Comm. v. Dugan, P.

J-S26020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK ALAN DUGAN :
:
Appellant : No. 1519 WDA 2019
Appeal from the PCRA Order Entered September 16, 2019
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000817-2016
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 1, 2020
Patrick Alan Dugan appeals the denial of his request for relief under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm on
the basis of PCRA court’s opinion.
In February 2018, the trial court found Dugan guilty of two counts of
Attempted Homicide; fifteen counts of Aggravated Assault; fifteen counts of
Recklessly Endangering Another Person; and one count of Discharge of a
Firearm into Occupied Structure.1 It sentenced him to a concurrent term of
five to ten years’ incarceration for both counts of Attempted Homicide and
three to six years’ incarceration for the Discharge of a Firearm into Occupied
Structure count. The court imposed no further penalty on the remaining
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 901(a), 2501(a), 2702(a)(1), 2705, and 2707.1(a),
respectively.
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convictions. Trial counsel withdrew from representing Dugan, and the court
appointed new counsel, who filed a timely direct appeal. We affirmed the
judgment of sentence in December 2018. Commonwealth v. Dugan, No.
768 WDA 2018, 2018 WL 6735018 (Pa.Super. filed Dec. 24, 2018)
(unpublished memorandum). Dugan did not seek review in the Pennsylvania
Supreme Court.
Dugan filed the instant PCRA petition, his first, in February 2019. The
court appointed counsel who filed an amended PCRA petition raising claims of
ineffective assistance of trial and appellate counsel. The PCRA court held a
hearing at which trial and appellate counsel testified. The PCRA court denied
the PCRA petition and this timely appeal followed.
Dugan raises the following issues before this Court:
1. Whether the PCRA court erred in not finding trial counsel,
Blaine Jones, Esq., ineffective for failing to question
Trooper Robert C. Reitler, during cross-examination, as
to why he did not collect a GSR sample from co-
defendant, Zachary Helisek?
2. Whether the PCRA court erred in not finding Attorney
Jones ineffective for failing to explain a bench trial to him
prior to [Dugan] waiving his right to a jury trial, and for
convincing [Dugan] that waiving his right to a jury trial
would be in his best interest?
3. Whether the PCRA court erred in not finding Attorney
Jones ineffective for failing to cross-examine co-
defendant, Zachary Helisek, regarding various
inconsistencies in the statements that Zachary Helisek
made to police?
4. Whether the PCRA court erred in finding the Fayette
County Public Defender's Office ineffective for failing to
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file a petition for allowance of appeal to the Pennsylvania
Supreme Court?
Dugan’s Br. at 3 (unnecessary capitalization omitted).
Our standard of review of an order denying PCRA relief is limited to
determining “whether the PCRA court’s determination is supported by
evidence of record and whether it is free of legal error.” Commonwealth v.
Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (citation omitted). Dugan
challenges the effectiveness of trial counsel. We presume counsel was
effective. Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011). Therefore,
Dugan bore the burden of pleading and proving all of the following:
1) the underlying claim has arguable merit;
2) no reasonable basis existed for counsel’s actions or
failure to act; and
3) petitioner suffered prejudice as a result of counsel’s error
such that there is a reasonable probability that the result of
the proceeding would have been different absent such error.
Id. at 373.
The PCRA court denied all of Dugan’s ineffectiveness claims, and we
affirm on the basis of the Pa.R.A.P 1925(a) opinion of the Honorable Linda R.
Cordaro. Dugan’s first claim was that counsel was ineffective for failing to
cross-examine a trooper about why the State Police did not recover gunshot
residue from Dugan’s co-defendant, Zachary Helisek. The PCRA court
explained that it rejected the claim because Dugan had failed to show that
counsel’s action in this regard was unreasonable. See PCRA Ct. Op. filed
9/16/19 at 5. The court pointed out that at the PCRA hearing, trial counsel
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testified that police collected gunshot residue from four individuals at or near
the crime scene at the time of the crime, but Helisek was not one of those
individuals, as police did not apprehend him until a day or two after the crime.
N.T., PCRA Hearing, 8/30/19, at 14, 16.
The court also denied Dugan’s claim that counsel “never once explained
to me the parameters of a bench trial.” N.T., PCRA Hearing, at 28. The PCRA
court denied this claim, citing the Waiver of Jury Trial form that Dugan signed
along with trial counsel. See PCRA Ct. Op. at 3, 5. It also noted that it
conducted an oral colloquy with Dugan where he stated that it was his desire
to waive his right to a jury and have the case heard by the trial judge. Id. at
4. The court also credited the testimony of trial counsel at the PCRA hearing
that “it is his practice to provide his clients with their option of proceeding with
a bench trial or a jury trial.” Id.
