Com. v. Pander, A.

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2014 Pa. Super. 201
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY D. PANDER,
Appellant No. 3478 EDA 2012
Appeal from the PCRA Order December 17, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009831-2008
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,
OTT, WECHT, STABILE, and JENKINS, JJ.
OPINION BY BOWES, J.: FILED SEPTEMBER 17, 2014
Anthony Pander appeals from the order entered December 17, 2012,
in which the court denied his first counseled petition for post-conviction relief
filed pursuant to the Post-Conviction Relief A -
9546. We affirm.
brother-in-law. Appellant, his sister Georgianna Pander,1
boyfriend, Brian Dingler, were celebrating New Year 2008 at Dingl
residence. Georgianna Pander informed Appellant that she was upset with
the victim, causing Appellant to become extremely angry. As a result,
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1
Georgianna Pander was married to the victim, but they were separated.
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2
Dingler followed Appellant at the behest of his girlfriend and entered the
front passenger seat of the vehicle in an attempt to calm Appellant down.
However, Appellant proceeded to drive his car, with Dingler as his
n
Gabrinidis attempted to flee, running down the street screaming for help and
ellant, however, continued his attack,
knocking down Mr. Gabrinidis and assaulting him as he lay in the street.
Several neighbors of the victim, who were familiar with Appellant,
witnessed the attack. Kimberly Bumpess heard screams from outside her
window and observed Mr. Gabrinidis fleeing from his home. According to
witnessed the attack. Both Ms. Bumpess and her son saw the assailant
Police later showed Mr. Bumpess a family photograph depicting Appellant,
but he failed to identify Appellant as the person he saw assaulting the
victim. Mr. Bumpess, nonetheless, subsequently identified Appellant at trial.
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2
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A third neighbor, who could not conclusively identify Appellant, witnessed
the attack and told police that the assailant entered the driver side door of a
vehicle before fleeing.
Upon re-entering his car, Appellant informed Dingler that Mr.
Dingler observed Appellant scrubbing his pants and hands in a bathroom.
Police arrived on the scene of the attack and found Mr. Gabrinidis bleeding
from his chest. Mr. Gabrinidis died as a result of multiple stab wounds. One
stab wound punctured his heart and another his liver. According to the
medical examiner, either injury could have caused his death.
A jury found Appellant guilty of first-degree murder and possession of
the court sentenced Appellant to life imprisonment without parole for the
murder charge and a concurrent term of imprisonment of two and one-half
to five years for the PIC count. Appellant did not file a post-sentence
motion, but he did file a pro se notice of appeal. The court appointed
counsel, and this Court affirmed. Commonwealth v. Pander, 24 A.3d 454
(Pa.Super. 2011) (unpublished memorandum). Appellant did not seek a
petition for allowance of appeal.
However, Appellant timely filed the underlying pro se PCRA petition in
this matter, which was docketed on May 23, 2011. Thereafter, he submitted
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an amended pro se petition on July 13, 2011. The PCRA court appointed
counsel. Counsel filed an amended petition on January 20, 2012. The
Commonwealth filed a response on August 7, 2012, seeking dismissal.
Appellant responded to that motion on August 13, 2012. The PCRA court
issued a notice of dismissal pursuant to Pa.R.Crim.P. 907 on November 19,
2012. Appellant did not file a response to that notice, and the PCRA court
entered its final order on December 17, 2012. This timely appeal ensued.
The PCRA court directed Appellant to file and serve a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied, and the court authored its opinion in support of its
order. A divided panel of this Court, with this author dissenting, affirmed in
part and reversed in part, and remanded for additional proceedings. Both
parties sought en banc
request. The matter is now ready for our consideration.
Appellant presents the following issues for our review.
I. Is the appellant entitled to post-conviction relief since he
was rendered ineffective assistance of trial counsel and
appellate counsel?
A. Is the appellant entitled to post-conviction relief as a
result of the ineffectiveness of appellate counsel for
failing to raise in the direct appeal the issue of the trial
alternate juror?
B. Is the appellant entitled to post-conviction relief as a
result of the ineffectiveness of appellate counsel for
failing to raise in the direct appeal the issue of the trial
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following a question by the prosecutor suggesting to the
jury that the appellant had a burden to produce
evidence?
C. Is the appellant entitled to post-conviction relief as a
result of the ineffectiveness of trial counsel for failing to
request the trial court for a Kloiber[3]instruction as to
Commonwealth witness Shakur Bumpess?
D. Is the appellant entitled to post-conviction relief as a
result of the ineffectiveness of trial counsel for failing to
present evidence and argument to prove that someone
other than the appellant committed the murder?
E. Is the appellant entitled to post-conviction relief as a
result of the ineffectiveness of trial counsel for failing to
interview and present the testimony of Philip DeLuca,
Eleftheria Gabranidias, [sic] Rosemarie Pander and
Charlene Pander as to the contentious relationship Brian
Dingler had with the victim and that Georgianna Pander
would instigate fights between the victim and Dingler?
F. Is the appellant entitled to post-conviction relief as a
result of the ineffectiveness of trial counsel for failing to
request the Commonwealth to test or make
arrangements for the testing of the blood found in the
-5.
