 26, 2015
order dismissing his first petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Finding that appellant’s claims
lack merit, we affirm.
The relevant facts of this case can be found in this court’s opinion in
response to appellant’s direct appeal. Commonwealth v. Hardy, 918 A.2d
766 (Pa.Super. 2007), appeal denied, 940 A.2d 362 (Pa. 2008):
Appellant, his infant son (Victim), Appellant’s
girlfriend (who was not Victim’s mother), and the
girlfriend’s own children slept at the same home on
the night of February 21, 2003. Victim did not sleep
well and, according to Appellant, cried and “fussed”
all night.
The next morning, Appellant’s girlfriend
departed their mutual residence, leaving Appellant
* Retired Senior Judge assigned to the Superior Court.
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and Victim as the only persons therein. When the
girlfriend departed, Victim appeared to be unharmed.
For roughly the next two hours, Victim was in
Appellant’s exclusive custody and care. At the end
of that time, Appellant took Victim to a hospital
because it appeared that Victim was dying. Medical
personnel determined that, along with rib fractures,
Victim had a swollen, bleeding brain. Some two
days later, Victim died from his injuries.
Expert medical testimony established that
Victim sustained his fatal injuries when he was under
Appellant’s exclusive control. One expert testified
that an immense amount of force was applied to
Victim’s head in a very short duration, damaging the
brain and causing it to bleed. While the expert could
not say that Victim was shaken, he did testify that
the probability was high that Victim was grabbed and
slammed against something.
A second expert testified that Victim was
shaken violently and that, in the course of being
shaken, his head struck an object, thus causing his
brain to swell and bleed. He indicated that the
injuries revealed a case of Shaken Baby Syndrome
or Shaken Impact Syndrome. The expert also
testified that Victim suffered a rib fracture from
being squeezed violently during the shaking episode.
[During trial,] Appellant contended that he was
sleeping on a couch with Victim and that Victim fell
from the couch into a nearby, padded bassinet or
onto the floor. The medical evidence showed that
Victim’s injuries could not have occurred from the fall
which Appellant described.
Id. at 770. In his PCRA petition, appellant produces another alternate
theory of the case, in which he alleges that the infant victim died as a result
of injuries sustained approximately two and a half weeks prior his death
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when he was struck in the head by a Nerf football thrown by the infant’s
mother’s three-year-old son. (See appellant’s brief, exhibit “B.”)
The PCRA court provided the following relevant procedural history:
Kenneth M. Hardy, Jr. (Defendant) was
arrested on July 16, 2003 in Mifflin County.
Defendant was charged with two (2) counts
including: Criminal Homicide (18 Pa.C.S.A.
§ 2501(a)) and Endangering Welfare of Children
(18 Pa.C.S.A. §4304(a)). A Preliminary Hearing was
held August 7, 2003 before District Justice
Michael M. Colyer. An Omnibus Pre-Trial Motion was
filed October 23, 2003, requesting the Court to
appoint an investigator and a medical expert. On
December 11, 2003, the Court authorized the
Defendant to retain a medical expert for the purpose
of reviewing medical records, police records, and
other documents and to provide an opinion to
defense counsel regarding the manner of death.
Defendant was also authorized to retain a private
investigator. During this time period, Defendant
filed a Motion for Continuances on October 24, 2003,
May 11, 2004 and December 19, 2004, in order to
evaluate and prepare his case.
On August 10, 2004, Defendant entered a
negotiated guilty plea to the charge of Criminal
Homicide, with Count II, Endangering Welfare of
Child as Parent to be nol prossed. A pre-sentence
investigation was ordered on August 10, 2004. On
September 29, 2004, Defendant filed a pro se Motion
for Change of Appointed New Counsel. On
September 30, 2004, Defendant filed a Motion to
Withdraw Guilty Plea. On October 07, 2004,
Defendant filed a pro se Petition For Release From
Incarceration on Nominal Bail, Pursuant to Pa.R.C.P.,
Rule 600. Defendant’s Motion to Withdraw his Guilty
Plea and his Petition for new counsel were granted
on October 21, 2004. His Petition for Release from
Incarceration was denied. Mark J. Remy, Esquire
was appointed to represent Defendant on
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November 4, 2004. Defendant, through counsel,
filed a Motion for Continuance on January 18, 2005.
