Com. v. Hess, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY ALLEN HESS :
:
Appellant : No. 487 MDA 2019
Appeal from the PCRA Order Entered March 8, 2019
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004812-2014
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 05, 2020
Gregory Allen Hess appeals from the order that denied his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
The PCRA court offered the following droll summary of the history of this
case:
There was an old woman who swallowed a fly; I do
not know why she swallowed the fly, poor old woman
she was sure to die.
I recite this children’s nursery rhyme as it mirrors
[Appellant’s] varieties of self-induced dilemmas as well has his
problem solving skills. Prior to the instant case, [Appellant] had
been charged with hiring Calvin Jones, Jr. to kill his wife’ s lover.
Mr. Jones then reported this matter to the state police and
[Appellant] was charged for the solicitation.
In the process of that proceeding, [Appellant] then
swallowed the spider to catch the fly, as he then hired Michael
Crampton to kill Calvin Jones to prevent Jones from testifying
against him in that case. Mr. Crampton reported this matter to
the District Attorney’s Office and [Appellant] was again charged
with a second offense similar to the first.
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[Appellant] then swallowed the bird to eat the spider when
he hired Doensae Bryant to kill Michael Crampton to prevent
Crampton from testifying against him. [Appellant] was acquitted
of soliciting Calvin Jones in the trial, which preceded the instant
case. The second and third solicitation cases were consolidated.
[Appellant] went to trial on those two solicitations and was
ultimately convicted.
Order Denying PCRA Petition, 3/8/19, at 1-2.
Appellant was sentenced to an aggregate term of twelve to twenty-four
years of imprisonment, and his direct appeal resulted in no relief. See
Commonwealth v. Hess, 175 A.3d 387 (Pa.Super. 2017) (unpublished
memorandum).
On July 13, 2018, Appellant, through counsel, filed a timely PCRA
petition. Therein, he alleged that his trial counsel was ineffective in failing to
request a mistrial or to obtain exculpatory text messages between Mr.
Crampton and Trooper Shawn Wolfe, and that the Commonwealth violated
Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing that favorable plea
deals were offered to two witnesses who testified against Appellant. Through
an amended petition, Appellant added an after-discovered evidence claim
based upon the affidavit of an individual professing that Mr. Crampton had
admitted fabricating the murder-for-hire story in order to curry favor with the
district attorney.
The PCRA court held hearings on the claims and permitted the filing of
post-hearing memoranda. Ultimately, it denied Appellant’s petition by order
of March 8, 2019. Appellant timely filed a notice of appeal, and both Appellant
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and the PCRA court complied with Pa.R.A.P. 1925. However, because
Appellant’s Rule 1925(b) statement did not include reference to the claim
regarding after-discovered evidence, Appellant requested and obtained from
this Court a remand with leave to file a supplemental Rule 1925(b) statement.
After additional delays caused by Appellant’s pro se filings and questions
concerning his representation status, this appeal is ripe for our consideration.
Appellant presents the following questions to this Court:
I. Whether the [PCRA] court erred by denying
[A]ppellant’s PCRA petition as trial counsel was ineffective for
failing to request a mistrial after members of the jury became
aware of Appellant’s prior case.
II. Whether trial counsel provided ineffective assistance
of counsel by failing to obtain text messages between
Commonwealth witness, Michael Crampton, and Trooper Wolfe.
III. Whether the Commonwealth failed to disclose the
existence of plea deals with Michael Crampton in violation of
Brady v. Maryland.
IV. Whether the [PCRA] court erred by denying the
Appellant’s Petition for Post-Conviction Relief raising after
discovered evidence pursuant to 42 Pa.C.S.A. § 9543(a)(2)(vi).
Appellant’s brief at 5.
