Com. v. Baynes, P.

J-S49036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PETER BAYNES
Appellant No. 1908 WDA 2016
Appeal from the PCRA Order November 22, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006305-2011
BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 14, 2017
Appellant, Peter Baynes, appeals from the order entered in the
Allegheny County Court of Common Pleas denying his first petition filed
pursuant to the Post Conviction Relief Act1 (“PCRA”). Appellant contends
trial counsel was ineffective for failing to call a defense witness at trial. We
affirm.
This Court previously summarized the relevant facts and procedural
history of this case as follows:
Anna Gomez and [Appellant] dated for
approximately four years and resided together in the
first floor apartment at 317 Natchez Street in the
Mount Washington area of the City of Pittsburgh,
Allegheny County. In the late evening hours of
Friday, April 22, 2011, [Appellant] approached
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S §§ 9541-9546.
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Gomez and accused her of having affairs with their
landlord, his best friend, and several other men.
When Gomez denied these allegations [Appellant]
grabbed her, threw her onto the bed, and ripped off
her clothes. [Appellant] climbed on top of her as he
said, “We’re going to get to the bottom of this.”
[Appellant] restrained Gomez by kneeling on her
shoulders, and punched her repeatedly in the face.
Gomez pleaded for [Appellant] to stop.
[Appellant] ran into another room to retrieve an
aluminum baseball bat (“bat”). Upon returning he
stood over her on the bed, holding the bat extended
above his head with both arms. [Appellant] said,
“Now you are going to tell me the truth. Don’t
move. We are going to get to the bottom of this.”
When he started to ask her questions about the
alleged affairs, she was able to get to the foot of the
bed and attempted to call 911. [Appellant] hit her
twice in the head with the bat: once on top of her
head and once across her face. This knocked her
onto the floor and caused blood to run from her
head.
With Gomez lying on the ground on her back,
[Appellant] stood over her with the bat and
demanded that she tell him the truth. Gomez rolled
over in an attempt to stand up and run away.
[Appellant] stopped her by hitting her with the bat
on her back, arms, elbow, and legs. Gomez tried to
stand up and lost consciousness. When Gomez
awoke she was on the bed and [Appellant] told her
to wash herself. She stood up and tried to walk, but
lost consciousness again. [Appellant] threw a glass
of cold liquid on her face to wake her up and said,
“Go ahead and get washed off, I am tired of you
playing.”
She made her way to the bathroom, losing
consciousness along the way. At some point
[Appellant] picked her up and “tossed” her into the
bathtub. The shower was running and [Appellant]
told her to clean herself. Gomez rinsed the blood off
her face as [Appellant] said, “Look what you made
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me do to you. Why don’t you just listen to me?”
Gomez stood up and lost consciousness again.
When she next awoke, [Appellant] was holding
her by the neck against the bathroom window. He
dropped her onto the floor and tried to kick her in
the face to make her stand up. She blocked his foot
with her hand and again lost consciousness. She
next awoke in bed with a towel wrapped around her
head. The apartment was quiet, it was dark outside,
and her cat was lying on her.
She awoke Sunday morning to [Appellant]
punching her and yelling at her. Desperate for the
attacks to stop, Gomez said, “Yes, I have had affairs
with everybody.” [Appellant] stopped hitting her and
instead asked details about the affairs. Gomez made
up stories to pacify [Appellant]. Later that day
[Appellant] pushed Gomez against the bedroom
window, which overlooked the front porch. She
broke off all of the blinds as she fell to the floor, and
at his direction she crawled towards the bed.
City of Pittsburgh police officers Troy Signorella,
Ryan Young, and Dale Ruble were dispatched to 317
Natchez Street late that Sunday afternoon on a
domestic violence call. The officers knocked on the
front and back door with no response. Officer Young
remained at the back door while [O]fficer Signorella
proceeded to the front porch, where he was able to
look in the window.
When [Appellant] saw [O]fficer Signorella looking
in the bedroom window he told Gomez, “I told you
that if the police ever got here I was going to kill
you.” [Appellant] ran between the bedroom and the
living room looking for the bat. Gomez remained on
the floor between the bed and the window, covered
in a sheet. She had blood on her face and arms,
there was blood on the wall, bed, and floor around
her. Officer Signorella radioed for a medic, signaled
to the officers Gomez’s condition and location, and
told [Appellant] to let them in.
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[Appellant] complied and opened the rear door for
[O]fficer Young. The apartment was ransacked and
bloody, with the heaviest concentration of blood in
the bedroom. Officer Young proceeded directly to
the bedroom to check on Gomez. Officer Signorella
remained next to [Appellant], who repeatedly yelled
at Gomez, “Tell me who did this to you.”