The court also explained that Dugan’s claim that counsel rendered
ineffective assistance of counsel by failing to question Helisek about his
inconsistent statements to police was meritless. It noted that the trial
transcript contained 18 pages of trial counsel’s cross-examination of Helisek,
during which counsel asked Helisek about both statements he gave to the
police. See id. at 5-6.
The PCRA court also rejected Dugan’s final claim, which challenged the
effectiveness of appellate counsel. He claimed that appellate counsel was
ineffective for failing to file a petition for allowance of the appeal with the
Pennsylvania Supreme Court. The PCRA court explained that it rejected the
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claim because it did not credit Dugan’s testimony that he asked counsel to
seek review in the Pennsylvania Supreme Court. Id. at 8. The court further
stated that Dugan failed to show that the issue he claimed to want the
Supreme Court to review – a sufficiency challenge – was not frivolous, and
thus not a basis on which to predicate a claim of ineffectiveness for failure to
seek allowance of appeal. Id.
After a review of the parties’ briefs, the certified record, and the relevant
law, we find no abuse of discretion or error in the PCRA court’s denial of relief.
We thus affirm the rejection of Dugan’s PCRA petition on the basis of Judge
Cordaro’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2020
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Circulated 09/16/2020 10:27 AM�
IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA
v.
PATRICKALAN DUGAN,
Defendant. No. 817 of 2016
OPINION
Linda R. Cordaro, J.
SUMMARY
Before this Court is an Amended Post-Conviction Relief Act Petition filed by
Defendant, Patrick Alan Dugan. After full consideration of the Hearing held on August
30, 2019, the arguments of counsel, and appropriate case.law, this Court DENIES the
Defendant's requested relief.
BACKGROUND
On February 6, 2018, following a bench trial, Defendant was found guilty of two
counts of Criminal Attempt, Criminal Homicide; fifteen counts of Aggravated Assault;
Discharge of a Firearm into Occupied Structure; and fifteen counts ofRecklessly
Endangering Another Person, Defendant was sentenced to five to ten years on each
charge of attempted homicide, to run concurrently, and three tosix years on the
Discharge of a Firearm offense, also to run concurrently. Defendant's trial counsel was
Attorney Blaine Jones, who withdrew his appearance immediately after trial. Thereafter,
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this Court appointedthe Fayette County Public Defender's Office to represent the
Defendant on appeal.
An Appeal to the Pennsylvania Superior Court was timely filed, and on December
24, 2018, the Pennsylvania Superior Court issued an Opinion affirmingtheJudgement
of Sentence. Defendant thereafter filed this timely Post-Conviction Relief Act Petition,
andthis Court appointed Attorney James Natale to represent the Defendant. Defendant
alleges ineffective assistance by both his trial counsel, Attorney Blaine Jones; and his
appellate counsel, the Fayette County Public Defender, Attorney Jeffrey Whiteko.
DISCUSSION
Defendant argues that both ofhis previous attorneys provided him with
ineffective assistance of counsel for numerous reasons discussed more fully herein. In
order to succeed on a claim ofineffective assistance, a defendant must establish that the
claim is of arguable merit, that no reasonable trial strategy existed for counsel's action
or inaction, and that the outcome of the proceedings would have been different but for
counsel's failures. Counsel is presumed effective, and it is the defendant's burden to
prove otherwise. Commonwealth v. Daniels, 963 A.2d 409, 427 (Pa. 2009).
Defendant contends that trial counsel was ineffective for failing to explain a
bench trial to the. Defendant. With respect to claims involving involuntary jury waivers
due to counsel's ineffectiveness, the defendant must prove actual and not presumed
prejudice. Adefendant has the burden to demonstrate "a reasonable probability that the
result of the waiver proceeding would have been different absent counsel's
ineffectiveness." Commonwealth v. Mallory, 941 A.2d 686, 702 (Pa. 2006).
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On October 2, 2017, the Defendant signed a Waiver of Jury Trial, and the written
waiver was also signed by Attorney Blaine Jones and the Honorable Joseph George. The
written waiver includes that the Defendant elects to be tried by a Judge without a jury:
[F]ully understanding that if he/she were tried by ajury:
(a) [T]he jury would be chosen from members of the community
thereby producing a jury of his/her peers;
(b) [A]ny verdict rendered by a jury must be unanimous, that is, all
twelvejurors must agree before they can return a verdict of guilty;
and
(c) [H]e/she would be permitted to participate in the selection of the
Jury.