We begin with a review of the pertinent legal principles. “This Court’s
standard of review regarding an order denying a petition under the PCRA is
whether the determination of the PCRA court is supported by the evidence of
record and is free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344,
347 (Pa.Super. 2017). “[A] PCRA court has discretion to dismiss a PCRA
petition without a hearing if the court is satisfied that there are no genuine
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issues concerning any material fact; that the defendant is not entitled to post-
conviction collateral relief; and that no legitimate purpose would be served by
further proceedings.” Commonwealth v. Cruz, 223 A.3d 274, 277
(Pa.Super. 2019) (internal quotation marks omitted). Further, “[i]t is an
appellant’s burden to persuade us that the PCRA court erred and that relief is
due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)
(internal quotation marks omitted).
Counsel is presumed to be effective, and a PCRA petitioner bears the
burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112
(Pa.Super. 2018). To do so, the petitioner must plead and prove: “(1) the
underlying legal claim is of arguable merit; (2) counsel’s action or inaction
lacked any objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a reasonable
probability of a different outcome at trial if not for counsel’s error.”
Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa.Super. 2020) (internal
quotation marks omitted). “A reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the proceeding.” Id. at
16 (cleaned up). The failure to establish any prong is fatal to the claim. Id.
at 15.
Appellant first contends that trial counsel rendered constitutionally-
deficient assistance by not moving for a mistrial. Specifically, Appellant
extensively details evidence of record that at least one juror in the instant
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murder-for-hire case learned of a prior case in which Appellant was acquitted
of the alleged solicitation of Mr. Jones to commit murder, and discussed it with
other jurors. See Appellant’s brief at 24-29. Appellant maintains that the
jurors’ exposure to this information and improper mid-trial discussions about
it were highly prejudicial, “effectively stripped him of the presumption of
innocence,” and subverted his due process rights. Id. at 29-30. Appellant
cites his testimony at the PCRA hearing that he desired a mistrial on this basis,
but counsel failed to consult him. Id. at 30-31. Appellant further suggests
that his trial attorneys had no reasonable basis to refrain from seeking a
mistrial, because avoiding going through a second trial was not reasonably
designed to effectuate Appellant’s interests. Id. at 31.
The PCRA court, on the other hand, cites contrary testimony which it
deemed credible, indicating that Appellant’s trial attorneys did discuss the
option of seeking declaration of a mistrial in response to this information. See
Order Denying PCRA Petition, 3/8/19, at 5. During this discussion, “everyone
agreed that they were halfway through the case, they all felt confident in the
way in which the testimony was going, and they all believed that the jury
knowing that [Appellant] had been acquitted of very similar charges would
weigh in their favor and not be detrimental to their client.” Id. Indeed, all
three attorneys and Appellant agreed not to pursue a mistrial, but to instead
request a cautionary instruction, which the trial court gave to the jury. Id.
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The PCRA court’s factual findings and credibility determinations are
supported by the record, and thus must be accepted by this Court. See N.T.
PCRA Hearing, 11/20/18, at 54, 78-79, 109 (testimony from Appellant’s trial
counsel that a mistrial motion was discussed with Appellant and it was decided
as a group to proceed instead).1 As such, Appellant’s challenge to the
reasonable-basis prong of the ineffectiveness test, which is premised upon his
testimony that contradicts separate testamentary evidence accepted as
credible by the PCRA court, fails. Since Appellant cannot establish that counsel
lacked a reasonable basis for forgoing a mistrial, we have no basis to reverse
the PCRA court’s denial of his first claim.
Next, Appellant contends that his trial attorneys were ineffective in not
obtaining certain text messages. The PCRA court offered the following
background information concerning this issue:
During the course of trial, there was testimony from Michael
Crampton in which he referred to a text communication between
himself and trooper Shawn Wolfe of the Pennsylvania State Police.
The communication allegedly happened during a period of time
that [Mr.] Crampton was the subject of a fugitive warrant. . . .