Our review in PCRA matters is guided by the following principles. We
favorable to the prevailing party at the
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)
(en banc). This review is limited to the evidence of record and the factual
findings of the PCRA court. Id actual
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3
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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findings of the PCRA court and will not disturb those findings unless they
Id.
ruling is free of legal error and is supported by record evidence, we will not
disturb its ruling. Id. Nonetheless, where the issue pertains to a question
de novo and our scope of review is
Id.
comprehensively outlined the law regarding such claims in Commonwealth
v. Stewart, 84 A.3d 701 (Pa.Super. 2013) (en banc). Therein, we set
forth:
petitioner must establish: (1) that the underlying issue has
arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
Commonwealth v. Chmiel, 612
to plead or meet any elements of the above-cited test, his claim
Commonwealth v. Burkett, 5 A.3d 1260, 1272
(Pa.Super. 2010).
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See Commonwealth
v. Jones,
petitioner raises allegations, which, even if accepted as true, do
not establish the underlying claim ..., he or she will have failed
acts rise to the level of arguable merit is a legal
Commonwealth v. Saranchak, 581 Pa. 490,
866 A.2d 292, 304 n. 14 (2005).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
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success. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874
(2010). Counsel's decisions will be considered reasonable if they
effectuated his client's interests. Commonwealth v. Miller,
605 Pa. 1, 987 A.2d 638 (2009). We do not employ a hindsight
analysis in comparing trial counsel's actions with other efforts he
may have taken. Id. at 653.
re is a reasonable probability
that, but for counsel's errors, the result of the proceeding would
have been different. Commonwealth v. Steele, 599 Pa. 341,
probability sufficient to undermine confid
Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.
Burkett, supra at 1272; Strickland v. Washington,
466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Stewart, supra at 706-707.
appellate counsel was ineffective for
failing to raise on appeal a preserved challenge to the continuation of juror
number seven sitting on the jury after she became upset over viewing a
photograph of the deceased. Specifically, during the testimony of a medical
examiner, juror number seven required a break after observing pictures of
the victim. She informed the trial court that the photographs reminded her
of her own husband, who had died the prior year, and asserted that the
photographs were too graphic. The court inquired whether she could remain
impartial, and notwithstanding her emotional reaction, she twice indicated
that she could. The trial court directed that no additional photographs be
shown. Trial counsel asked that the court seat an alternate juror, but the
court denied that request. Appellate counsel, who was not trial counsel, did
not raise this issue on direct appeal.
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Relying on case law discussing juror challenges for cause, Appellant
contends that, since the juror became so upset over viewing the
photographs that she had to exit the courtroom, she should have been
reaction to the photographic evidence and because she was still mourning
the loss of her husband.
The Commonwealth responds that because the juror stated that she
could be fair and impartial, the trial court did not err. It maintains that
appellate counsel could not be ineffective for failing to present this issue on
direct appeal. The PCRA court set forth that the juror did not discuss the
photographs with the other jurors after she became upset, provided that she
could remain fair and impartial, and was questioned by trial counsel.
Accordingly, it reasoned that the juror was not unable or disqualified from
performing her duty, see Pa.R.Crim.P. 645, and appellate counsel could not
be ineffective for declining to pursue the issue.
Recently, in Commonwealth v. Hale, 85 A.3d 570 (Pa.Super. 2014)
allowance of appeal granted on other ground, __ A.3d __ (Pa. 2014) (filed
July 2, 2014), this Court analyzed cases discussing the law regarding the
dismissal of jurors for cause. Therein, we noted that Pennsylvania courts
have distinguished between situations where a juror is presumed biased and
cannot be rehabilitated by questioning from the court, and those jurors who
through questioning indicate that they can be fair and impartial. While Hale
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and the cases discussed therein involved juror challenges prior to trial, we
find the discussion therein apt in lig
should have been presumed prejudiced.
The Hale Court quoted Commonwealth v. Colon, 299 A.2d 326
(Pa.Super. 1972), which set forth that
challenges for cause should be granted: (1) when the potential
juror has such a close relationship, be it familial, financial or
situational, with parties, counsel, victims, or witnesses, that the
court will presume the likelihood of prejudice; and (2) when the
potential juror's likelihood of prejudice is exhibited by his
conduct and answers to questions at [v]oir dire.
Colon, supra at 327 (footnote omitted).
In the first situation, our standard of review has been labeled by this
Court as ordinary. Colon, supra at 327- In the former situation, the
determination is practically one of law and as such is subject to ordinary
but see Commonwealth v. Black, 376 A.2d 627 (Pa. 1977)
witness evaluated under abuse of discretion standard); Commonwealth v.
Briggs, 12 A.3d 291, 332-333
regarding whether to disqualify a juror for cause is within its sound
discretion and will not be reversed in the absence of a palpable abuse of
that what this Court has meant by indicating
that our standard of review is ordinary is that, as a matter of law, it is error
to allow a juror to sit and take part in final deliberations when he or she has
a close relationship to certain interested individuals involved in the case. It
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is nonetheless clear that where the relationship between the juror and a
party, counsel, victim, or witness is not a close relationship, we evaluate a
f
discretion standard. Colon, supra; see also Commonwealth v. Johnson,
445 A.2d 509, 512 (Pa.Super. 1982); Commonwealth v. Lesko, 15 A.3d
345, 413 (Pa. 2011).4
prejudice. Accordingly, we decline to view the juror as per se prejudiced.