Officer Young updated the en route medics that
Gomez had several head injuries, extreme swelling
and bruising on her body, and difficulty breathing.
Gomez told [O]fficer Young that [Appellant] attacked
her. Officer Young indicated to [O]fficer Signorella
to arrest [Appellant], and [O]fficer Signorella
handcuffed [Appellant] to take him outside.
Officer Ruble noticed dried blood spots on
[Appellant’s] shirt and a swollen right hand, and
transported him to a different hospital than Gomez.
[Appellant] gratuitously remarked en route that his
hand was swollen from punching walls. [Appellant]
was released from the hospital that day and
transported to the Allegheny County Jail and charged
as noted hereinabove. En route he repeatedly told
[O]fficer Ruble that Gomez had been “seeing his best
friend.”
Medics transported Gomez to the hospital. She
had not eaten nor changed clothes since Friday
evening. Gomez had a pre-existing condition
(Parkinson’s disease) which complicated her
treatment and condition. Due to previously
implanted deep brain stimulators that interrupted
EKG testing, the hospital was unable to ascertain
what brain damage Gomez may have suffered as a
result of this attack. Gomez suffered multiple
ecchymosis throughout her body, two fractured
vertebrae, three fractured ribs, a pneumothorax,
facial bone contusions, acute renal failure, and four
forehead lacerations. She was treated with fluid
resuscitation and her lacerations were stapled. The
hospital released Gomez five days later on April 29,
2011, but she was readmitted on May 4, 2011, for
an infection in her right forehead wound, a right
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ankle abscess, right kneecap fracture, and post
traumatic stress disorder. The infection and abscess
were surgically treated. Gomez was released to an
assisted living home on May 12, 2011, where she
spent one month. At the time of trial Gomez had
scars and lumps on her forehead, nerve damage in
her eyes and face, required the use of a cane or
walker to ambulate, and it was apparent that the
injuries she endured were severe and enduring.
Trial court opinion, 4/4/13 at 4-8 (citations omitted).
Appellant testified at trial and claimed that he did not
commit the assaults against the victim. He averred that
the beating occurred during a two-hour period of time
when he left the apartment to give the victim time to
decide whether she wanted to stay with [A]ppellant or
leave to have an affair with his best friend. Appellant
testified that he sat on Grandview Avenue in Mt.
Washington for about two hours looking at the City of
Pittsburgh and when he returned home, he found the
house ransacked and bloody, and the victim terribly
beaten. He testified that the victim said that “they” beat
her and stole some money. Appellant insisted that the
victim would not identify her attackers as they were a
“motorcycle gang.” He also claimed that the victim would
not let him call an ambulance.
Following a jury trial before the Honorable Edward J.
Borkowski, [A]ppellant was found guilty of [aggravated
assault―serious bodily injury, terroristic threats, unlawful
restraint, and false imprisonment]. On July 12, 2012,
Judge Borkowski sentenced [A]ppellant to an aggregate
term of 13 to 26 years’ imprisonment. A timely notice of
appeal was filed on December 27, 2012.
Commonwealth v. Baynes, 2023 WDA 2012 at 1-5 (Pa. Super. filed Mar.
11, 2014) (unpublished memorandum). This Court affirmed Appellant’s
judgment of sentence, and our Supreme Court denied allowance of appeal.
See Commonwealth v. Baynes, 179 WAL 2014 (Pa. filed Oct. 2, 2014).
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On January 7, 2015, Appellant timely filed a pro se PCRA petition. The
PCRA court appointed counsel who subsequently filed an amended petition,
claiming that trial counsel was ineffective for failing to investigate or call
Robert Spencer as a defense witness at trial. The Commonwealth filed an
answer in response. Thereafter, Appellant filed a motion to appoint an
investigator to locate, interview, and serve a subpoena on Spencer. The
PCRA court denied the motion and issued notice of its intent to dismiss
Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. On
November 22, 2016, the PCRA court denied Appellant’s petition. Appellant
timely appealed.
Appellant raises the following issue for our review:
Whether the trial court erred in denying Appellant’s [PCRA]
Petition without a hearing because trial counsel provided
ineffective assistance of counsel for failing to investigate or
call Robert Spencer as a defense witness at trial.
Appellant’s Brief at 4.
