Com. v. Conrad, D.

J-S17018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DANIEL EUGENE CONRAD
Appellant No. 1906 MDA 2019
Appeal from the PCRA Order Entered October 15, 2019
In the Court of Common Pleas of Lebanon County
Criminal Division at No.: CP-38-CR-0000007-2017
BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED JULY 23, 2020
Appellant Daniel Eugene Conrad appeals from the October 15, 2019
order of the Court of Common Pleas of Lebanon County (“PCRA court”), which
denied his petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-
46. Upon review, we affirm.
Because of an incident that occurred on September 2, 2016, Appellant
was charged with driving under the influence (DUI) of a Schedule II or III
controlled substance (methamphetamine), DUI—controlled substance, and
driving while operating privilege is suspended or revoked.1 The case
proceeded to a jury trial, at which only the Commonwealth offered testimony.
First, the Commonwealth called to the stand Trooper Morgan Bright,
Pennsylvania State Police. Trooper Bright testified that, on September 2,
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1 75 Pa.C.S.A. §§ 3802(d)(1)(ii), (d)(2), and 1543(a), respectively.
J-S17018-20
2016, he was assigned to patrol duty when he responded to a dispatch at
11:40 p.m. of someone being followed. N.T. Trial, 4/18/18, at 7-8. Trooper
Bright testified that he responded to 6 South Lancaster Street in Jonestown
Borough, Lebanon County, which was in his jurisdiction. Id. at 8. Upon
arrival, Trooper Bright observed Appellant standing alone outside a legally
parked black Chevrolet S-10 pickup truck. Id. According to Trooper Bright,
no one else was around Appellant. Id. He recalled that the parking space the
truck occupied was right off a public road and could only be accessed by
travelling on a public road. Id. at 8-9. Trooper Bright testified that he had
passed the spot where the truck was parked approximately five to ten minutes
prior to responding to the dispatch. Id. at 17. At that time, Trooper Bright
did not observe the pickup truck in the parking spot. Id.
Trooper Bright testified that he spoke with Appellant who related that,
all night, he was being followed by “unknown individuals” “from Hazelton all
the way down here to Jonestown.” Id. at 9. Appellant did not provide any
specifics on or description of the individuals. Id. According to Trooper Bright,
Appellant remarked that the ordeal had been on the news and he “had been
ducking and dodging” the individuals. Id. Trooper Bright recalled that
Appellant was “fidgety and nervous” and his speech was “paranoid and
repetitive.” Id. Trooper Bright testified that, based upon his training and
experience, he recognized Appellant’s mannerisms to be consistent with
methamphetamine use. Id. at 10. He explained that paranoia and
hallucinations are indicators of methamphetamine use. Id. at 16.
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Trooper Bright then asked Appellant whether he had used drugs,
Appellant responded in the negative. Id. at 10. Thereafter, Trooper Bright
performed a field sobriety test on Appellant. Trooper Bright conducted a
“check of his eyes looking for different indicator of impairment, as well as the
Modified Rhomberg Balance Test, the results of which were consistent with
drug impairment. Id. at 11-14. Trooper Bright explained: “The count was
off. He had a fast count, which was consistent with a stimulant such as
methamphetamine. I observed body tremors, eyelid tremors also consistent.”
Id. at 14. Trooper Bright recalled that Appellant refused to perform further
testing on account of an alleged foot injury. Id. at 14-15. Trooper Bright
testified that he then asked Appellant again whether he had taken any drugs.
Id. at 15. According to Trooper Bright’s testimony, Appellant remarked that
“he did one bump of meth around 10 p.m.” Id. Trooper Bright explained a
bump of meth as “basically like a single use. Sometimes, they will put it on
their hand, snort it off an object.” Id.
Trooper Bright testified that he asked Appellant several times whether
he had driven the pickup truck. Id. at 16. Each time, according to Trooper
Bright, Appellant answered in the affirmative. Id. Appellant also admitted to
driving the truck prior to calling the police. Id. Trooper Bright explained that
the reason he asked Appellant multiple times whether he was driving the truck
was to “verify that he was actually in full control of that vehicle within a
reasonable close amount of time since I did not observe him driving the vehicle
at any point.” Id. at 16-17. Appellant had no companions with him that
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night—he was alone. Id. at 22. Trooper Bright recalled removing a set of
keys from Appellant, but was uncertain if a vehicle key was on the key ring.
