Com. v. Riera, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROGER MITCHELL RIERA :
:
Appellant : No. 1962 MDA 2018
Appeal from the PCRA Order Entered November 6, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001459-2011
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 21, 2019
Roger Mitchell Riera (“Appellant”) appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541–9546. We affirm.
[Appellant] was charged with Murder of the Third Degree[,
a felony] of the first degree; Voluntary Manslaughter, a felony of
the first degree; Involuntary Manslaughter, a misdemeanor of the
first degree; Aggravated Assault, a felony [of the second] degree,
Aggravated Assault, a felony of the second degree; and Recklessly
Endangering Another Person, a misdemeanor of the second
degree. The charges were the result of the shooting death of
Andrew Gula . . . on September 18, 2011.
Commonwealth v. Riera, 106 A.3d 175, 556 MDA 2013, at *6 (Pa. Super.
filed August 25, 2014) (unpublished memorandum) (quoting Trial Court
Opinion and Order, 4/2/13, at 1–2) (footnotes omitted). A jury convicted
Appellant of third-degree murder, voluntary manslaughter, and aggravated
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* Retired Senior Judge assigned to the Superior Court.
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assault.1 The trial court sentenced Appellant to incarceration for an aggregate
term of fifteen to thirty years followed by five years of probation. Appellant
filed post-sentence motions, which the trial court denied. Appellant filed an
appeal. We affirmed the judgment of sentence, and the Pennsylvania
Supreme Court denied Appellant’s petition for allowance of appeal. Id. at *2,
appeal denied, 113 A.3d 279 (Pa. 2015).
Appellant filed a pro se PCRA petition on March 7, 2016. The PCRA court
appointed counsel, who filed an amended petition on June 30, 2016. The
PCRA court conducted a hearing on July 20, 2018, at which Appellant and trial
counsel testified. By order dated October 20, 2018, the PCRA court sent notice
of its intent to dismiss Appellant’s petition. Appellant filed objections to the
notice on October 29, 2018, and the PCRA court dismissed the petition on
November 5, 2018. This appeal followed. Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents a single question for our consideration:
Whether the record supports the conclusion of the PCRA court that
trial counsel was not ineffective and that Appellant was not
prejudiced by trial counsel’s failure to ask questions on direct
examination about his physical condition on the night of the
incident when he was presenting an imperfect self-defense
argument.
Appellant’s Brief at 4 (full capitalization omitted).2
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1 18 Pa.C.S. §§ 2502(c), 2503(b) and 2702(a)(1), respectively.
2 The Commonwealth did not file a responsive brief.
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Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA court’s
determination is free of legal error. Commonwealth v. Staton, 184 A.3d
949 (Pa. 2018). We consider the record in the light most favorable to the
prevailing party in the PCRA court. Commonwealth v. Mason, 130 A.3d
601, 617 (Pa. 2015). We grant great deference to the PCRA court’s findings
that are supported in the record and will not disturb them unless they have
no support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
Appellant’s issue challenges the effective assistance of trial counsel. Our
Supreme Court has long stated that in order to succeed on a claim of
ineffective assistance of counsel, an 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. Pierce, 786 A.2d 203, 213 (Pa.
2001).
We have explained that counsel cannot be deemed ineffective for failing
to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc). Moreover, with regard to the second prong, we
have reiterated that trial counsel’s approach must be “so unreasonable that
no competent lawyer would have chosen it.” Commonwealth v. Ervin, 766
A.2d 859, 862-863 (Pa. Super. 2000) (quoting Commonwealth v. Miller,
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431 A.2d 233 (Pa. 1981)). Our Supreme Court has discussed
“reasonableness” as follows:
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial counsel’s
decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting
Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.
1967)) (emphasis in original).