During the PCRA hearing, testimony revealed that trial
counsel for [Appellant] immediately met with the District Attorney
who was trying the case to inquire as to why they had not received
copies of these text messages. Testimony also revealed that it
was explained to counsel that there were no text messages and
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1 The transcript from the November 20, 2018 portion of the PCRA hearing is
not included in the certified record. However, “where the accuracy of a
document is undisputed and contained in the reproduced record, we may
consider it.” Commonwealth v. Holston, 211 A.3d 1264, 1276 (Pa.Super.
2019).
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that the witness was mistaken. [Trooper Wolfe] testified that
there was a phone call in which [Mr. Crampton] told the trooper
that he desired to turn himself in.
Order Denying PCRA Petition, 3/8/19, at 2-3.
Appellant argues that trial counsel violated his right to effective
assistance of counsel in “specifically disregarding his demand” that they obtain
the text messages to which Mr. Crampton testified. Appellant’s brief at 32-
33. Appellant suggests that these communications “necessarily concern[ed]
his fugitive status, and the need for [Mr.] Crampton to surrender . . . in order
to receive a deal for his testimony against Appellant.” Id. at 33. Appellant
posits that these exculpatory communications, whether they were via text
message or telephone conversation, should have been pursued by counsel to
impeach Mr. Crampton. Id. Specifically, Appellant speculates that if Trooper
Wolfe had been called to testify about the communications and had denied
offering any deal to Mr. Crampton, “much stood to be gained by the jury in
assessing through his demeanor, deportment, expressions and statements,
the Trooper’s credibility, regarding any potential deal or agreement during
cross-examination, and in undermining [Mr.] Crampton’s testimony about
sending text messages.” Id. at 34.
Upon consideration of the testimony, the PCRA court found no arguable
merit to the claim or prejudice suffered by Appellant, because it was “satisfied
that these text messages do not exist . . . .” Order Denying PCRA Petition,
3/8/19, at 3. Concerning the allegation that counsel should have called
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Trooper Wolfe to question him about his communications with Mr. Crampton
during that time, the PCRA court found Appellant’s proof of both the arguable
merit and reasonable basis prongs lacking. The court concluded that the
existence of any exculpatory evidence in these conversations was fabricated
“out of whole cloth.” Id. at 4. Moreover, the PCRA court credited counsels’
position of strategizing that it “would be more productive to argue missing
facts to the jury, which they did vehemently.” Id. “The alternative would
have been to call the [trooper], have him explain, and lose any traction with
the jury by proving that there was no exculpatory evidence for [Appellant] in
these communications.” Id.
We again find no basis to disturb the PCRA court’s findings. Trooper
Wolfe testified at the PCRA hearing that he did not receive any text message
concerning Mr. Crampton’s failure to appear at the preliminary hearing. See
N.T. PCRA Hearing, 11/28/18, at 9, 11. Rather, Trooper Wolfe indicated he
received a call from Mr. Crampton from a phone with a blocked number, and
that he shared the information with Appellant’s trial attorneys. Id. at 9-10.
Further, counsel reasonably strategized that it was not worth the risk of calling
Trooper Wolfe to question him about the alleged text messages or phone call
when they had no proof of a text message of call, and no idea what Trooper
Wolfe’s testimony would have been. See N.T. PCRA Hearing, 11/20/18, at
51-52, 73-74.
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Appellant next claims that the PCRA court erred in denying relief on his
Brady claim. Our Supreme Court summarized the law relevant to the
adjudication of such claims as follows:
The law governing alleged Brady violations is well-settled.
In Brady, the United States Supreme Court held that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution. The Supreme Court
subsequently held that the duty to disclose such evidence is
applicable even if there has been no request by the accused, and
that the duty may encompass impeachment evidence as well as
directly exculpatory evidence. Furthermore, the prosecution's
Brady obligation extends to exculpatory evidence in the files of
police agencies of the same government bringing the prosecution.
On the question of materiality, the Court has noted that such
evidence is material if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different. The materiality inquiry is
not just a matter of determining whether, after discounting the
inculpatory evidence in light of the undisclosed evidence, the
remaining evidence is sufficient to support the jury's conclusions.