Again, on February 1, 2018, the Defendant signed a Waiver of Jury Trial, in the
same form as the Waiver signed on October 2, 2017, and this Waiver was signed by
Attorney Blaine Jones and the undersigned after an on-the-record colloquywiththe
Defendant as follows:
Q. Mr. Dugan, I have been provided by your counsel this waiver of jury trial,
is this your signature on, on this document?
A. Yes, Your Honor.
Q. And did you carefully review this document with your attorney?
A. Yes, Your Honor.
Q. How old are you, sir?
A. 24 years old.
Q. And how far did you go in school?
A. Sophomore year of college, Your Honor.
Q. So it's fair to sayyou read, write and understand English?
A. Yes, Your Honor.
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Q. Now, was this document signedtoday?
A. Yes, YourHonor,
Q. And have you consumed any drugs, alcohol or any medication in the last
48 hours?
A. No, Your Honor.
Q; And do youunderstand that you have the right to have your case heard by
a jury?
A. Yes, Your Honor.
Q. And do you believe that you had sufficient time to discuss the matter of a
jury trial with attorney Jones?
A. Yes, Your Honor.
Q. And is it your desire to waive your right to have a trial by jury and have
this case heard by this Court?
A. Yes, Your Honor.
Q. You have any questions about your right to a jury trial?
A. No, Your Honor.
Q. You have any questions about this waiver of the jury trial?
A. No, Your Honor.
Uie Court: The Court finds that the defendant has made a knowing, voluntary,
Intelligent waiver of his right to a jury trial and we will proceed.
Criminal Non-Jury Trial Proceedings at 12-13.
At the PCRA hearing, Attorney Blaine Jones testified that it is his practice to
provide his clients with their option of proceeding with a bench trial or a jury trial.
Attorney Jones testified that it is not his job to make the decision, but ultimately.It is up
to the client whether to have ajurytrial. This Court finds the testimony ofthe Defendant
to be incredible when he testified that Attorney Jones never explained to him the
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difference between a bench trial and a jury trial. This Court finds the testimony of
Attorney Jones to be very credible to show that he assured that his client understood his
right to have a jurytrial or waive a jury trial. As a result, there is not factual support to
Defendant's claim of ineffectiveness for counsel's failure to explain a bench trial to the
Defendant. In addition, this Court finds that Defendant has failed to present any
evidence of prejudice due to the fact his case proceeded as a non-jury trial.
Defendant also avers that Attorney Jones failed to conduct proper cross-
examination of Trooper Reitler. Specifically, Defendant raises as ineffectiveness
Attorney Jones's failure to ask Trooper Reitler why there was not gunshot residue
collected from co-defendant Zachary Helisek, As Attorney Jones testified, on the date of
this crime, gunshot residue was collected from the four individuals apprehended at or
nearthe scene. Zachary Helisek was not detained on the date of the crime, and Attorney
Jones explained this as the reason that he did not inquire about gunshot residue
collected from Zachary Helisek, As a general rule, in criminal proceedings, an attorney is
authorized to act for his client and to determine for the client all procedural matters, as
well as trial strategy and tactics. A court will not second-guess a trial counsel's trial
tactics, so long as tliere is a reasonable basis for what counsel did or did not do.
Commonwealth v. Rivers, 786 A.2d 923, 930 n.5 (Pa. 2001).
In addition, Defendant argues that trial counsel was ineffective with regard to his
cross-examination of co-defendant, Zachary Helisek. Defendant testified that Attorney
Jones failed to bring up the inconsistencies in two written statements of Mr. Helisek.
Upon review of the trial transcript, this Court does not accept this argument by the
Defendant. The trial transcript contains eighteen pages of cross-examination of Mr.
Helisek by Attorney Jones. This interrogation includes Attorney Jones specifically
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asking Mr. Helisek about the first and second statements that he provided to the police.
In addition, Attorney Jones brought up the fact that Mr. Helisek's memory may have
been impaired by alcohol and drugs, andthat.Mr, Helisek may have been testifying to
"save" his "tail.''
At the PCRA Hearing, Attorney Jones testified crediblythat it is his practice of
asking the court for just a moment after he questions each witness, and he asks the
defendant if there is anything he missed, or if there is anything the defendant would like
him to ask each witness. Therecord reflects that before Attorney Jones concluded his
cross and recross of Mr. Helisek, he asked, "May! have a moment Judge" and "One
moment please, Judge." In addition, the Defendant himself testified that Attorney Jones
told him thatMr. Helisek appeared to be trying to help the Defendantin his testimony,
and Attorney Jones did not want to make Mr. Helisek mad. Furthermore, theDefendant
testified that Attorney Jones did ask a few of the questions that Mr. Dugan wanted
Attorney Jones to ask Mr. Helisek on the stand. The Defendant has failed to establish
his claim for ineffectiveness in this regard.
