Com. v. Culver, H.

J-S54019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HENRY CULVER
Appellant No. 31 WDA 2017
Appeal from the PCRA Order December 14, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008632-2011
BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 13, 2017
Henry Culver appeals pro se from the December 14, 2016 order
entered in the Allegheny County Court of Common Pleas dismissing his
petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-46. We affirm.
This Court set forth the following factual and procedural history in
deciding Culver’s direct appeal:
The trial court set forth the background of this case, as
follows:
The Commonwealth’s evidence established that
on December 14, 2011, the victim, Scott Goodman,
was at the home of his father, Albert Goodman. The
elder Goodman was sitting in his home when he
heard an argument coming from the kitchen. He
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S54019-17
recognized both voices[:] that of his son and that of
[Culver], with whom he was also familiar. Mr.
[1]
Goodman walked into the kitchen and saw [Culver]
shoot his son. [Culver] then turned to Mr. Goodman
and told him to back off or he would be next. Mr.
Goodman then fled out the front door while [Culver]
left through the back door.
At approximately the same time that Mr.
Goodman was leaving his house, a witness,
[Rasheeda] Saxton, was arriving. She saw [Culver
come from the back of the house,] get into his car
and drive off. While she was walking towards the
Goodman residence, she heard Albert Goodman
calling for help and, as she went around to the back,
she saw Scott Goodman lying on the ground,
bleeding. [When police arrived on the scene, Ms.
Saxton told them that “Hank (meaning [Culver]) did
this.”] Scott Goodman was taken to the hospital
where he eventually died of his wounds.
LaPerry Raymond, the mother of [Rasheeda]
Saxton, also testified. She said that during that
evening, she was on the phone with Scott Goodman.
She heard a door slam and Scott told her to hold on.
He then told her that it was “Hank” and he would call
her back later. A few minutes later, her daughter
called and told her that Scott Goodman had been
shot. . . .
[Detective Kenneth Ruckel of the Allegheny
County police department testified that he found a
black leather glove with a zipper near the cuff at the
scene of the murder. A dark brown glove that was
inside the black one as though the two were worn
together contained Culver’s DNA.]
____________________________________________
1
Albert Goodman’s trial testimony was video-recorded in advance of
trial because he was in poor health. Goodman died before trial, and the jury
was shown the video-recorded testimony. See Commonwealth v. Culver,
No. 321 WDA 2013, unpublished mem. at 2 n.2 (Pa.Super. filed Oct. 1,
2014).
-2-
J-S54019-17
The Commonwealth also presented evidence
concerning [Culver]’s arrest sometime later in Miami.
...
After receiving a tip as to where [Culver] might
be found, Deputy U[.]S[.] Marshal[] Ty Fallow and
others went to this location [at a rescue mission in
Miami, Florida.] They observed [Culver] and
Marshal[] Fallow addressed [him], “Mr. Culver, Hank,
Henry.” At this point, [Culver] turned around.
Later, as they were asking him his name, he told
them that his name was Rocky Wallace. He showed
them an ID [from the rescue mission] that bore the
name Rocky Wallace but had his photograph on it.
[Culver] was [detained] and transported to the Dade
County Jail [where fingerprint analysis confirmed
that he was Henry Culver and he was then arrested.]
He was in a holding cell for a lengthy time as he
waited his turned to be processed. The defendants’
names are called out frequently. Marshal[] Fallow
observed that on all but one occasion when the jail
called out for Henry Culver, [Culver] did not respond.
Once, however, when a nurse called the name Henry
Culver, he did verbally respond.
Marshal[] Fallow also testified that he was
present when [Culver] was provided with several
intake forms including a property form. This form
itemizes the property that was on his person when
he was arrested. It has a place for the inmate’s
signature. Marshal[] Fallow observed [Culver] sign
the name Rocky Wallace to that form. [The
Commonwealth] introduced [the document] into
evidence at trial.
(Trial Court Opinion, 1/17/14, at 3-4, 5). . . .
At the conclusion of trial, the jury convicted [Culver]
of [first-degree murder, firearms not to be carried
without a license, terroristic threats, and simple assault
-3-
J-S54019-17
– physical menace.2 In a bifurcated nonjury trial, the
trial court convicted Culver of persons not to possess
firearms.3] On December 13, 2012, the court
sentenced [Culver] to a term of life in prison without
the possibly of parole on the murder of the first degree
conviction, plus a concurrent aggregate term of
imprisonment of not less than nine and one-half nor
more than nineteen years on the remaining counts.