A two-day trial was held, and on March 10,
2005, a jury found Defendant guilty of Murder of the
Third Degree and Endangering the Welfare of a
Child. He was sentenced on March 16, 2005, to a
period of incarceration of not less than eighteen (18)
years nor more than forty (40) years. On March 28,
2005, Defendant filed a Post-Sentence Motion asking
the Court to modify his sentence and requesting new
counsel be appointed. The Court appointed Ralph A.
Germak, Esquire on April 14, 2005.
On July 13, 2005, Attorney Germak filed
Post-Sentence Motions alleging ineffectiveness of
trial counsel, prosecutorial misconduct and trial court
errors. The Court denied the motions on August 24,
2005. Defendant filed a Notice of Appeal on
September 13, 2005 and a Statement of Matters
Complained of on October 3, 2005. The Superior
Court of Pennsylvania declined to address
Defendant’s ineffectiveness claims and affirmed the
judgment of sentence on February 23, 2007. A Final
Order denying Defendant’s Request for Appeal to the
Pennsylvania Supreme Court was filed on January 2,
2008. Attorney Germak filed a Motion to Withdraw
and the Court granted his Motion on February 8,
2008.
On January 11, 2008, Defendant filed a
Petition for Relief under the Post-Conviction Relief
Act or Writ of Habeas Corpus and Attorney David G.
Smith was appointed, as replacement counsel, on
February 8, 2008. Defendant filed a Motion
Requesting Funding to Hire an Expert Witness and a
Hearing on said Motion was scheduled for January 2,
2009. On January 21, 2009, the Court denied
Defendant’s motion.
On December 8, 2014, Defendant’s subsequent
appointed Counsel, Attorney Justin P. Miller filed a
Petition for Leave to Withdraw, upon providing
Defendant with a No Merit letter. Defendant filed
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Written Objections to the No Merit Letter and the
Court provided Defendant with a Notice of Intention
to Dismiss on January 21, 2015.
PCRA court order and opinion, 2/26/15 at 1-3. Appellant filed written
objections to the notice of intention to dismiss on February 16, 2015, and
the PCRA court dismissed appellant’s PCRA petition on February 26, 2015.
On March 24, 2015, appellant filed timely notice of appeal to this court (see
discussion, infra). The PCRA court ordered appellant to produce a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),
on April 28, 2015. Appellant filed his concise statement on May 4, 2015,
and the PCRA court issued a statement in compliance with Rule 1925(a) on
May 12, 2015.
Appellant raises the following issues for our review:
I. Whether PCRA counsel meaningfully
participated in the adjudication of Appellant’s
first counseled PCRA petition?
II. Whether the PCRA Court erred as a matter of
law in reviewing claims raised in Appellant’s
second PCRA petition?
III. Whether the PCRA Court erred as a matter of
law or committed an abuse of discretion in
denying Appellant’s PCRA petition without
assistance of an expert witness by which was
necessary in the preparation of an Amended
PCRA petition?
Appellant’s brief at 4.
Before considering the issues appellant has raised on appeal, we must
first address whether appellant’s review is timely, and by extension, whether
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this court has jurisdiction over the instant appeal. The PCRA court stated
that this court does not have jurisdiction in this case because appellant filed
his notice of appeal after the 30-day appeal period had expired, and by so
doing, waived his right to an appeal. (PCRA court opinion, 5/12/15 at 3.)
We do not agree.
Appellant’s petition for relief pursuant to the PCRA was denied by the
PCRA court on February 26, 2015. Appellant had 30 days to file a notice of
appeal to this court, pursuant to Pa.R.A.P. 903. On March 24, 2015,
appellant filed a timely, albeit defective, notice of appeal to this court by
depositing his notice of appeal in the mailbox at SCI Benner Township. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (deems a notice
of appeal filed when an appellant deposits the notice of appeal in the prison
mailbox under what is commonly referred to as the “Prisoner Mailbox Rule”).