Id. at 22-23. The Commonwealth played for the jury a video of the traffic
stop in question that seemingly confirmed Trooper Bright’s account of the
incident. Id. at 18-20.
The Commonwealth next offered the testimony of Trooper James
Paparella. Trooper Paparella testified that, on September 2, 2016, he was on
patrol duty with Trooper Bright when they received and responded to the
dispatch at 6 South Lancaster Street in Jonestown. Id. at 31. He testified
that he did not recall the pickup truck being in the area when he and Trooper
Bright had driven through it approximately 10 minutes prior to responding to
the dispatch. Id. at 32. Trooper Paparella recalled that when they
encountered Appellant, he appeared “extremely nervous,” “repetitive,” and
“seemed to be paranoid with what he was speaking about.” Id. at 33. Trooper
Paparella testified that he heard Appellant’s admission to methamphetamine
use and noticed nobody else with or around Appellant. Id. Trooper Paparella
recalled that Appellant “said that he had spoken to different officers and that
there was helicopters involved. It was on the news, that we should have
known about it. But there was no reports that we found that were legitimate.”
Id. at 34.
Trooper Paparella testified that he ran the pickup truck’s plate and the
truck came back registered to Appellant. Id. At the trial, the parties
stipulated to the following facts:
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On September 2, 2016, at approximately 11:50 p.m., [Appellant]
was placed under arrest for DUI by [Trooper Bright]. [Appellant]
consented to legal blood draw. [Appellant] was transported to the
Good Samaritan Hospital for blood testing. The blood was drawn
at 12:34 a.m. on September 3, 2016, by McKenzie Schneck, a
phlebotomist at the hospital. [Appellant’s] blood was
subsequently submitted to the MedTox Laboratories for analysis.
MedTox Laboratories is an approved testing facility for detecting
the presence of controlled substance pursuant to 46 Pa. Bulletin
76. [Appellant’s] w-blood sample was analyzed and certified by
Karla J. Walker, Director with MedTox Laboratories at 3:51 p.m.
on September 13, 2016. Dr. Walker has been appropriately
educated and trained to conduct such work. Her education and
training has been memorialized in her Curriculum Vitae[.] And
Dr. Walker’s testing revealed the presence of methamphetamine,
a Schedule II controlled substance in amount of 42 nanograms
per milliliter and amphetamine, Schedule II controlled substance,
a metabolite of methamphetamine in the amount of 11 nanograms
per milliliter, in [Appellant’s] blood. . . . And at all times,
[Appellant’s] blood sample was appropriately maintained and
preserved for chain of custody purposes.
Id. at 36-37. The jury found Appellant guilty of DUI of a Schedule II or III
controlled substance (methamphetamine) and driving while operating
privilege was suspended or revoked, a summary offense. The jury, however,
acquitted Appellant of DUI—controlled substance. On June 6, 2018, the trial
court sentenced Appellant to, inter alia, two to five years’ imprisonment for
DUI.2 Appellant filed post-sentence motions, which the court denied on
October 10, 2018. Appellant did not file a direct appeal.
On April 22, 2019, Appellant pro se filed the instant PCRA petition, his
first, alleging several ineffective assistance of counsel claims. The PCRA court
appointed counsel who filed an amended PCRA petition on May 23, 2019.
Following evidentiary hearings, the PCRA court, on October 15, 2019, denied
Appellant’s petition for collateral relief. Appellant appealed. The PCRA court
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2 The court imposed only a fine of $200.00 for the summary offense.
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directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained
of on appeal. Appellant complied, raising five assertions of error. In response,
the PCRA court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant
is not entitled to relief.
On appeal,3 Appellant presents five issues for our review.
[I.] Whether Appellant was denied his constitutionally guaranteed
right to effective representation when trial counsel failed to
adequately defend Appellant by failing to argue a defense to the
charges and failing to properly cross-examine witnesses?