Indeed, we do not view becoming upset over a photograph of a murder
victim as indicating prejudice. That the juror was disturbed by pictures of
the victim because it brought back memories of her recently deceased
husband does not alone indicate an inability to consider the evidence
impartially. Here, had appellate counsel raised the issue on direct appeal,
we would have reviewed the issue under our abuse of discretion standard.
that he or she could remain fair and the trial court has had the opportunity
to view the juror in question, we do not lightly reconsider its decision. Since
the juror repeatedly stated that she could remain fair and impartial and was
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4
The Court in Commonwealth v. Johnson, 445 A.2d 509 (Pa.Super.
1982), recognized that there may exist situations where the two categories
discussed in Commonwealth v. Colon, 299 A.2d 326 (Pa.Super. 1972),
intermingle. We are also cognizant that the abuse of discretion standard
encompasses errors of law.
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questioned by trial counsel and the court, appellate counsel was not
ineffective in not raising this issue on direct appeal.
Appel
that the trial court erred in denying a motion for a mistrial after the
prosecutor asked a detective if the defense could have tested evidence to
determine if it was blood. In this regard, police, pursuant to a warrant,
were taken. Police did not observe any blood in or on the vehicle, and
remarked that there was a small stain that appeared to be from ketchup or
sauce on the passenger seat. After police processed the vehicle, they
investigator took pictures of the car. One picture contained what appeared
to be blood on the inside passenger door. The investigator was deceased at
the time of trial.
During direct examination of Detective David Baker, the
Commonwealth asked about the respective stains. The following exchange
occurred.
Prosecutor: When you processed the car, did that stain appear
to be blood?
A: No, it did not.
Prosecutor: What about it made it not appear to be blood?
A: It looks like it could be sauce or ketchup. It had a slight
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Prosecutor: Is that consistent with what you see on the door
there or not?
Prosecutor: If you thought there was blood on the seat, what
would you have done?
A: For that portion, I would have cut the seat and submitted it.
Prosecutor: Just like you can submit things for test, is the
Defense entitled to that as well?
A: Yes.
Prosecutor: Did any attorney on behalf of [Appellant]
Trial Counsel: Objection.
Court: Sustained.
A. No.
Court: Sustained. Strike the answer.
N.T., 12/2/09, at 138-139.
Appellant did not move for a mistrial at this juncture. However, on
redirect, another exchange occurred regarding the purported blood from the
photograph [is] blood?
A: No, I cannot.
Prosecutor: Can it be determined what it is?
analyzed.
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any request that was made
by the Defense to do that?
Trial Counsel: Objection.
Court: Sustained.
N.T. 12/2/09, at 141.
Again, trial counsel did not immediately move for a mistrial.
Nonetheless, after the court took a break following the presentation of
several other witnesses, counsel requested a mistrial on the grounds that
the Commonwealth was attempting to shift the burden of proof.5 Appellate
counsel included this challenge in his Pa.R.A.P. 1925(b) concise statement,
but abandoned the issue before this Court.
Appellant now argues that this questioning infringed upon his right to
remain silent during trial, suggested that he had to test the blood evidence,
and improperly shifted the burden of proof. Discussing case law regarding
statutes that were held to have impermissibly shifted the burden of proof to
a defendant, see Commonwealth v. Butler, 760 A.2d 384 (Pa. 2000) and
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5
During closing statements, trial counsel objected to a remark by the
blood], the Defendant has no burden. I have all the burden to prove him
N.T., 12/3/09, at 53. The objection was sustained and trial counsel moved
for a mistrial. Appellant does not reference this exchange or challenge
appellate counsel with respect to this portion of the trial. The trial court did
indicate that the Commonwealth was improperly attempting to shift the
burden of proof,
comment.
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Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999), Appellant posits
that it is immaterial that the questions were not answered or that the jury
was given a general instruction on the burden of proof.
The Commonwealth counters first that the questioning was directed at
prosecutor was responding to evidence that the defendant had presented,
and not shifting the burden of proof. Furthermore, it notes that the objected
to questions were not answered or stricken and submits that Appellant has
Id. at 19. Citing a string of cases, the
Commonwealth contends that a mistrial is not warranted where a witness
does not answer a question. Id. (citing Commonwealth v. Bridges, 757
A.2d 859, 879 (Pa. 2000); Commonwealth v. Tilley, 595 A.2d 575, 580
(Pa. 1991); Commonwealth v. Shotwell, 717 A.2d 1039, 1044 (Pa.Super.
1998); Commonwealth v. Fielder, 612 A.2d 1028, 1036 (Pa.Super.
1992); Commonwealth v. Hoffman, 447 A.2d 983, 986 (Pa.super. 1982);
Commonwealth v. Waters, 417 A.2d 226, 228 (Pa.Super. 1979)).