The Jones court also held that the Prisoner Mailbox Rule applies to all
appeals by pro se prisoners. Id. An appellant bears the burden of
establishing that he or she complied with the Prisoner Mailbox Rule. Id.Acceptable forms of verification of compliance with the Prisoner Mailbox Rule
include, inter alia, a certificate of mailing, a “cash slip” from prison
authorities, or an affidavit attesting to the date the notice was deposited in
the prison mailbox. Id.In the instant appeal, appellant provided an affidavit in which he
attested that he deposited his notice of appeal into the mailbox at
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SCI Benner Township. On April 1, 2015, the Mifflin County Court of
Common Pleas Clerk of Courts mailed appellant a letter indicating that his
notice of appeal dated March 24 was defective because it did not include
enough copies. Appellant’s initial notice of appeal was not time-stamped by
the Clerk of Courts. Appellant filed a revised notice of appeal on April 22,
2015, which was time-stamped by the Clerk of Courts. Our supreme court
has determined that a clerk of courts’ failure to time-stamp a notice of
appeal “does not mean that the [appellant’s] appeal is improperly before
[the appellate court.]” Commonwealth v. Williams, 106 A.3d 583, 590
(Pa. 2014).
We find that appellant in the instant case filed a timely, albeit
defective, notice of appeal. Therefore, this court has jurisdiction to consider
appellant’s appeal. We shall now consider the issues appellant has raised for
our review.
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record,
such determinations are binding on a reviewing
court. Id. at 305 (citations omitted). To obtain
PCRA relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
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id. § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[.] Id.
§ 9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [appellant] could
have had review as a matter or right has ruled on
the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but
failed to do so before trial, at trial, . . . on appeal or
in a prior state postconviction proceeding.” Id.
§ 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).
Under his first issue, appellant alleges ineffective assistance of his
PCRA counsel. Although in his brief he asserts layered ineffectiveness, it is
unclear as to the specific ineffectiveness directed to specific attorneys.
Appellant explicitly references ineffective assistance from his trial counsel,
Mark J. Remy, Esq., his PCRA counsel, Justin P. Miller, Esq., and Miller’s
predecessor, David G. Smith, Esq.1
The governing legal standard of review of
ineffective assistance of counsel claims is
well-settled:
[C]ounsel is presumed effective,
and to rebut that presumption, the PCRA
petitioner must demonstrate that
counsel’s performance was deficient and
that such deficiency prejudiced him.
1
We note that the lower court has appointed six different attorneys to
represent appellant throughout this matter. Because appellant only
specifically references Attorneys Remy, Miller, and Smith in his brief, we
shall only analyze their respective performances for the purposes of
appellant’s ineffective assistance of counsel claim. See Commonwealth v.
Gould, 912 A.2d 869, 873 (Pa.Super. 2006) (citations omitted) (this court
cannot consider issues not fully developed in appellant’s brief).
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Strickland v. Washington, 466 U.S.
668 (1984). This Court has described
the Strickland standard as tripartite by
dividing the performance element into
two distinct components.
Commonwealth v. Pierce, 527 A.2d
973, 975 (Pa. 1987). Accordingly, to
prove counsel ineffective, the petitioner
must demonstrate that (1) the
underlying legal issue has arguable
merit; (2) counsel’s actions lacked an
objective reasonable basis; and (3) the
petitioner was prejudiced by counsel’s
act or omission. Id. A claim of
ineffectiveness will be denied if the
petitioner’s evidence fails to satisfy any
one of these prongs.
Commonwealth v. Busanet, 54 A.3d 34, 45 (Pa.
2012) (citations formatted). Furthermore, “[i]n
accord with these well-established criteria for review,
[an appellant] must set forth and individually discuss
substantively each prong of the Pierce test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910
(Pa.Super. 2009).
Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015).
We shall first address appellant’s claims of ineffectiveness against
Attorney Remy. In order to be granted relief for an ineffective assistance of
counsel claim, an appellant must, as the Perzel court noted, substantively
discuss each individual prong of the Pierce test. The only allegations that
appellant makes regarding Attorney Remy’s assistance is that
Attorney Remy fail[ed] “to investigate, obtain and present [a] forensic
medical expert to aid development of defense to rebut Commonwealth’s
theory in prosecuting their (sic) case.” (Appellant’s brief at 10-11.)