The court denied [Culver]’s post-sentence motions on
January 17, 2013.
Commonwealth v. Culver, No. 321 WDA 2013, unpublished mem. at 1-4
(Pa.Super. filed Oct. 1, 2014) (some alterations in original, footnotes
omitted).
On February 14, 2013, Culver timely filed a notice of appeal. On
October 1, 2014, this Court affirmed Culver’s judgment of sentence. Culver
then filed a petition for allowance of appeal, which our Supreme Court
denied on March 31, 2015.
On July 23, 2015, Culver, acting pro se, filed a PCRA petition. On
September 1, 2015, the PCRA court appointed counsel. On July 1, 2016,
counsel filed a motion to withdraw as counsel and a Turner/Finley4 “no-
merit” letter. On September 21, 2016, the PCRA court granted counsel’s
motion to withdraw and gave notice of its intent to dismiss Culver’s petition
____________________________________________
2
18 Pa.C.S. §§ 2502(a), 6106(a)(1), 2706(a)(1), and 2702(a)(3),
respectively.
3
18 Pa.C.S. § 6105(a)(1).
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
-4-
J-S54019-17
under Pennsylvania Rule of Criminal Procedure 907. On December 14,
2016, the PCRA court dismissed Culver’s petition. On December 16, 2016,
Culver filed a response to the notice of intent to dismiss, asserting that he
had not seen the notice of intent to dismiss and only became aware of it
after being informed that his PCRA petition had been dismissed. On January
4, 2017, Culver timely filed a notice of appeal.
Culver raises six issues on appeal:
1. Did the ineffective assistance of [Culver]’s PCRA Counsel
and the PCRA Court’s failure to provide [Culver] with his
trial transcripts combine to deprive [Culver] of his due
process rights under the state and federal constitutions?
2. Did the PCRA Court err in dismissing without a hearing the
claim that Trial Counsel . . . was ineffective for failing to
present expert witness testimony concerning the DNA
sample taken from the gloves found at the scene of the
homicide?
3. Did the PCRA Court err in dismissing without a hearing the
claim that Trial Counsel . . . was ineffective for failing to
properly prepare for trial by interviewing witnesses LaPerry
Raymond and Rasheeda Saxton before they testified?
4. Did the PCRA Court err in dismissing without a hearing the
claim that Trial Counsel . . . was ineffective for failing to
obtain medical records from Jefferson Memorial Clinic in
Miami, Florida that would have explained that [Culver]
went to Florida seeking medical treatment, not to avoid
apprehension by the police?
5. Did the PCRA Court err in denying without a hearing the
claim that Trial Counsel . . . was ineffective for failing to
challenge Albert Goodman’s competency to testify?
6. Was trial counsel ineffective for failing to properly impeach
Albert Goodman’s testimony?
-5-
J-S54019-17
Culver’s Br. at 7 (suggested answers omitted). For ease of disposition, we
address Culver’s issues out of order.
Our standard of review from the denial of PCRA relief “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). We will not disturb the
PCRA court’s factual findings “unless there is no support for [those] findings
in the certified record.” Commonwealth v. Melendez-Negron, 123 A.3d
1087, 1090 (Pa.Super. 2015).
Culver asserts a number of trial counsel ineffectiveness claims.
To prevail on . . . [ineffective assistance of counsel] claims,
[the PCRA petitioner] must plead and prove, by a
preponderance of the evidence, three elements: (1) the
underlying legal claim has arguable merit; (2) counsel had
no reasonable basis for his action or inaction; and (3) [the
petitioner] suffered prejudice because of counsel’s action
or inaction.
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). “The law
presumes counsel was effective[.]” Commonwealth v. Miner, 44 A.3d 684,
687 (Pa.Super. 2012). “A claim of ineffectiveness will be denied if the
petitioner’s evidence fails to meet any of these prongs.” Commonwealth
v. Williams, 980 A.2d 510, 520 (Pa. 2009).
First, Culver argues that trial counsel was ineffective because counsel
did not present an expert witness to refute the Commonwealth’s expert
witness testimony on the DNA evidence recovered. According to Culver,
when the Commonwealth provided trial counsel the DNA test reports, “[s]he
-6-
J-S54019-17
immediately sought a postponement because she found the report troubling
. . . [and] told [Culver] it was necessary to hire a DNA expert to rebut the
Commonwealth’s contention.” Culver’s Br. at 17. Culver asserts that trial
counsel told him “that the DNA science the Commonwealth was using was
questionable at best . . . .” Id. At trial, however, counsel did not present a
rebuttal DNA expert witness. Culver asserts that trial counsel “never gave a
reason and never offered an explanation.” Id. at 18. For these reasons,
Culver argues that trial counsel had no reasonable basis for withholding
expert testimony, as “testimony from a competing expert on such a critical
issue would have been more convincing than . . . argument from [trial]
counsel” and his “innocence claim would have been considerably more
compelling than a simple denial of guilt.” Id. at 20. We disagree.