In addition, we are mindful that prejudice requires proof that there is a
reasonable probability that, but for counsel’s error, the outcome of the
proceeding would have been different. Pierce, 786 A.2d at 213. “A failure
to satisfy any prong of the ineffectiveness test requires rejection of the claim
of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009) (citation omitted). Thus, when it is clear that a petitioner has failed to
meet the prejudice prong of an ineffective-assistance-of-counsel claim, the
claim may be disposed of on that basis alone, without a determination of
whether the first two prongs have been met. Commonwealth v. Baker, 880
A.2d 654, 656 (Pa. Super. 2005).
It is presumed that the petitioner’s counsel was effective, unless the
petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,
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1177 (Pa. 1999). Moreover, we are bound by the PCRA court’s credibility
determinations where there is support for them in the record.
Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citation
omitted).
Appellant was charged with, inter alia, third-degree murder. In order
to establish guilt of third-degree murder, the Commonwealth must prove a
defendant acted with malice. Commonwealth v. Fisher, 80 A.3d 1186, 1191
(Pa. 2013). Unlike the specific intent required for committing first-degree
murder, “[m]alice consists of a wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences, and a mind regardless of social duty.”
Commonwealth v. Kendricks, 30 A.3d 499, 509 (Pa. Super. 2011) (quoting
Commonwealth v. Kellam, 719 A.2d 792, 797 (Pa. Super. 1998)). Malice
may be inferred from the totality of the circumstances, or from the defendant’s
use of a deadly weapon on a vital part of a victim’s body. Commonwealth
v. Truong, 36 A.3d 592, 598 (Pa. Super. 2012) (en banc).
Appellant attempted to defeat the charge of third degree murder by
asserting imperfect self-defense, also known as unreasonable belief voluntary
manslaughter. 18 Pa.C.S. § 2503(b).3 The element of malice is rebutted
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3 The section provides: “A person who intentionally or knowingly kills an
individual commits voluntary manslaughter if at the time of the killing he
believes the circumstances to be such that, if they existed, would justify the
killing under Chapter 5 of this title (relating to general principles of
justification), but his belief is unreasonable.” 18 Pa.C.S. § 2503(b).
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when the evidence shows that a defendant acted in either self-defense or
“imperfect” self-defense—that is, he used deadly force with the belief,
however unreasonable, that it was immediately necessary to protect himself
against death or serious bodily injury. 18 Pa.C.S. § 505(a);4 Commonwealth
v. Hart, 565 A.2d 1212, 1217 (Pa. Super. 1989). A successful claim of self-
defense results in acquittal, and a successful claim of imperfect self-defense
reduces murder to voluntary manslaughter. 18 Pa.C.S. § 2503(b);
Commonwealth v. Rivera, 108 A.3d 779, 787 n.2 (Pa. 2014). Imperfect
self-defense requires all of the other principles of justification be met with
proof that “an unreasonable rather than a reasonable belief that deadly force
was required to save the actor’s life.” Commonwealth v. Tilley, 595 A.2d
575, 582 (Pa. 1991), 18 Pa.C.S. § 505(a). The Commonwealth has the burden
to set forth sufficient evidence to rebut a defendant’s self-defense claim.
Commonwealth v. McClendon, 874 A.2d 1223, 1229–1230 (Pa. Super.
2005). However, the defense fails if the defendant provoked the use of force
against himself in the same encounter or failed to retreat when he knew he
could do so. 18 Pa.C.S. § 505(b)(2); Truong, 36 A.3d at 599.
According to Appellant, trial counsel was ineffective because she did not
question Appellant about his medical issues at the time of the murder, which
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4 “The use of force upon or toward another person is justifiable when the
actor believes that such force is immediately necessary for the purpose of
protecting himself against the use of unlawful force by such other person on
the present occasion.” 18 Pa.C.S. § 505(a).
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would have supported his claim of imperfect self-defense. Appellant’s Brief at
12. Specifically, Appellant asserts that trial counsel should have questioned
him about suffering from “diminish[ed] physical capabilities on the night of
the incident to a degree that he felt he could only defend himself from a
physical attack by use of his firearm.” Id. at 16. According to Appellant:
[t]he trial court made a ruling prior to [Appellant] testifying that
he could not testify about what a doctor told him but he could
testify about how he felt that night. The trial court ruled that this
testimony was relevant to the defense that [Appellant] was
presenting.