Lastly, the Commonwealth posits that the jury was repeatedly
instructed that a defendant bears no burden of proof, was told that c
statements are not evidence, and that jurors are presumed to follow a
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there was nothing for the jury to consider.
It is well settled that the Commonwealth bears the burden of proving
each element of the crimes charged beyond a reasonable doubt. Further, a
defendant is not required to advance any evidence in support of his defense.
In addition, the Fifth Amendment provides in relevant part that no person
U.S. Const. amend. V. Similarly, but not identically, Article I, § 9 of the
Pennsylvania Constitution reads in pertin
the respective constitutions, to be a witness and to give evidence were
considered synonymous and both terms, under a plain meaning
interpretation, applied to more than trial testimony. See United States v.
Hubbell, 530 U.S. 27, 51 (2000) (Thomas, J., concurring). In fact, the right
prohibited compelling a person to produce incriminating physical evidence.
Id.; Boyle v. Smithman, 23 A. 397, 398 (Pa. 1892); but see Fisher v.
United States, 425 U.S. 391 (1976) (incriminating physical evidence may
be compelled).
Appellant has failed to meaningfully develop his claim regarding
implication of his constitutional right against self-incrimination. Thus, that
-shifting
position does not entitle him to relief. The grant of a mistrial is an extreme
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remedy. Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). The
trial court herein sustained cou
was not admitted. That the trial court did not give an instruction on the
little moment where the objections did not occur in a timely fashion and it
correctly instructed the jury during its final instructions regarding the
appropriate burden of proof.6 Since the trial court did not err in declining to
declare a mistrial, appellate counsel cannot be ineffective for not arguing
that issue on appeal.
Next, Appellant avers that trial counsel was ineffective in failing to
request a Kloiber
testimony A Kloiber instruction informs the jury that an eyewitness
identification should be viewed with caution when either the witness did not
have an opportunity to view the defendant clearly, equivocated on the
identification of the defendant, or has had difficulties identifying the
Commonwealth v. Sanders, 42 A.3d 325,
332 (Pa.Super. 2012).
In the instant case, Mr. Bumpess told police on the night of the
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6
Appellant does not allege that trial counsel was ineffective in failing to
request a mistrial immediately or seek a curative instruction following
reasons his actual claim falters.
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side of a car before fleeing looked like Appellant. However, when shown a
family picture that included Appellant, Mr. Bumpess identified a different
person. In contrast, at trial, Mr. Bumpess identified Appellant, and
depicted in the family photograph. Trial counsel did not request a Kloiber
instruction.
The trial court, nonetheless, provided the following instruction relative
to identification.
Now, throughout the trial you hear testimony on
identification. And in the testimony of Shakur Bumpess and
Kimberly Bumpess, they identified the person committing the
crimes. In evaluating the testimony[,] in addition to the other
witnesses[,] you should consider the additional following factors.
Did the witness have a good opportunity to observe the
perpetrator of the offense? Was there sufficient lighting for
them to make their observations? Were they close enough to
the individual to note their facial and other physical
characteristics as well as clothing at the time of the incident?
Have they made prior identification of the Defendant as a
perpetrator of these crimes at any of the proceedings? Was
their identification positive or was it qualified by any hedging or
inconsistencies? During the course of this case did the witness
identify anyone else as the perpetrator? And in considering
whether or not to accept the testimony of Shakur Bumpess and
Kimberly Bumpess, you should consider the circumstances under
which the identifications were made.
N.T., 12/3/09, at 62-63.
Appellant argues that because Mr. Bumpess misidentified another
person in the family photograph as the assailant, and his mother did not
know Appellant well, counsel was derelict in failing to secure an instruction
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aspect of his argument, Appellant relies on Commonwealth v. Simmons,
647 A.2d 568 (Pa.Super. 1994), and Commonwealth v. McKnight, 453
A.2d 1 (Pa.Super. 1982). In Simmons, the Commonwealth appealed the
grant of a new trial after the litigation of a post-trial motion alleging
ineffective assistance of trial counsel for not seeking a Kloiber instruction.
Over a dissent, the Simmons Court determined that counsel was
ineffective. The pertinent facts of Simmons were that, at a preliminary
hearing, a witness testified to seeing the defendant and another individual
flee from a shed door. In contrast, at trial that witness indicated that he had
been mistaken and he saw the defendant and another man exit a side door
of the property. An investigator for the defense testified that the witness
could not have observed someone leaving from the shed door from the area
where the witness asserted he was standing. The Simmons Court ruled
that Kloiber was implicated because there was a question as to whether the
witness could have observed the perpetrator from his position.
Similarly, in McKnight, this Court addressed an ineffectiveness claim
on direct appeal regarding an identification instruction. There, three men
robbed a bar. The only testimony implicating the defendant was from a
witness driving home from work. He testified that he saw three men exiting
the bar and remove their masks. The witness provided that he saw one man
with a shotgun, that it was broad daylight, and he saw the men from behind
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at approximately twenty feet. We reasoned that the record demonstrated
that the witness did not have an ideal opportunity to observe the defendant
McKnight, supra
at 2.
e Commonwealth
replies that Appellant would not have been entitled to a Kloiber instruction.
observe him during h
of the Commonwealth and PCRA court, Commonwealth v. Rozplochi, 561
A.2d 25 (Pa.Super. 1989), demonstrates that a Kloiber charge was not
misidentification. In Rozplochi, this Court discussed an ineffectiveness
lure to request a Kloiber instruction.