With respect to claims of ineffectiveness for failing to call an expert
rebuttal witness, our Supreme Court has stated that:
[t]he mere failure to obtain an expert rebuttal witness is
not ineffectiveness. Appellant must demonstrate than an
expert witness was available who would have offered
testimony designed to advance appellant’s cause. Trial
counsel need not introduce expert testimony on his client’s
behalf if he is able effectively to cross-examine prosecution
witnesses and elicit helpful testimony. Additionally, trial
counsel will not be deemed ineffective for failing to call a
medical, forensic, or scientific expert merely to critically
evaluate expert testimony [that] was presented by the
prosecution. Thus, the question becomes whether or not
[defense counsel] effectively cross-examined [the
Commonwealth’s expert witness].
-7-
J-S54019-17
Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (internal
quotations and citation omitted; alterations in original).
We conclude that the PCRA court did not err in dismissing Culver’s
claim. 5 The PCRA court correctly observed that Culver’s claim fails because
“there was no reason to believe that a DNA expert retained by [Culver]
would have come to a conclusion different from that which was reached by
the Commonwealth expert.” PCRA Ct. Op., 9/21/16, at 5. In addition, our
review of the trial testimony shows that trial counsel effectively cross-
examined the Commonwealth’s expert witness, pointing out possible
inconsistencies in the results and flaws in the DNA analysis. See N.T., 9/18-
21/16, at 288-303. Because Culver failed to show that he had an expert
who would testify differently than the Commonwealth’s expert and trial
counsel effectively cross-examined the Commonwealth’s expert witness, trial
counsel was not ineffective for not presenting a rebuttal expert witness.
Accordingly, Culver’s claim lacks merit.
Next, Culver claims that trial counsel was ineffective because she did
not interview witnesses LaPerry Raymond and Rasheeda Saxton before trial.
According to Culver, his trial counsel received statements from both
____________________________________________
5
The PCRA court also found that the DNA evidence was merely
circumstantial because it only placed Culver’s DNA at the scene. According
to the PCRA court, the direct evidence, specifically the eyewitness testimony
of Albert Goodman and Rasheeda Saxton, made the DNA evidence non-
essential to the Commonwealth’s case.
-8-
J-S54019-17
witnesses in discovery. Culver asserts that when trial counsel determined
that both witnesses would be testifying against Culver, she “felt that it was
crucial that she . . . interview the women prior to trial” but never did so.
Culver’s Br. at 23.
With respect to interviewing witnesses prior to trial, our Supreme
Court has stated that
trial counsel has a general duty to undertake reasonable
investigations or make reasonable decisions which render
particular investigations unnecessary. The duty to
investigate, of course, may include a duty to interview
certain potential witnesses; and a prejudicial failure to
fulfill this duty, unless pursuant to a reasonable strategic
decision, may lead to a finding of ineffective assistance.
Nevertheless, we have never held that trial counsel is
obligated to interview every Commonwealth witness prior
to trial. The failure of trial counsel to interview a particular
witness prior to trial does not constitute ineffective
assistance of counsel unless there is some showing that
such an interview would have been beneficial to the
defense under the facts and circumstances of the case.
Commonwealth v. Mitchell, 105 A.3d 1257, 1276 (Pa. 2014) (internal
quotations and citations omitted).
In its opinion, the PCRA court concluded that this claim lacked merit
because trial counsel cross-examined these witness effectively, Culver “did
not explain how a pre-trial interview of an opposing witness would have
change[d] the outcome of the trial[,]” and the witnesses “could [not] have
been compelled to submit to such an interview.” PCRA Ct. Op., 9/21/16, at
5. After reviewing the notes of testimony, we agree with the PCRA court’s
-9-
J-S54019-17
analysis and conclude that it did not err in dismissing this ineffectiveness
claim.