Id. Appellant complains that trial counsel “never elicited these facts, never
asked [Appellant] the questions to support his defense and never raised this
issue before the jury.” Id. Furthermore, Appellant argues, counsel lacked a
reasonable basis for failing to question Appellant; she simply forgot. Id. at
18. Appellant concludes that but for trial counsel’s omission, the outcome of
the trial would have been different because “the jury’s decision could have
turned on the presentation of the complete defense. . . .” Id. at 19.
The PCRA court disposed of Appellant’s claim with the following analysis:
Trial counsel testified that she believed that for as many
times as she spoke with [Appellant] about his case, he did not tell
her about his condition until during trial. He did not provide her
with any additional information other than what he claimed he was
told by a doctor. She was not given a name of a doctor so that
counsel could investigate the claim . . . .
On the issue of whether trial counsel should have asked
[Appellant] about “how he felt” that night, the [c]ourt also finds
no arguable merit to the claim. During the trial, a conference was
held in the presence of [Appellant] on the issue of his testimony
about how he felt the evening of the incident. See N.T. 8/15/2012
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at pp. 55–59. The Commonwealth objected to [Appellant] being
allowed to testify as to what a doctor may have told him about a
medical condition he may have had, but that he could testify as
to his physical condition the night of the murder. Id. at p. 56.
Trial [c]ounsel when asked during the PCRA hearing why she did
not ask [Appellant] directly about his medical condition she
candidly testified that she had forgotten about it. However, in
reviewing his testimony during the trial, the [c]ourt found that
there were many times where [Appellant] could have testified as
to how he was feeling and at one point when asked if he was
“terrified,” could have elaborated on the specific reasons why,
which could have included testimony about his medical condition.
N.T. 8/15/2018 at p. 81. The [c]ourt finds that considering the
circumstances of this case, and the fact that after testifying, the
jury did not believe [Appellant] and the reasons that he used to
justify his use of a firearm, trial counsel’s failure to ask [Appellant]
specific questions on this issue does not rise to the level of
ineffective assistance. It is clear that given the “circumstances of
the particular case” her failure to inquire did not “undermine the
truth-determining process that no reliable adjudication of guilt or
innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
The jury chose not to believe [Appellant’s] testimony. There is no
indication from the evidence presented to this [c]ourt that they
would have found differently and so [Appellant’s] burden has not
been met.
PCRA Court Opinion, 10/10/18, at 6–7.
Upon review, we find support in the record for the PCRA court’s findings.
Staton, 184 A.3d 949. Furthermore, considering the record in the light most
favorable to the Commonwealth and granting great deference to the PCRA
court’s findings, we discern no error. Mason, 130 A.3d at 617; Rigg, 84 A.3d
at 1084. Trial counsel forgot to question Appellant directly about his physical
condition on the night of the shooting. See N.T., 7/20/18, at 49 (“I may have
just forgotten because I wanted him off the stand.”). Nonetheless, our review
of the certified record confirms that Appellant has failed to meet his burden of
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proving counsel’s ineffectiveness with evidence of a physical condition on the
night of the murder that precluded his retreat. Thus, we affirm the trial court,
albeit on a different basis. Accord Commonwealth v. Moser, 999 A.2d 602,
606 n.5 (Pa. Super. 2010) (stating that this Court may affirm a decision of the
trial court if there is any basis on the record to support the trial court’s ruling,
even if we rely on a different basis).
Four eyewitnesses testified that Andrew Gula (“the victim”) was
intoxicated when the altercation with Appellant began outside of the
Rumrunner’s bar. See N.T. (Brian Savage), 8/13/12, at 90 (“[H]e was sort
of struggling against me so he wasn’t tanked but I’m sure he had a few.”);
N.T. (Jade Yeagle), 8/13/12, at 169 (“[H]e was intoxicated and seem a little
unstable.”); N.T. (Adam Phillips), 8/14/12, at 17 (“He was so intoxicated he
would have fallen over a curb.”); N.T. (Alexander Thomas), 8/14/12, at 52 (“I
could see he was pretty drunk because his yelling was really slurred.”). One
eyewitness testified that when the victim ran after Appellant, the victim was
stumbling and “his recovery wasn’t typical of someone that was sober.” N.T.