Defendant next contends that his appellate counsel, Public Defender Jeffrey
Whitel-:o, was ineffective. Specifically, Defendant argues that the Public Defender failed
to file a Petition for Allowance of Appeal to the Pennsylvania Supreme Court after the
Superior Court issued an Opinion affirmingthe Defendant's sentence. The Defendant
made a bald assertion that he requested an appeal to the Pennsylvania Supreme Court
when he received notice in the mail that his appeal was denied. He testified that he
wrote the Public Defender's office the same night as he received the denial of his appeal.
Then, on cross-examination, the Defendant testified that he believes he contacted his
mother to file the appeal, but she couldn't get in touch with the Public Defender.
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-----------·----·,.·--·
AttorneyWhiteko testified that he cannot specifically recall if the Defendant
requested a Petition for Allowance of Appealto the Pennsylvania Supreme Court. This
Court finds it significant that there was no testimony by Attorney Whiteko that his file
contained any letter from the Defendant requesting a Petition for Allowance of Appeal.
A defendant has a rule-based right to effective counsel throughout his direct
appeal. Pa.R.Crim.P.122(B)(2); Commonwealthv. Liebel, 825 A.2d 630, 633 (Pa.
2003). While an appeal to the Supreme Court is a matter of judicial discretion and not a
matter of right (See Pa.R.A.P. 1114(a)), a defendant can establish prejudice for counsel's
failure to seek allowance of appeal in certain circumstances. After the Superior Court
renders a decision, a defendant has a right to effective consultation regarding the filing
of a petition for allowance of appeal with the Pennsylvania Supreme Court, and failure
to receive said consultation would result in prejudice. See Commonwealth v. Gadsden,
832 A2d 1082, · 1088 (Pa. Super. Ct. 2003); But cf Commonwealth v. Bath, 907 A.2d
619, 620-21 (Pa. Super. Ct. 2006) (holding that it is not per se ineffectiveness when
counselfails to consult with the defendant concerning the potential advantages of filing
a petition for allowance of appeal). Further, defendants who request that counsel file a
petition for allowance of appeal on their behalf have a right to effectiverepresentation,
and it is per se ineffective assistance for counsel to fail to file that petition. See
Commonwealth v. Reed, 971A.2d 1216, 1225(Pa. 2009).
Where the record is devoid of a defendant's request for review before the
Pennsylvania Supreme Court, the defendant still may have a cognizable claim under the
PCRA if the defendant proves any issues the defendant sought to take to the Supreme
Court "rose 'abovefrivolity," Commonwealth v. Rigg, 84 A.3d 1080, 1088 (Pa. Super.
Ct. 2014) (quoting Bath at 624); see also Gadsden at 1085-86 (citing Liebel at 635).
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In Bath, the Superior Court stated, "[w]here no request [to file a petition for
allowance of appeal] has been made, an appellant must establish that a duty to consult
was owed." Bath at 623. An appellant may establish a duty to consult byindicating
issues that had any potential merit for further review. See Roe v. Flores-Ortega, 528
U.S;470, 480 (2000); See also Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa.
Super. Ct. 2001). This does not require appellant to demonstrate that the Supreme
Court would likely grant review to a petition for allowance of appeal, but onlythat
appellant must show that any issue rises above frivolity. Bath at 623-24.
In the case presently before this Court, other than the Defendant's bald
allegation, the record lacks any evidence that Defendant asked direct appeal counsel to
file a petition for allowance of appeal with the Pennsylvania Supreme Court. Therefore,
Defendant must establish that a duty to consult was owed. However, Defendant fails to
state what.issues he would have sought to pursue, nor does he attempt to prove any
claim would have risen above frivolity. Specifically, Defendant never suggests how his
challenge to the sufficiency of the evidence to support his conviction would not be
considered frivolous upon further appeal. As such, this Court finds that Defendant has
failed to meet the prejudice prong of the test for ineffective assistance of counsel for his
failure to show his sufficiency of the evidence challenge would rise above mere frivolity
upon further review. Accordingly, this Court cannot find that appellate counsel was
ineffective.
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-
CONCLUSION
For the foregoing reasons, Mr. Dugan's Petition for Post-Conviction relief is
Denied.
BY THE COURT:
ATIEST:
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Linda R. Cordaro, Judge
Dated: September 16, 2019
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