Next, Culver argues that trial counsel was ineffective for failing to
obtain medical records that would have shown that Culver traveled to Florida
to be treated for an illness. According to Culver, he told trial counsel that
while he was on parole, he was diagnosed as possibly having cancer and
informed his parole officer. While the parole officer recommended that
Culver obtain a second opinion, Culver saw an advertisement for a medical
clinic in Miami, Florida. Knowing “that his [p]arole [o]fficer would not permit
him to travel across state lines,” Culver chose to travel under the assumed
name of “Rocky Wallace.” Culver’s Br. at 25.
Culver contends that his trial counsel told him that it would be
beneficial to obtain the medical records of “Rocky Wallace” from the medical
clinic, but trial counsel never attempted to obtain them and gave multiple
excuses as to why she could not obtain them. According to Culver, trial
counsel had no reasonable basis for failing to obtain these records, and this
failure prejudiced him because the only inference the jury could draw from
his travel was that he fled to avoid apprehension. We disagree.
With respect to ineffectiveness claims based on a failure to investigate,
our Supreme Court has stated that
[c]ounsel has a general duty to undertake reasonable
investigations or make reasonable decisions that render
particular investigations unnecessary. Counsel’s strategic
choices made after less than a complete investigation are
considered reasonable, on a claim of ineffective assistance,
- 10 -
J-S54019-17
precisely to the extent that reasonable professional
judgments support limitations on the investigation. Failure
to conduct a more intensive investigation, in the absence
of any indication that such investigation would develop
more than was already known, is simply not
ineffectiveness.
Commonwealth v. Eichinger, 108 A.3d 821, 847 (Pa. 2014) (internal
citations omitted).
The PCRA court concluded that this claim was meritless:
The fact that [Culver] received medical care in Florida is
not inconsistent with him travelling there to avoid
apprehension. Moreover, the fact that [Culver] had a fake
ID and provided a fake name to the officers who arrested
him and at the jail where he was being processed certainly
corroborated the Commonwealth’s contention that [Culver]
fled to Florida and allowed the prosecution to argue to the
jury that [Culver] fled this area and assumed a fake
identity because he was conscious of his guilty and was
trying to avoid apprehension.
PCRA Ct. Op., 9/21/16, at 6. We agree with the PCRA court’s analysis and
conclude that it did not err in dismissing the ineffectiveness claim.
Next, Culver asserts that trial counsel was ineffective for failing to
challenge Albert Goodman’s competency. According to Culver, Albert
Goodman’s age and severe illness prevented him from “express[ing]
intelligent answers to questions.” Culver’s Br. at 29. Culver relies on
inconsistencies in Goodman’s video-recorded testimony and argues that
while “[i]ndividually, these elements of Albert[ Goodman]’s testimony could
be viewed as minor inconsistencies[,] . . . [t]aken as a whole . . . Albert[
Goodman]’s pattern of porous memory reveals that it is much more likely
that his illness had taken such a toll on him that he was unable to maintain a
- 11 -
J-S54019-17
clear recollection of what he had seen and heard on the day of the
homicide.” Id. at 30. We disagree.
The competency of witnesses is governed by Pennsylvania Rule of
Evidence 601, which provides:
(a) General Rule. Every person is competent to be a
witness except as otherwise provided by statute or in
these rules.
(b) Disqualification for Specific Defects. A person is
incompetent to testify if the court finds that because
of a mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable
of perceiving accurately;
(2) is unable to express himself or herself so as
to be understood either directly or through an
interpreter;
(3) has an impaired memory, or
(4) does not sufficiently understand the duty to
tell the truth.
Pa.R.Evid. 601. This Court has explained that Rule 601
[i]s expressly intended to preserve existing Pennsylvania
law. In general, the testimony of any person, regardless
of [his] mental condition, is competent evidence, unless it
contributes nothing at all because the [witness] is wholly
untrustworthy. Thus, in Pennsylvania, [a witness is]
presumed competent to testify, and it is incumbent upon
the party challenging the testimony to establish
incompetence. Above all, give the general presumption of
competency of all witnesses, a court ought not to order a
competency investigation, unless the court has actually
observed the witness testify and still has doubts about the
witness’ competency.
The capacity to remember and the ability to testify
truthfully about the matter remembered are components
of testimonial competency. The party alleging a witness is
- 12 -
J-S54019-17
incompetent to testify must prove that contention by clear
and convincing evidence.
Commonwealth v. Boich, 982 A.2d 102, 109-10 (Pa.Super. 2009) (en
banc) (internal quotations and citations omitted; some alterations in
original).