Therein, the defendant robbed two women at the same time. The women
observed the assailant for approximately ten minutes in a twelve-by-eight-
foot area that was well lit. Each woman separately selected the defendant
from an initial photographic array, but indicated that the robber looked
older. The initial array depicted the defendant ten years earlier.
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Police then separately provided the women with a second array on a
later date. This array contained a photograph of the defendant taken six
months before the robbery. The women did not identify the defendant, but
did not misidentify another person. A third array was shown separately to
the women several weeks later. Both witnesses immediately selected the
defendant. The women testified at trial that they were positive that the
defendant was the culprit. We ruled that the failure to select the defendant
in the second photographic array did not warrant a Kloiber charge where
both women chose the defendant out of two different arrays and had ample
opportunity to observe him up close.
We disagree that Rozplochi is controlling. The facts of that matter
are distinguishable based on the lighting, area, and time period the
witnesses had for observation. Moreover, there was not a misidentification
and the witnesses correctly selected the defendant from two other arrays.
Nonetheless, the Commonwealth has alternatively argued that the trial court
gave an instruction that was substantially similar to a Kloiber instruction.
Thus, it reasons that Appellant cannot establish actual prejudice. We agree
with this latter assertion.
Unlike Simmons and McKnight, the trial court in this case instructed
the jury regarding identification inconsistencies. Importantly, it directed the
jury to consider whether the witnesses had identified another person in the
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use the magic words that the jury must receive the identification evidence
dified Kloiber instruction adequately alerted the jury
of the potential problems with that testimony. Moreover, Brian Dingler
identified Appellant as the attacker, as did Ms. Bumpess, and a third
s side door of the
vehicle that fled the scene. Appellant did not dispute that he was the driver
of the car, instead arguing that Mr. Dingler, the passenger, had the motive
to kill the victim. For these reasons, Appellant cannot establish actual
prejudice.
presenting evidence and argument that another person killed the victim.
Appellant claims that because Mr. Bumpess did not identify him from the
family photograph and there was alleged blood discovered in his car on the
passenger seat where Mr. Dingler was seated, there was evidence that Mr.
Dingler committed the crime. He maintains that because Mr. Dingler was in
-wife, he had motive. Appellant
relies on four cases where the trial courts disallowed evidence that another
person committed the crime: Commonwealth v. McGowan, 635 A.2d 113
(Pa. 1993), Commonwealth v. Ward, 605 A.2d 796 (Pa. 1992),
Commonwealth v. Boyle, 368 A.2d 661 (Pa. 1977), and Commonwealth
v. Rini, 427 A.2d 1385 (Pa.Super. 1981).
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McGowan relied on Ward, Boyle, and Rini. In McGowan, police
arrested and charged the defendant with robbing a pharmacy. The
pharmacist and another employee identified the defendant. At trial, the
defendant attempted to introduce evidence that he had been incorrectly
identified as the perpetrator of a series of similar robberies. The trial court
refused to allow the evidence on the grounds that it was irrelevant. This
Court disagreed that the evidence was irrelevant but affirmed on alternative
grounds. The Supreme Court reversed. In doing so, it reasoned that
evidence that another person committed the crime is relevant and
admissible. Quoting at length from Rini, it opined that evidence of a
common scheme is permitted to be shown by the Commonwealth and
applies with equal force to a defendant arguing that another individual
committed the crimes in question.
In Ward, the Pennsylvania Supreme Court reversed a decision not to
allow a defendant to present evidence that other parties had motive to
commit the crime at issue, arson. Specifically, the defendant wished to
show via a police officer that he had acted as an informant in prior drug
investigations and feared that these individuals might retaliate. The Ward
Boyle
convictions based on conspiratorial liability where the trial court refused to
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allow him to introduce evidence of motive on the part of two other persons
who took part in the killing.
7
transcri It continues that during trial
and trial counsel introduced photographs intending to show that there was
purported blood on the passenger side of the vehicle where Mr. Dingler was
sitting.
We find the cases relied upon by Appellant readily distinguishable.
The cases cited by Appellant are situations where evidence was excluded.
The record in this matter demonstrates that trial counsel did present
evidence in an attempt to implicate Mr. Dingler. He also argued in his
concoct their story and were lying. Trial counsel, while not cross-examining
ively questioned Mr. Dingler, presented evidence
that Mr. Dingler was in the passenger seat of the car Appellant drove to the
scene, and attempted to show that there was blood where Mr. Dingler had
been seated in the car. During his closing summation, trial counsel argued
that the police conducted a poor investigation, Shakur Bumpess lied at trial
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7
However, it was made part of the record after the briefing in this matter.