[II.] Whether Appellant was denied his constitutionally guaranteed
right to effective representation when trial counsel failed to
subpoena Ms. Simcott to testify at trial that Appellant was not in
control of the key to the vehicle and therefore was not in control
of the vehicle. [Trial court] also failed to call additional witnesses?
[III.] Whether Appellant was denied his constitutionally
guaranteed right to effective representation when trial counsel
failed to request the complete jury trial transcript and therefore
was unable to appeal the issue of inadequate jury instructions as
it related to the elements of DUI?
[IV.] Whether Appellant was denied his constitutionally
guaranteed right to effective representation when trial counsel
failed to allow Appellant to testify?
[V.] Whether Appellant was denied his constitutionally guaranteed
right to effective representation when trial counsel failed to object
to the following comments made by the Commonwealth at trial:
“Defendant didn’t take the stand,” and “Defendant was handcuffed
and placed into the back of the vehicle”?
Appellant Brief at 4-5.
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3“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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As stated, Appellant’s claims before us involve ineffective assistance of
counsel. A PCRA petitioner is entitled to relief if he pleads and proves that
prior counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A. §
9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner
must plead and prove by a preponderance of the evidence that (1) the
underlying legal claim has arguable merit; (2) counsel had no reasonable basis
for acting or failing to act; and (3) the petitioner suffered resulting prejudice.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)
(en banc). “A petitioner must prove all three factors of the “Pierce[4] test,”
or the claim fails.” Id. Put differently, “[t]he burden of proving ineffectiveness
rests with Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa.
2005).
Instantly, after careful review of the record, and the relevant case law,
we conclude that the PCRA court accurately and thoroughly addressed the
merits of Appellant’s issues. See PCRA Court Opinion, 1/2/20, at 8-16. The
PCRA court determined that Appellant’s first issue, whether trial counsel
adequately defended him with respect to the Commonwealth’s argument that
Appellant had driven the pickup truck prior to the troopers’ arrival, lacked
merit. Id. at 10-11. The court reasoned that counsel not only cross-examined
the troopers about whether Appellant possessed the keys to the truck on the
night in question, but also argued to the jury that insufficient evidence existed
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4 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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to conclude that Appellant was operating the truck. Additionally, trial counsel
credibly testified at the PCRA hearing that Appellant admitted to her that he
had been driving the truck. Id. The PCRA court also found Appellant’s second
issue to lack merit. Id. at 11-13. Appellant alleged that trial counsel was
ineffective in failing to subpoena Melissa Simcott to establish that she, not
him, had driven the truck on the night at issue. The PCRA court found that
Appellant never mentioned Ms. Simcott’s name to trial counsel or law
enforcement at any point prior to or at the time of trial. Additionally, the court
determined that, despite multiple opportunities over a period of three months,
Appellant was either unable or unwilling to call Ms. Simcott to testify at the
PCRA hearing to offer the alleged exculpatory evidence. Id. at 12-13.
With respect to Appellant’s third issue, relating to jury instructions, the
PCRA court concluded that it too lacked merit. The court explained that the
jury was instructed properly on the DUI charge. Id. at 13-14. Similarly,
Appellant also does not obtain relief on his fourth issue. Appellant argues that
his trial counsel prevented him from testifying at trial. The PCRA court found
Appellant’s allegations to be self-serving and incredible. In crediting counsel’s
testimony, the PCRA court concluded that Appellant, on his own volition,
decided to remain silent during trial. Id. at 14. The court found that trial
counsel did not coerce Appellant into reaching this decision. Furthermore, the
PCRA court also found that Appellant had admitted to counsel throughout the
proceedings that he drove the pickup truck. Finally, the PCRA court concluded
that Appellant’s fifth issue also lacked merit. Appellant argues that the
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Commonwealth stated to the jury during closing argument that Appellant
“didn’t take the stand.” The PCRA court found this argument to be incredible
and inconsistent with the record. The court found that the transcript
“establishes beyond any doubt that the prosecutor never mentioned or sought
to take advantage of [Appellant’s] failure to testify at trial.” Id. at 16.