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This is inadequate to establish that Attorney Remy’s assistance to
appellant was ineffective. “Such undeveloped claims, based on boilerplate
allegations, cannot satisfy appellant’s burden of establishing
ineffectiveness.” Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008)
(citations omitted). Therefore appellant’s claim of ineffective assistance of
counsel as to Attorney Remy’s performance at trial is without merit.
We now turn to appellant’s allegation that Attorney Miller failed to
provide effective assistance as appellant’s PCRA counsel. It is well settled
that a petitioner is entitled to effective assistance of counsel when filing his
or her first petition pursuant to the PCRA. Commonwealth v. Albrecht,
720 A.2d 693, 700 (Pa. 1998). The Albrecht court also established the
following standard for effective assistance of PCRA counsel:
[W]e will grant relief only if Appellant has shown that
“counsel's conduct, by action or omission, was of
questionable legal soundness; that the conduct
complained of had no reasonable basis designed to
effectuate the client’s interest; and that counsel’s
conduct had an adverse effect on the outcome of the
proceedings.” Commonwealth v. Clark, 710 A.2d
31, 35 (Pa. 1998). If it is clear that Appellant has
not demonstrated that counsel's act or omission
adversely affected the outcome of the proceedings,
the claim may be dismissed on that basis alone and
the court need not first determine whether the first
and second prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357
(Pa. 1995).
Albrecht, supra at 701.
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In the case sub judice, it is clear that appellant has not established
that PCRA counsel’s failure to pursue appellant’s theory of the underlying
case affected the outcome of the proceedings. Appellant devotes much of
the first argument section of his brief to his theory of the case where he
discusses this theory that the victim’s previously unreported sleep apnea and
accident involving a Nerf football may have contributed to the victim’s death.
(Appellant’s brief at 13.) Appellant also avers that he “requires PCRA
counsel to consult and present forensic medical expert[s] to determine
whether ‘said’ ‘football’ incident [was] the proximate cause of [the victim’s]
demise.” (Id.)
As stated in Attorney Miller’s Turner/Finley2 letter, this claim has no
merit. The Commonwealth presented testimony from two expert witnesses
that stated that the victim’s death was the result of “non-accidental trauma.”
Moreover, a potential expert witness that was consulted by Attorney Remy in
preparation for trial stated that she was inclined to agree with the
Commonwealth’s experts.3 Appellant has also failed to name a potential
expert witness who would be able to testify that the infant’s brain injury was
the result of being struck by a Nerf football, instead relying on pure
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 607 (Pa.Super. 1988).
3
The potential witness, Dr. Kristie L. Kauffman, stated that the “lesions in
the brain ‘result from forceful deformation of the head, unless a massive
accidental event is associated, their presence is highly suggestive of abusive
force.’” (Docket #81.)
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speculation that such an expert exists. Moreover, the PCRA court denied
appellant’s motion for funding for an expert witness. (Docket #55.)
We determine that Attorney Miller’s failure to find an expert who can
corroborate appellant’s theory of the case was not ineffective assistance, and
appellant has failed to establish that the outcome of the proceedings would
have been any different.
Appellant also avers that Attorney Miller failed to comply with the
requirements set forth by Turner and Finley. Specifically, appellant alleges
that Attorney Miller, “failed to address and/or investigate law and facts
relative to appellant’s claims raised in his timely filed first counseled PCRA
petition.” (Appellant’s brief at 10.)
The Turner/Finley decisions provide the manner for
post-conviction counsel to withdraw from
representation. The holdings of those cases
mandate an independent review of the record by
competent counsel before a PCRA court or an
appellate court can authorize an attorney’s
withdrawal. The necessary independent review
requires counsel to file a “no-merit” letter detailing
the nature and extent of his review and list each
issue the petitioner wishes to have examined,
explaining why those issues are meritless. The PCRA
court . . . then must conduct its own independent
evaluation of the record and agree with counsel that
the petition is without merit.
Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super. 2014),
quoting Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012),
appeal denied, 64 A.3d 631 (Pa. 2013).
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A review of Attorney Miller’s no-merit letter indicates that he has
complied with the Turner/Finley requirements. Attorney Miller listed each
issue that appellant wished to have examined, and then described in detail
the reasons why all of appellant’s issues were without merit. (See docket
#81.) Attorney Miller provided effective assistance to appellant for his PCRA
petition. Therefore, appellant’s first issue has no merit.