The PCRA court concluded that this claim was meritless:
Though counsel did not seek to exclude the testimony of
Mr. Goodman on the basis that the witness was not
competent, [counsel] thoroughly challenged his credibility
on the same basis upon which [Culver] now contends that
[Goodman] was not a competent witness. This Court
made the following findings with regard to the challenge to
Mr. Goodman’s credibility:
This Court and the jury viewed a video tape of that
testimony. Though it was apparent from the video
that Mr. Goodman was ill, he did not seem to have
difficulty recalling the events surrounding the death
of his son and relating them. He seemed tired and
responded slowly to some questions, but it is simply
inaccurate to claim that his illness affected his
perception or that his testimony was confused,
vague, and contradictory, as [Culver] does in his
[Rule 1925(b)] statement. It was clear to this Court
that [Goodman’s] illness or taking of medications did
not affect his ability to recall events or accurately
describe what he observed. There were some things
about which Mr. Goodman was less than certain,
things that he acknowledged that he could not
remember. He was, however, clear about the
essential facts of the night that his son was shot. He
was cross examined by the defense as to his inability
to recall events; as to apparent inconsistencies
between what he told the police the night of the
incident and what he testified to in Court; and as to
the effect his illness and medication had on his
current state of mind. What effect, if any, to give
the questions raised by that cross examination as to
the accuracy of Mr. Goodman’s testimony, was
something for the jury to decide. Clearly, Mr.
- 13 -
J-S54019-17
Goodman was a competent witness and the jury was
allowed to believe as much of his testimony as they
wished.
(Slip Opinion 730th, 2014). Trial counsel was not
ineffective for seeking to challenge this witness[’]s
competence because, as the Court pointed out, this
witness was both competent and credible in his
testimony.
PCRA Ct. Op., 9/21/16, at 7-8. We agree with the PCRA court’s conclusion.
Next, Culver argues that trial counsel was ineffective because she did
not impeach Albert Goodman’s testimony. Although Culver raised this issue
in a response to the trial court’s dismissal of his petition, he neither included
it in his PCRA petition and nor obtained permission from the PCRA court to
supplement or amend his petition. Accordingly, we conclude that Culver has
waived this claim on appeal. See Commonwealth v. Mason, 130 A.3d
601, 640 (Pa. 2015) (concluding that petitioner who first asserted claim in
response to Commonwealth’s motion to dismiss waived claim for failure to
obtain leave of court to supplement or amend petition).
Finally, Culver argues that his PCRA counsel was ineffective because,
among other things, PCRA counsel failed to provide Culver with trial
transcripts. It is well settled that “claims of PCRA counsel ineffectiveness
cannot be raised for the first time after a notice of appeal has been taken
from the underlying PCRA matter.” Commonwealth v. Ford, 44 A.3d
1190, 1201 (Pa.Super. 2012). Because Culver raises ineffectiveness of
PCRA counsel claims for the first time on appeal from the dismissal of his
PCRA petition, this Court lacks jurisdiction to consider those claims.
- 14 -
J-S54019-17
Culver also asserts that the PCRA court’s denial of his multiple
requests for transcripts violated his due process rights under the United
States and Pennsylvania Constitutions. Culver claims he is entitled to a copy
of the transcripts under federal and Pennsylvania law. According to Culver,
“there may be very significant PCRA issues that would become clear if [he]
had the chance to review the record[, and he] . . . would also be in a better
position to explain why the issues he’s already raised are of arguable merit if
he had the opportunity to read his transcripts.” Culver’s Br. at 16. We
disagree.
While we recognize that “a defendant’s right to meaningful appeal
requires he be provided with a copy of a transcript or other equivalent
picture of the proceedings below,” Commonwealth v. Morgan, 364 A.2d
891, 892 (Pa. 1976), we conclude that, under these circumstances, Culver’s
right to a meaningful appeal has not been violated.
First, when Culver initially requested transcripts on April 28, 2015, he
had no matter pending before the courts. Thus, even with in forma pauperis
status, he was not entitled to transcripts. See Commonwealth v. Martin,
705 A.2d 1337, 1338 (Pa.Super. 1998).
Next, with respect to his December 21, 2016 request, we recognize
that, had Culver followed the correct procedure, he should have received his
trial transcripts. However, it is evident that Culver’s lack of access to those
transcripts did not prevent him from receiving a meaningful appeal, as we
were not hindered in determining that Culver’s issues lack merit because we
- 15 -
J-S54019-17
received the trial transcripts from the Allegheny County Clerk of Courts.
Further, we find Culver’s claims specious, as Culver quoted a section of
Albert Goodman’s video-recorded testimony in his appellate brief. See
Culver’s Br. at 34. Accordingly, Culver is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2017
- 16 -