Appellant argues trial counsel was ineffective for failing to investigate
or call defense witness Spencer at trial. Appellant claims trial counsel knew
of Spencer’s identity, that he was on the list of potential witnesses, that he
was subpoenaed for trial, and that he was present in the courtroom at the
beginning of Appellant’s trial. Appellant states the victim, Ms. Gomez,
testified that Spencer was at the apartment on the Saturday of the incident
and threatened her. Appellant contends trial counsel knew Spencer would
testify on Appellant’s behalf and would have been able to refute that
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Spencer was ever at the apartment threatening the victim. Appellant
asserts trial counsel had no reasonable basis for her inaction, and the
absence of Spencer’s testimony prejudiced Appellant and denied him a fair
trial. Appellant maintains his PCRA petition presented a material issue
regarding trial counsel’s ineffectiveness and, therefore, the PCRA court
should have held an evidentiary hearing. Appellant concludes his judgment
of sentence should be vacated and the case should be remanded for a new
trial, or, alternatively, the case should be remanded for an evidentiary
hearing. No relief is due.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011). This
Court grants great deference to the findings of the PCRA court if the record
contains any support for those findings. Commonwealth v. Boyd, 923
A.2d 513, 515 (Pa. Super. 2007). We give no such deference, however, to
the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194
(Pa. Super. 2012).
Nevertheless, “a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision dismissing a
petition without a hearing for an abuse of discretion.” Commonwealth v.
Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). Further,
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when the PCRA court denies relief without an evidentiary hearing, this Court
must examine each of the issues raised in light of the record to determine
whether the PCRA court erred in concluding there were no genuine issues of
material fact. Id. (citation omitted).
[C]ounsel is presumed to have provided effective
representation unless the PCRA petitioner pleads and
proves that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable basis for his or her conduct;
and (3) [a]ppellant was prejudiced by counsel’s action or
omission. To demonstrate prejudice, an appellant must
prove that a reasonable probability of acquittal existed but
for the action or omission of trial counsel. A claim of
ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA
petitioner must exhibit a concerted effort to develop his
ineffectiveness claim and may not rely on boilerplate
allegations of ineffectiveness.
Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008) (quotation
marks and citations omitted). Furthermore,
In order to prevail on a claim of ineffectiveness for failing
to call a witness, a defendant must prove, in addition to
meeting the three [ineffectiveness] requirements, that: (1)
the 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 witness’s testimony was so prejudicial as to have
denied him a fair trial.
Commonwealth v. Walls, 993 A.2d 289, 302 (Pa. Super. 2010) (citation
omitted).
Additionally,
Where a petitioner requests an evidentiary hearing, the
petition shall include a signed certification as to each
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intended witness stating the witness’s name, address, date
of birth and substance of testimony and shall include any
documents material to that witness’s testimony. Failure to
substantially comply with the requirements of this
paragraph shall render the proposed witness’s testimony
inadmissible.
42 Pa.C.S. § 9545(d)(1).
Instantly, neither Appellant’s pro se nor counseled petitions included a
signed, witness certification for Robert Spencer to comply with the
requirements of 42 Pa.C.S. § 9545(d)(1).2 Thus, Appellant failed to plead
that Spencer was willing to testify for the defense or the substance of his
testimony. See 42 Pa.C.S. § 9545(d)(1); Walls, 993 A.2d at 302.
Therefore, any proposed testimony from Spencer would have been
inadmissible. See 42 Pa.C.S. § 9545(d)(1).
In any event, Appellant appears to suggest that Spencer would have
been able to impeach the credibility of Ms. Gomez’s account of the attack, in
particular, her testimony that she heard Spencer threatening her during the
time Appellant attacked her. Appellant’s Brief at 28-29. According to
Appellant, Spencer could have contradicted Ms. Gomez’s testimony by
stating he (Spencer) was not present at the time of the attack and did not
threaten Ms. Gomez. Id. Although Ms. Gomez testified that she heard
Spencer threaten her while Appellant was attacking her on Saturday, the
second day of the attack, N.T. Trial, 4/16/12-4/17/12, at 73, we discern no
2
We note that Appellant’s brief does not challenge the PCRA court’s decision
not to appoint an investigator to locate Robert Spencer.
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basis to conclude that rebuttal of this minor point would have materially
affected the credibility of Ms. Gomez or the fairness of the trial. Ms. Gomez
consistently testified that Appellant attacked her over a three-day period,
from Friday to Sunday. Id. at 35-52. Officer Young also testified that upon
responding to the residence Ms. Gomez told him that Appellant had
assaulted her. Id. at 101. Lastly, Spencer’s purported testimony would not
have advanced Appellant’s defense that another individual or group of
individuals attacked Ms. Gomez while Appellant was away from the residence
for two hours on Sunday. Thus, Appellant has failed to demonstrate that the
absence of this testimony was exculpatory or that the absence of the
evidence deprived him of a fair trial. See Walls, 993 A.2d at 302.
Accordingly, we affirm the PCRA court’s decision denying Appellant’s
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2017
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