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and his mother was mistaken in her identification. He also remarked that
N.T., 12/3/09, at 21. Counsel maintained that it was
improbable that the evidence was planted. Indeed, trial counsel argued
that Mr. Dingler had the motive to kill the victim because the victim referred
claim is without merit.
failing to interview and present the testimony of four witnesses regarding
Neglecting to call a
witness differs from failing to investigate a witness in a subtle but important
Stewart, supra at 712. The failure to investigate
of arguable merit where the record demonstrates that counsel did not
Id It can be unreasonable per se to conduct no
investigation into known witnesses. Id. Importantly, a petitioner still must
demonstrate prejudice. Id. To demonstrate prejudice where the allegation
is the failure to interview a witness, the petitioner must show that there is a
reasonable probability that the testimony the witness would have provided
would have led to a different outcome at trial. Commonwealth v. Dennis,
950 A.2d 945, 961 (Pa. 2008).
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In this respect, a failure to investigate and interview a witness claim
overlaps with declining to call a witness since the petitioner must prove: (i)
the witness existed; (ii) the witness was available to testify; (iii) counsel
knew of, or should have known of, the existence of the witness; (iv) the
witness was willing to testify; and (v) the absence of the testimony was so
prejudicial as to have denied the defendant a fair trial. See
Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011) (discussing failure
to interview and call an alibi witness).
Appellant provided witness certifications that he drafted himself for
Philip Deluca, Eleftheria Gabranidis, Rosemarie Pander, and Charlene
Pander, in which he indicated that these witnesses would testify that Mr.
Dingler and the victim had a contentious relationship. He also set forth that
-
Georgianna Pander, instigated fights between her ex-husband and Mr.
Dingler. PCRA counsel attached these certifications to his amended
petition.8 Appellant adds that trial counsel knew of these witnesses or
through reasonable investigation could have learned of them. According to
Appella
____________________________________________
8
The record contains a letter from PCRA counsel in which he explains that
he did not intend to seek any affidavits from the witnesses and that none of
the individuals had contacted him. PCRA counsel therein indicated that
Appellant had waived this issue by agreeing on the record not to present
additional witnesses aside from his one character witness. Appellant
attached this letter among others to a document he sent to the PCRA court.
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In addition, Appellant contends that the fact that he was colloquied on
his decision not to call any witnesses except his character witness does not
defeat his claim. He suggests that, absent an evidentiary hearing on this
issue in which trial counsel would testify as to his trial strategy, it cannot be
determined whether
intelligent.
affidavits is fatal to his claim and that his witness certifications were
insufficient because they were authored by himself. In advancing this
position, it relies on Commonwealth v. McLaurin, 45 A.3d 1131
(Pa.Super. 2012), Commonwealth v. Khalil, 806 A.2d 415 (Pa.Super.
2002), Commonwealth v. Lopez, 739 A.2d 485 (Pa. 1999), and
Commonwealth v. Lark, 698 A.2d 43 (Pa. 1997). The PCRA court
McLaurin, although it did not provide notice of this defect in its Rule 907
notice of intent to dismiss. See Commonwealth v. Robinson, 947 A.2d
710, 711 (Pa. 2008) (per curiam order) (opining that it was error to uphold
summary dismissal on grounds that petitioner did not include witness
certifications from trial counsel where PCRA court did not provide notice of
this defect).
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In McLaurin, the petitioner was found guilty by a jury of indecent
assault, indecent exposure, and corruption of a minor. The trial court also
adjudicated him guilty of possession of a small amount of marijuana. He
filed a timely PCRA petition, which the court dismissed without a hearing
after providing notice under Rule 907. One of the issues McLaurin raised
witnesses was grounds for summary dismissal, but rejected the claim on its
merits. However, on appeal, this Court, relying on Khalil, supra, rejected
his issue based solely on the failure of the petitioner to attach affidavits from
the witnesses. Judge Strassburger filed a concurring and dissenting opinion
in which he disagreed with the affidavit rationale and reasoned that the
-based discussion was erroneous. In his view, the
proper remedy was to remand the case to permit PCRA counsel to correct
the pleading defect.
We find McLaurin is erroneous to the extent it is read to require
affidavits. Such a reading is flatly contradicted by Commonwealth v.
Brown, 767 A.2d 576 (Pa.Super. 2001), and is in clear derogation of both
the PCRA statute and the rules of criminal procedure. McLaurin relied on
Khalil, supra, which was not a PCRA case, and involved an allegation of
ineffectiveness during direct appeal. Thus, the McLaurin
that decision is problematic where, as here, the rules of procedure and
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statute governing PCRA matters provide that witness certifications are
sufficient. Specifically, Pa.R.Crim.P. 902(A)(15) states that a petition
intended witness, stating the witness's name, address, and date of birth,
and the substance of the witness's testimony. Any documents material to
defendant shall attach to the
petition any affidavits, records, documents, or other evidence which show
prerequisite for an evidentiary hearing. Pa.R.Crim.P. 902(D).
Concomitantly, the statute reads,
Where a petitioner requests an evidentiary hearing, the petition
shall include a signed certification as to each 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).