In sum, we conclude that Appellant’s ineffective assistance of counsel
claims lack merit. Accordingly, we affirm the PCRA court’s October 15, 2019
order denying Appellant PCRA relief. We further direct that a copy of the PCRA
court’s January 2, 2020 Rule 1925(a) opinion be attached to any future filings
in this case.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/23/2020
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Circulated 06/26/2020 11 :54 AM
')
IN THE COURT OF COMMON PLEAS LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TH OF
PENNSYLVANIA
v.
0
DANIEL CONRAD U1
APPEARANCES
Benjamin Baker, Esquire For Commonwealth of Pennsylvania
DISTRICT ATTORNEY'S OFFICE
Melissa Montgomery, Esquire For Daniel Conrad
OPINION BY CHARLES, J., January 2, 2020
After being convicted of Driving Under the Influence of a Controlled
Substance, the DEFENDANT has filed a Post-Conviction Relief Act (PCRA)
Petition seeking to re-write history. The DEFENDANT now claims that his
trial counsel should have proven that he was not operating a motor vehicle
on October 6, 2016. He makes this bold claim ...
- Despite the fact that police located the DEFENDANT - and no one else
- directly next to his Chevy S-10 pick-up truck;
1
- Despite the fact that the pick-up truck was located in a parking space
that was vacant five (5) to ten (10) minutes prior to arrival by police;
- Despite the fact that the DEFENDANT told police officers that he had
been driving the pick-up truck and had been followed "all night from
Hazelton down here to Jonestown"; and
Despite the fact that he told his own lawyer on multiple occasions that
he had been driving the pick-up truck.
For reasons that we will articulate in more detail within the body of this
Opinion, we categorically reject the DEFENDANT's recent and self-serving
proclamations that someone else was operating the vehicle.
I. FACTS
On October 6, 2016, Daniel Conrad (hereafter DEFENDANT) was
charged with one (1) count of Driving Under the Influence (DUI) of a
Schedule II or II Controlled Substance, one (1) count of DUI of a Controlled
Substance - Incapable of Safe Driving, and one (1) count of Driving While
Operating Privileges are suspended or Revoked. These charges related
to an incident that occurred on September 2, 2016, when Trooper Morgan
Brig ht (hereafter BRIG HT) and Trooper James Papa rel la (he re after
PAPARELLA) responded to a dispatch of someone being followed at
around 11 :40pm, at 6 South Lancaster Street in Jonestown Borough,
Lebanon County, Pennsylvania. (N.T. 7-8) DEFENDANT was standing
outside of a black Chevy S-10 pickup truck. The truck was legally parked
in a parking stall facing in towards the curb. (N.T. 8). The parking spot
2
was within. a Jonestown Borough open parking lot accessible only by
traveling on a roadway in Pennsylvania. (N. T. 9). That parking spot was
vacant 10-15 minutes before the dispatch. (N.T. 17).
BRIGHT spoke to DEFENDANT. DEFENDANT related to BRIGHT
that he was being followed by unknown individuals "all night from Hazelton
all the way down here to Jonestown." BRIGHT indicated that DEFENDANT
"mentioned that it had been on the news, and that he had been ducking
and dodging them around the Borough all night." (N.T. 9).
Based on BRIGHT's training and experience, BRIGHT assessed that
DEFENDANT presented actions that are consistent with methamphetamine
drug use. These actions included paranoia and repetitive speech,
fidgeting movements and nervous activity. BRIGHT asked DE FEN DANT if
he had used drugs and DEFENDANT initially said no. (N.T. 10).
DEFENDANT was unaware of the time of day, believing it was actually two
and one-half hours earlier than the actual time of nearly midnight.
DEFENDANT related that he was tired from driving all day. (N.T. 10-11).
BRIGHT again asked DEFENDANT if he had use methamphetamine.
DEFENDANT again denied use.
BRIGHT performed field sobriety tests on DEFENDANT. BRIGHT
conducted a "check of his eyes looking for different indicators of
impairment, as well as the modified Romberg Balance Test." (N.T. 11).