In his second issue for our review, appellant alleges that the PCRA
court erred by addressing his PCRA petition filed pro se on October 11,
2012. In his October 11, 2012 PCRA petition, appellant alleged that his
PCRA counsel at the time, David G. Smith, Esq., was providing him
ineffective assistance. Because appellant’s October 11, 2012 PCRA petition
alleges new matter unrelated to his original January 8, 2008 PCRA petition,
the October 11, 2012 petition is treated as a new petition. Commonwealth
v. Porter, 35 A.3d 4, 12 (Pa. 2012). A petitioner is prohibited from filing a
subsequent PCRA petition while the original petition is still being reviewed by
a court. Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).
Therefore, appellant’s October 11, 2012 PCRA petition should have been
dismissed.
In his third issue for our review, appellant alleges that the PCRA court
erred by denying appellant’s PCRA petition without first considering a
potential expert witness. It is unclear, however, based on the contents of
his brief, if appellant is actually alleging that the PCRA court erred when it
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refused to appoint an expert witness to assist appellant’s petition; or if he is
alleging ineffective assistance of PCRA counsel for failing to secure an expert
witness. We shall discuss both allegations.
We first address whether the PCRA court erred by refusing to appoint
an expert witness, Kirk L. Thibault, Ph.D., to corroborate the theories raised
in appellant’s petition--specifically, the theory that the infant’s death was
caused by injuries sustained as a result of being struck on the head by a
Nerf football several weeks before the infant’s death. Our supreme court
has stated that:
The provision of public funds to hire experts to assist
in the defense against criminal charges is a decision
vested in the sound discretion of the court and a
denial thereof will not be reversed absent an abuse
of that discretion. At the trial stage, “an accused is
entitled to the assistance of experts necessary to
prepare a defense.” This court has never decided
that such an appointment is required in a PCRA
proceeding. We must review the PCRA court’s
exercise of its discretion in the context of the
request, that an expert’s testimony is necessary to
establish his entitlement to relief under 42 Pa.C.S.
§ 9543(a)(2)(vi), the provision of the PCRA which
deals with claims of innocence based on
after-discovered evidence.[4]
Commonwealth v. Reid, 99 A.3d 470, 505 (Pa. 2014), quoting Albrecht,
supra at 707 (emphasis added).
The PCRA court, in addressing appellant’s claim, stated that Thibault’s
testimony would not have undermined the Commonwealth’s case due to the
4
Appellant does not raise such a claim in the instant appeal.
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overwhelming evidence presented by the Commonwealth, which included
two expert witnesses who testified that the victim’s death was caused by
“non-accidental trauma.” (PCRA court opinion, 5/12/15 at 7.) We find that
appellant was not entitled to have a court-appointed expert witness assist in
his litigation of his PCRA petition, and this issue has no merit.
We now address whether PCRA counsel was ineffective in failing to
secure an expert witness who was willing to testify on behalf of appellant.
Appellant is unable to establish by a preponderance of the evidence that he
was prejudiced by Attorney Smith’s failure to secure Thibault’s services, as is
required to prevail on an ineffective assistance of counsel claim, see Perzel,
supra. In order to establish prejudice resulting from counsel failing to call a
witness, a petitioner must be able to prove by a preponderance of the
evidence that,
(1) [T]he witness existed; (2) the witness was
available to testify for the defense; (3) counsel
knew, or should have known, of the existence of the
witness; (4) the witness was willing to testify for the
defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014), citing
Commonwealth v. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012) (citations
omitted).
In the case sub judice, appellant has failed to meet the fourth prong
under Wantz, which requires that the witness is willing to testify on behalf
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of appellant. As the PCRA court noted in its notice to dismiss appellant’s
PCRA petition, “Counsel of record has sent numerous letters, telephone calls,
and messages to Dr. Thibault and has been unable to communicate with
him.” (PCRA court order and opinion, 2/26/15 at 7.) The numerous
unsuccessful attempts by Attorney Smith to reach Thibault indicate that
Thibault was unwilling to testify on behalf of appellant. Therefore, appellant
is not able to establish by a preponderance of the evidence that he was
prejudiced by Attorney Smith’s failure to secure an expert witness’s services,
and his third issue is without merit.
Order affirmed.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 12/1/2015
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