Interpreting the statute and the predecessor rule to Rule 902,
Pa.R.Crim.P. 1502, the Brown Court found that a sworn affidavit is not
necessary to secure a hearing. That court, quoting from the legislative
history of the statute, observed:
the notes from the legislative history pertaining to the
enactment of this statutory section indicate that the legislature
expressly considered the question of whether a PCRA petitioner
would be required to obtain a sworn or notarized statement from
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a proposed witness in order to have the witness testify at an
evidentiary hearing. A principal architect of the 1995 Legislative
Amendments to the PCRA, Senator Stewart Greenleaf, spoke on
this question as follows:
In addition, when we held the hearing there was
concern about the fact that when you file a petition,
we want to make sure that it is a meritorious
petition, we do not want to have a frivolous petition,
that there are some witnesses that would be
available to testify, so the original bill required that
each witness had to sign a statement and have a
notarized, sworn statement at the end of the
statement indicating that this was a true and correct
representation of what he would testify to at the
coming collateral hearing. There were objections to
that, feeling that that was too onerous to require a
defendant to go out and obtained notarized
statements from all of his witnesses, some of which
would be hostile witnesses, and I agreed with that.
So as a result, this amendment allows a
defendant to merely present a summary of the
statement so we know generally what that witness is
going to say and merely sign a certification. Either
the witness, his attorney, the defendant's
attorney, or the petitioner himself, the
defendant himself can sign a certification saying
to his best knowledge that this was an accurate
statement of what the witness would testify to. So I
think it is an effort, again, not to take anyone's
rights away from him but also to help that defendant
in the processing of his appeal and hopefully to make
it easier for him to obtain a hearing, which we want
him to obtain.
Pa. Senate Journal, 1st Spec. Sess., June 13, 1995, at 217.
Brown, supra at 582-583 (Pa.Super. 2001) (emphasis added). The Brown
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that Appellant was not required to attach sworn affidavits to his PCRA
Id. at 583.9
As the decision in Brown based its ruling on both statutory
construction and the rules of procedure, and McLaurin is premised on a
non-PCRA case, Brown is the more sound precedent. Further, as
highlighted by the Brown decision,
himself is spurious. Its citation to Commonwealth v. Lopez, 739 A.2d 485
(Pa. 1999), is also misplaced as Lopez was not a PCRA case. The sole PCRA
case cited by the Commonwealth, Commonwealth v. Lark, 698 A.2d 43
(Pa. 1997), involved a PCRA petition filed prior to the November 1995
____________________________________________
9
Association was behind the draft of the 1995 PCRA amendments, Pa. Senate
Journal, 1st Spec. Sess., June 13, 1995, at 215-217, and early drafts of the
proposed legislation specifically called for affidavits. See S.B. 81, (Spec.
REQUESTS AN EVIDENTIARY HEARING, THE PETITION SHALL INCLUDE A
NOTARIZED AFFIDAVIT FROM EACH INTENDED WITNESS STATING THE
WITNESS'S NAME, ADDRESS, DATE OF BIRTH AND SUBSTANCE OF
131) he petition shall
include a notarized affidavit from each intended witness stating the witness's
name, address, date of birth and substance of testimony AND SHALL
. This
language was changed and the
See S.B. 81, (Spec. Sess. No. 1), June 13, 1995
No. 147); S.B. 81, (Spec. Sess. No. 1), Oct. 30, 1995 (Printe
Nov. 17, P.L. 1118, No. 32 (Spec. Sess. No. 1), § 1, effective in 60 days.
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amendments to the PCRA statute, which included the witness certification
provision. Therefore, when that petition was filed, the relevant portion of
the statute governing witness certifications was not in force. See Nov. 17,
P.L. 1118, No. 32 (Spec. Sess. No. 1), § 1, effective in 60 days.
Simply put, the certification requirement can be met by an attorney or
pro se petitioner certifying what the witness will testify regarding. See
Brown, supra; 42 Pa.C.S. § 9545(d)(1); Pa.R.Crim.P. 902(A)(15).
Accordingly, we expressly overrule McLaurin insofar as it requires PCRA
petitioners to file affidavits to be entitled to an evidentiary hearing.
the sole basis of inadequate witness certifications where the PCRA court did
not provide notice of the alleged defect. See Robinson, supra;10
Pa.R.Crim.P. 905(B). Nonetheless, Appellant is not entitled to relief on his
failure to interview or call witnesses claim for the reasons that follow.
In Commonwealth v. Rios, 920 A.2d 790 (Pa. 2007), the Supreme
Court concluded that a claim that counsel was ineffective in failing to call
alibi witnesses lacked arguable merit where the trial court conducted a
colloquy of the defendant regarding whether he agreed with the decision not
to proffer those witnesses. The High Court premised its decision on
____________________________________________
10
We acknowledge that per curiam orders are not binding precedent, but
find the discussion in Robinson, persuasive. See also Commonwealth v.
Williams, 782 A.2d 571, 526-527 (Pa. 2001)
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Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002). Therein, the Court
As Paddy expressed the view that the decision not to call alibi
witnesses was his as well as trial counsel's, and his decision has not been
shown to have been unknowingly, involuntarily, or unintelligently made, this
Id. at 316.
Instantly, the trial court conducted a thorough colloquy regarding
Appellan
only one character witness. We set forth part of that colloquy below.
presenting any factual testimony in terms of what happened on
the date that this incident is alleged to have occurred. You
talked to your attorney about that as well?