BRIGHT observed that DEFENDANT displayed symptoms showing "some
ind icat ion of impairment" to be consistent with methampheta mine use.
3
(N.T. 14). BRIGHT asked to conduct other field sobriety tests.
DEFENDANT demurred and "implied that he had a medical condition with
his feet that wou Id i mpai r-i mpede his ab i I ity to conduct the tests." ( N. T.
14-15).
BRIGHT again asked DEFENDANT if he had used
methamphetamine. DEFENDANT told BRIGHT he had "used it earlier in
the day. He did one bump of meth around 10p.m." (N.T. 15). PAPARELLA
observed DEF EN DAN T's mannerisms to be nervous, repetitive and
paranoid. (N.T. 33). PAPARELLA heard DEFENDANT admit to using
methamphetamine. (N.T. 33).
BRIGHT asked DEFENDANT several times if he drove the black
Chevy S-10 pickup truck. DEFENDANT told BRIGHT that he was driving
just prior to calling the Pennsylvania State Police to report being followed.
BRIGHT indicated that paranoia and hal I ucinations are consistent
indicators of methamphetamine use. BRIG HT asked many times to verify
that DEFENDANT "was actually in control of that vehicle within a
reasonable close amount of time since I [BRIGHT] did not actually observe
him driving the vehicle at any point." (N.T. 16-17).
BRIGHT and PAPARELLA had driven through the area where the
vehicle was 5 to 1 O minutes prior to receiving the dispatch call involving
DEFENDANT. BRIGHT and PAPARELLA did not see the pickup at that
time. (N.T. 17, 22, 32). At the time of dispatch, no companions were with
DEFENDANT. (N.T. 22, 33) DEFENDANT's keys and wallet were removed
4
from DEFENDANT. BRIGHT did not confirm that there was a vehicle key
in the set of keys. (N.T. 23) BRIGHT did not observe drug paraphernalia
in plain view of the vehicle. There was no indication that drugs were used
recently inside the vehicle. (N. T. 22-23).
DEFENDANT consented to a legal blood draw, which was conducted
at 12:34a.m. on September 3, 2016 at the Good Samaritan Hospital,
Lebanon, Pennsylvania. (N. T. 36). D EFE NDANT's whole-blood sample
analysis revealed the presence of methamphetamine and amphetamine.
(N.T. 36-37).
II. PROCEDURAL HISTORY
On April 18, 2018, the DEFENDANT was tried and found guilty by a
Lebanon County jury on charges of Driving Under the Influence of a
Controlled Substance. He was found guilty by this Court of Driving While
Operating Privileges Were Suspended or Revoked. On June 6, 2018, the
DEFENDANT was sentenced to serve two (2) to five (5) years in a State
Correctional facility. Shortly thereafter, the DEFENDANT filed Post-
Sentence Motions. This Court denied those Post-Sentence Motions via an
Opinion dated October 10, 2018.
On April 22, 2019, the DEFENDANT filed a prose PCRA Petition. We
appointed Attorney Melissa Montgomery to represent the DEFENDANT
regarding his PCRA. An initial hearing was conducted on July 8, 2019. As
is the custom of this Court, and before any testimony was presented, we
5
solicited a statement from the DEF EN DA NT's attorney about the issues that
were being pursued. The following issues were identified:
(1) That tria I cou nse I was ineffective for failing to present evidence
that would have proven that the DEFENDANT was not driving;
(2) That defense counsel was ineffective for failing to call Melissa
Simcott as a witness. According to the DEFENDANT, Ms. Simcott
would have acknowledged that she was driving the vehicle.
(3) That defense counsel failed to object to the Court's instruction
that omitted control of the movement of a vehicle as an element of
the DUI offense.
(4) That trial counsel prevented the DEFENDANT from testifying. And
(5) That trial counsel failed to object when the prosecutor argued
during summation that the DEFENDANT should be convicted
because he chose not to testify.
After we began to hear testimony, it became quickly apparent that
both sides should have subpoenaed witnesses who had material information
regarding the issues outlined above. To enable the parties to subpoena
the needed witnesses, we suspended testi many and re-scheduled the
conclusion of the PCRA hearing for October 10, 2019.