(Alexander Thomas), 8/14/12, at 56, 58, 73. On the other hand, Appellant
“was not a drinker,” and he did not appear to be intoxicated that night. N.T.,
8/13/12, at 38–39; N.T., 8/14/12, at 25; N.T., 8/15/12, at 62, 77.
According to Appellant, the victim repeatedly screamed, “I’m going to
kill you,” during the altercation. N.T., 8/15/12, at 68–69, 71. Appellant also
testified that the victim was “screaming I’m going to kill you” while Appellant
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walked away and while the victim was running after Appellant; Appellant was
screaming back, “No. Stop.” Id. at 71, 78, 80, 103–104. However, several
eyewitnesses did not hear the victim screaming to Appellant, “I’m going to kill
you!” during the verbal altercation or when the victim ran after Appellant;5
nor did they hear Appellant screaming, “No! Stop!” to the victim before firing
his gun. N.T., 8/13/12, at 90, 94, 106–107, 112-113, 131, 141, 151; 171,
174, 176; N.T., 8/14/12, at 37, 48–49, 53, 57–58. Appellant also claimed
that the victim reached for something around his right hip while approaching
Appellant, but Appellant could not see what it was; he believed it was a
weapon. Id. at 71, 73–74, 125. Yet, eyewitness testimony revealed that the
victim did not reach for anything and was unarmed. N.T., 8/13/12, at 64,
121, 124, 130–131, 141, 150–151; N.T., 8/14/12, at 18, 43–44, 49, 58, 86–
91, 102–104; N.T., 8/15/12, at 10–12, 14.
Most notably, while Brian Savage restrained the victim, Appellant jogged
away from the altercation and joined his friends. N.T., 8/15/12, at 71.
Although he was “more than halfway to the car” when he heard people
screaming, “Let him go,” he slowed down once he reached his friends and
continued walking into Community Park. Id. at 98–100, 120. Upon hearing
the victim’s approaching footsteps, Appellant turned around to face the victim
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5 Only Appellant’s friends, Jade Yeagle and Adam Phillips, who were in front
of Appellant, testified that they heard the victim screaming, “I’m going to kill
you.” N.T., 8/13/12, at 175; N.T., 8/14/12, at 20, 24, 27.
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and shot him in the chest. N.T., 8/13/12, at 141; N.T., 8/15/12, at 30. After
doing so, Appellant walked away from the victim, called the police, and waited
by the car for their arrival. N.T., 8/13/12, at 177; N.T., 8/14/12, at 18; N.T.,
8/15/12, at 71–72.
During his direct testimony, Appellant did not mention any physical
condition that prevented him from retreating to his car, even when trial
counsel asked him why he felt he had to shoot the victim. N.T., 8/15/12, at
81–82. When the prosecutor asked Appellant why he did not “run to the
vehicle when [he was] already halfway there and [the victim] was all the way
down the street,” Appellant replied: “I figured he was still being restrained
and that if he was let go I was hoping that he wasn’t going to actually come
after me or somebody else was going to get him.” N.T., 8/15/12, at 121.
Similarly, at the PCRA hearing Appellant presented no evidence as to what
physical condition prevented him from retreating. N.T., 7/20/18, at 6–26.
The evidence established that Appellant was not acting in self-defense
because he failed to retreat when he could have done so without danger of
bodily injury. 18 Pa.C.S. § 505(b)(2); Truong, 36 A.3d at 599. Appellant
has not proffered any evidence of a physical condition that prevented him
from retreating and that trial counsel failed to elicit at trial. Thus, we conclude
the PCRA court properly rejected Appellant’s claim that trial counsel was
ineffective.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/21/2019
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