Defendant: Yes, sir.
Defendant: Yes, sir.
to present any evidence
on the factual issues; is that correct?
Defendant: Yes, sir.
Defendant: Yes, sir.
Court: And you had occasion to discuss all aspects of your case
with him?
Defendant: Yes.
Defendant: Yes, sir.
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Court: Any questions, Counsel?
Prosecutor: No, thank you.
Trial Counsel: Just briefly. Mr. Pander, His Honor asked you
questions about your decision. Have you had a chance to talk to
me? Do you remember asking those questions?
Defendant: Yes, sir.
Trial Counsel: You had a chance to talk to Mr. Henry from my
office.
Defendant: Yes, sir.
with
you today in the basement?
Defendant: Yes, sir.
Trial Counsel: That was about a lot of aspects of the case,
correct?
Defendant: Yes, sir.
Court: Are there any witnesses that you desire to call to testify
e[d] tomorrow morning?
Defendant: No, sir, just the character witness tomorrow.
N.T., 12/2/07, at 228-230. Based on these representations and the Rios
and Paddy
We are cognizant that in Commonwealth v. Nieves, 746 A.2d 1102
(Pa. 2000), a pre-Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)
direct appeal, our Supreme Court found an ineffectiveness claim warranted
relief where the defendant was colloquied as to his decision not to testify in
his own defense. There, counsel incorrectly advised the defendant that if he
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elected to testify, evidence of certain prior convictions would be admissible.
conclusively establishes that A
not to present additional witnesses.
secure DNA testing of alleged blood evidence discovered on the inside
passenger side door of hi
blood on the passenger side of the vehicle would establish that he was
at 65. He continues that this evidence would also have called into question
the identification testimony and that it was immaterial that the alleged blood
family.
The Commonwealth responds that Appellant has not proffered any
the alleged blood would be
exculpatory is speculative. It highlights that three eyewitnesses testified
similarly to Mr. Dingler and two of those witnesses identified Appellant, and
car.
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We recognize that in Commonwealth v. Williams, 899 A.2d 1060
(Pa. 1999), while discussing the reasonable basis of a claim that counsel was
ineffective in failing to secure DNA testing, the Supreme Court opined,
It is easy to say that failing to pursue exculpatory evidence is
ineffectiveness, but this presumes the evidence will indeed be
exculpatory. If counsel were sure the accused's DNA would not
be revealed in any relevant samples from the victim or scene,
certainly testing would give exculpatory results and should be
sought. However, the client's mere claim of innocence or alibi
does not always settle the question; effectiveness of counsel is
not dependent on accepting the candor of the client. Testing
that shows the DNA matches suddenly makes a conviction-one
that might have been avoided or less than certain-a sure thing.
That is, subjecting a client to DNA testing is very likely to
settle whether there will be a conviction or not. It can demolish
the prosecution's case, but it can cast it in concrete as well. It
alibi, or on reasonable doubt, and the less compelling the
Commonwealth's case, the less compelling is the desire for pre-
trial DNA testing. Not seeking testing that has the potential to
convict a client may be a very reasonable strategy; strategy is
not measured through hindsight against alternatives not
pursued, so long as trial counsel had a reasonable basis for the
decision made.
Williams, supra at 1064. The Williams
defendant requests pre-trial DNA testing, counsel should advise him such
test has the potential to strongly inculpate, not just exonerate. If the
defendant still wishes to have the test, counsel should accede to this
Id. at 1065. Since it was unclear in Williams why his attorney
did not seek DNA testing, the Williams Court remanded for a determination
as to whether counsel had a reasonable basis for not pursuing the testing.
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However, in this matter, DNA testing would not have led to a
reasonable probability that the outcome of the trial would have been
different. Here, the officer who processed the vehicle originally testified
that the blood-like stain in the passenger area was not in the vehicle when
he examined it. The alleged blood stain appeared in a photograph taken by
a defense investigator six days after police processed the car. The car was
Thus, the fact that blood was located in the vehicle after police examined it
and it was returned to its owner does not exculpate Appellant.
Moreover, as the Commonwealth astutely points out, aside from Brian
Dingler, whom Appellant claims committed the crime, two other
eyewitnesses identified Appellant as the murderer. Equally important, both
fleeing. Those witnesses had seen Appellant in the neighborhood on prior
occasions. Admittedly, one of those witnesses did misidentify the
perpetrator in a photograph. That witness, Mr. Bumpess, however, was not
friends with Mr. Dingler, conclusively identified Appellant at trial, and
remained steadfast that the attacker was the driver of the car that fled the
scene. A third witness could not identify Appellant, but testified to seeing
a single person identified Mr. Dingler as the person who killed the victim or
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stated that he drove the ve
11
him before entering the passenger side of the car. Mr. Dingler then
deposited blood from the fight in the passenger area of the vehicle, which
police did not discover when examining the car, but appeared after the car
was returned to his mother. However, the evidence established that the
ellant himself concedes
prejudice, his issue fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
____________________________________________
11
The Commonwealth asked the two eyewitnesses who identified Appellant
if they recognized Brian Dingler from that night; each stated that they did
not.
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