On October 10, 2019, DEFENDANT's trial counsel, Elizabeth Judd,
provided testimony. However, the DEFENDANT could not or would not
present testimony from his proposed witness, Melissa Simcott.
6
At the conclusion of testimony, we issued a Court Order dated
October 15, 2019 to deny the DEFENDANT's PCRA Petition. The
DEF EN DANT filed an Appeal. We solicited a Concise Statement of Errors
from the DEFENDANT's counsel. One was provided on December 5, 2019.
The DEFENDANT's Rule 1925 issues were similar, but not identical to the
ones he raised prior to commencement of the PCRA proceeding. The issues
the DEFENDANT identified in his PCRA Petition were as follows:
(1) That defense counsel was ineffective for failing to establish that
the DEFENDANT was not operating a motor vehicle on October 6,
2016.
(2) That trial counsel was ineffective for failing to subpoena Melissa
Simcott.
(3) That trial counsel was ineffective for not requesting a transcript of
the jury instructions provided by the Court.
(4) That trial counsel was ineffective for "not allowing" the
DEFENDANT to testify, and
(5) That trial counsel was ineffective for filing to object to the
prosecutor's summation.
Although we are loathe to request our already over-burdened court
reporters to prepare add itio na I transcripts, we nevertheless so Ii cited a
transcript of the portion of the Prosecutor's summation and our jury
instructions that addressed the elements of the DU I offense. That transcript
7
has been prepared and is now part of the record in this case. It clearly
shows that this Court did tell the jury that control over the movement of a
motor vehicle is an element to any DUI offense.
We will address all of the DEFENDANT's PCRA issues within the body
of this Opinion.
Ill. LEGAL PRINCIPLES GOVERNING PCRA PETITIONS
The PCRA provides for an action by which innocent persons
convicted of crimes that they did not commit and persons serving illegal
sentences can obtain relief. 42 Pa.C.S. § 9542. The PCRA is the exclusive
method by which collateral relief may be obtained in Pennsylvania.
Commonwealth v. Chester, 733 A.2d 1242, 1250 (Pa. 1999). To be
eligible for relief under the PCRA, a defendant must prove the following
elements by a preponderance of the evidence: (1) He must prove that he
has been convicted of a crime under the laws of this Commonwealth and
that he is serving a sentence of imprisonment, probation or parole for a
crime; (2) he must prove that the conviction resulted from one of the
enumerated errors listed in § 9543(a)(2); and (3) he must prove that the
allegation of error has not been previously litigated or waived. Finally, he
must prove that the failure to litigate the issue prior to or during trial could
not have been the result of any rational, strategic or tactical decision by
counsel. 42 Pa.C.S. § 9543(a).
8
Trial counsel will always be presumed effective, and the Defendant
bears the burden of proving otherwise. Commonwealth v. Lewis, 708 A.2d
497, 500 (Pa.Super. 1988) (citing Commonwealth v. Williams, 570 A.2d
75, 81 (Pa. 1990)). In determining whether counsel rendered ineffective
assistance, the court must first determine whether the issue underlying the
claim of ineffectiveness is of arguable merit. Commonwealth v. DiNicola,
751 A.2d 197, 198 (Pa.Super. 2000) (citing Commonwealth v. Johnson,
588 A.2d 1303, 1305 (Pa. 1991 )). If the claim is without arguable merit,
the Court's inquiry ends, because counsel cannot be deemed ineffective for
failing to pursue a meritless issue. DiNicola, 751 A.2d at 198.
If a defendant's underlying claim is of arguable merit, we must
examine the action chosen by trial counsel in order to ascertain if that
action was designed to effectuate the Defendant's interest. Id. The fact
that trial counsel's strategy may not ultimately have led to an acquittal does
not render the strategy legally deficient. Commonwealth v. Spotz, 896
A.2d 1191, 1235 (Pa. 2006). The Defendant must establish that but for
counsel's deficient performance, the result of his trial would likely have
been different. DiNicola, 751 A.2d at 198.
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IV. ANALYSIS
A.Proof that the DEFENDANT was Driving
The DEFENDANT now claims that his trial counsel was ineffective for
failing to question the investigating police officer about the location of the
DEFEN DAN T's keys, the location where the DEF EN DANT was standing
and the fact that the officer failed to feel the hood of the DEFENDANT's
vehicle in order to ascertain if it was warm. The purpose of such testimony
was to ostensibly establish that the DEFENDANT had not operated the
pick-up truck prior to arrival of police.
A review of the trial transcript reveals that Attorney Judd did in fact
question the investigating officers about the location of the DEFENDANT's
keys and the fact that the officers did not observe the DEFENDANT driving
the vehicle. Trial counsel did in fact argue to the jury that there was
insufficient proof that the DEFENDANT had been operating a vehicle.
More important. Attorney Judd provided credible testimony at the time of
the PCRA Hearing that her client admitted to her that he had been driving
the. vehicle. While it is true that Attorney Judd did not solicit information
about whether the police felt the hood of the pick-up truck, given the
totality of all of the rest of the information presented, and given that
Attorney Judd would have had no way of knowing whether the police did
in fact detect warmth from the hood of the DEFENDANT's vehicle, we
cannot and will not equate Attorney Judd's failure to ask that one question
with ineffectiveness.
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In point of fact, there was overwhelming evidence that DEFENDANT
operated the pick-up truck. State Police testified that on multiple
occasions and in multiple ways, the DEFENDANT himself admitted that he
had been operating the vehicle. In fact, he made a bizarre claim that he
had been involved in a lengthy chase that began in Hazelton and ended in
Jonestown where police encountered him and his vehicle.
Looking at the totality of the record before us, we cannot and will not
declare Attorney Judd to be ineffective for failing to rebut what was likely
unassailable - that the DEFENDANT had operated the pick-up truck prior
to his encounter with police.
B.Testimony of Melissa Simcott
The DEFENDANT claims that trial counsel should have subpoenaed
Melissa Simcott. He claims that Ms. Simcott would acknowledge that she
was driving the vehicle and he was not. In July at the time of the first
PCRA Hearing, we advised the DEFENDANT that he would have to procure
Ms. Simcott's testimony in support of his bald allegations. We afforded
the DEFENDANT with three (3) months to do so. Even in that time period,
the DEFENDANT was unable or unwilling to procure testimony from
Melissa Simcott to corroborate his self-serving claim that she was driving
the pick-up truck.
It is common for convicted defendants to file PRA claims based upon
the premise that their lawyer should have but did not subpoena testimony
11
from witnesses. The legal principles governing such situations are very
well established. A defense attorney's failure to call certain witnesses
does not constitute per se ineffectiveness. Commonwealth v.
Washington, 592 Pa. 698, 927 A.2d 586, 599 (2007). In establishing
whether defense counsel was ineffective for failing to call witnesses, a
defendant must demonstrate that 1) the witnesses existed and were
available; 2) counsel was aware of the existence of the witnesses, or
should have known of their existence and availability; 3) the proposed
witnesses were ready, wi 11 i ng and, able to testify on behalf of the
defendant; and 4) the absence of the proposed testimony prejudiced him.
Commonwealth v. Hall, 549 Pa. 269, 290-92, 701 A.2d 190, 201
(Pa.1997).
In this case, the record is devoid of any evidence - other than the
incredible and self-serving claims of the DEFENDANT himself - that
Melissa Simcott was driving the pi ck-up truck on October 16, 2016.
Melissa Simcott was not located in the vicinity of the pick-up truck when
police arrived. The DEFENDANT did not tell police that the vehicle had
been operated by Melissa Simcott. The DEFENDANT never told his own
lawyer that Melissa Simcott was the driver. Despite being given three (3)
months to pro cu re Ms. S imcott's purportedly exculpatory testimony, the
DEFENDANT was either unwilling or unable to procure testimony or
evidence that she was in fact the driver of the pick-up truck. Under such
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circumstances, the DEFENDANT's claim that trial counsel was ineffective
for failing to subpoena Melissa Simcott must fail.
C. Transcript of Jury Instructions
Nowhere is the DEFENDANT's desperation better exemplified than it
is with respect to his argument about the Court's jury instructions. Without
anything other than his own misguided hopes, the DEFENDANT argues
that this Court failed to instruct the jury that physical control of the
movement of a motor vehicle was an element of the DU I offense. Neither
the prosecutor nor the DEFENDANT's attorney recalled the type of glaring
omission that the DEFENDANT described. In addition, this jurist has
conducted hundreds of DUI trials during his twenty (20) years on the
bench. Never have we failed to instruct a jury about the "physical control
of the movement of a vehicle" element.
This Court is very reluctant to overburden Lebanon County's already
overworked court reporters by requiring them to prepare a transcript simply
because a defendant makes a claim that we know is not accurate.
Nevertheless, so that this does not devolve into a battle of memories, we
did procure a transcript of the portion of our jury instruction that addressed
the e le men ts of DU I. Th at transcript is now pa rt of the record. It clearly
reveals that this Court properly instructed the jury that physical control of
the movement of a motor vehicle is an element of the DUI offense.
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Accordingly, the DEFENDANT's PCRA claim regarding the jury instruction
of this Court must be denied.
D. Testimony of the DEFENDANT
The DEFENDANT claims that his lawyer prevented him from
testifying. Presumably, the DEFENDANT wanted to tel I the jury that he
was not the driver of the pick-up on October 16, 2016. We reject the
DEFENDANT's argument for multiple reasons.
Trial counsel Elizabeth Judd presented credible testimony that she
and the DEFENDANT discussed the question of whether or not to testify.
Attorney Judd stated that the DEFENDANT made the decision not to testify
and that she never coerced him into making this decision. We find Attorney
Judd's testimony to be credible. We conclude as a finding of fact that the
DEFENDANT himself chose not to testify and that choice was not forced
upon him by Attorney Judd.
Although the above finding disposes of the DEFENDANT's argument,
we also need to point out that throughout the proceedings, the
DEFENDANT admitted to Attorney Judd that he drove the pick-up truck.
As a lawyer, Attorney Judd has a duty not to suborn perjury or present
testimony she knows to be false. To the extent that the DEFENDANT now
believes he should have been called as a witness to deny driving, such
testimony would have been inconsistent with information the DEFENDANT
provided privately to Attorney Judd. Th is inconsistency would have
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created a dilemma in open Court for Attorney Judd as soon as she realized
the DEFENDANT was lying to the jury. This is a secondary reason why
Attorney Judd cannot be deemed ineffective for failing to call the
DEFENDANT as a witness.
E. Prosecution's Closing Arguments
The DEFENDANT's last issue is again dependent upon his faulty and
self-serving memory of what occurred at trial. DEF EN DANT argues th at
the prosecutor improperly commented upon his failure to take the witness
stand. The Court does not remember such an argument. Neither did the
DEFENDANT's trial counsel. Once again, we have asked one of our
overburdened court reporters to take the time to unnecessarily transcribe
the prosecutor's closing argument. That transcription is part of the record.
As with the closing instruction, the transcript establishes beyond any doubt
that the prosecutor never mentioned or sought to take advantage of the
DEFENDANT's failure to testify at trial. Once again, this argument by the
DEFENDANT is nothing more than a red herring. It provides no ground for
relief under the PCRA.
V. CONCLUSION
There is absolutely not validity to any of the DEFENDANT's PCRA
arguments. It is indeed unfortunate that the DEFENDANT's bogus
arguments forced the taxpayers of this community to pay for a lawyer to
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represent the DEFENDANT, a prosecutor to investigate and rebut the
DEFENDANT's arguments and court reporters who were forced to
unnecessarily prepare transcriptions to prove what everyone involved in
this case already knew - that this DEFENDANT is so desperate that he
will stop at nothing, including fabrication of claims, to avoid responsibility
tor his own conduct.
We will now give this case to the Pennsylvania Superior Court with
our recommendation that the DE FEN DANT's arguments be rejected
completely.
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