Rather, the question is whether the favorable evidence could
reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict. Thus, there are three
necessary components that demonstrate a violation of the Brady
strictures: the evidence was favorable to the accused, either
because it is exculpatory or because it impeaches; the evidence
was suppressed by the prosecution, either willfully or
inadvertently; and prejudice ensued.
Commonwealth v. Lambert, 884 A.2d 848, 853-54 (Pa. 2005) (cleaned up).
Appellant contends that the Commonwealth violated his Brady rights
by failing to disclose that it offered favorable treatment to Mr. Crampton and
Edward Luttrell in exchange for their testimony, and by neglecting to correct
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at trial their perjured denials of the existence of any deal with the prosecution.
Appellant’s brief at 44-51.
Specifically, Appellant notes that Mr. Crampton had twice asked for drug
charges against him to be dismissed in exchange for his testimony against
Appellant. Id. at 44. The Commonwealth dismissed the charges five days
after Mr. Crampton’s first request, reinstated them when he failed to appear
at the preliminary hearing to testify against Appellant, and nolle prossed them
again after Mr. Crampton testified at Appellant’s trial. Id. at 44-45. Yet, Mr.
Crampton testified at the trial that he had received no firm promises from the
Commonwealth, only that he would receive consideration for his cooperation.
Id. at 44. Appellant maintains that this circumstantial evidence of an
understanding, even if it had not been memorialized in a formal agreement,
would have had a profound impact on the outcome of the trial, as it impeached
the credibility of an essential witness. Id. at 48. Appellant’s averments and
arguments regarding the prosecutorial accommodations allegedly offered to
Mr. Luttrell are substantially similar. See id. at 48-51.
The PCRA court denied relief on the Brady claim upon finding that
Appellant failed to prove that there were any deals that the Commonwealth
failed to disclose:
In this case, both [Mr.] Crampton and [Mr.] Luttrell testified that
there was no deal; they were merely told that “consideration
would be given.” Plea documents reflect that there was no deal;
the District Attorney’s Office testified that there was no deal, and
therefore there was nothing to disclose. [Appellant] asserts that
because the [witnesses] were happy with their sentences that
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there must have been a deal. This court is satisfied that there is
no merit to this . . . claim.
Order Denying PCRA Petition, 3/8/19, at 5-6.
Again, the PCRA court’s ruling was based upon its credibility
determinations, and those are supported by the record.2 See N.T. PCRA
Hearing, 11/28/18, at 24-31, 39-41 (District Attorney David Sunday testifying
that there was no deal offered to either Mr. Crampton or Mr. Luttrell prior to
Appellant’s trial; the reason the charges were initially dismissed against Mr.
Crampton was to remove a state parole detainer to render him available to be
utilized in the investigation against Appellant, and the second dismissal was
based upon the time he had served and the risk of violence he faced remaining
in prison as a known “snitch”); N.T. PCRA Hearing, 11/29/18, at 5-8 (Chief
Deputy Public Defender Erin S. Thompson confirming testimony regarding the
lack of a deal with her client, Mr. Crampton, and the reasons for the dismissal
of charges). Therefore, we accept the fact that there was no deal to disclose.
Consequently, there was no Brady violation and no relief is due.
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2 Since there were no deals to disclose, the Commonwealth did not elicit
and/or fail to correct false testimony on the matter from the witnesses at trial.
Thus, Appellant’s argument based upon federal cases is inapposite. See
Appellant’s brief at 39-44 (citing Haskell v. Superintendent Greene SCI,
866 F.3d 139 (3d Cir. 2017), and Weiss v. Wetzel, 2:02-CV-01566, 2018
WL 895689 (W.D. Pa. Feb. 14, 2018), for the proposition that the prosecution
violated the defendants’ constitutional rights when the prosecutors failed to
correct witnesses’ testimony, known by the prosecutors to be false, that they
did not expect anything in exchange for testifying).
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Finally, Appellant contends that the PCRA court erred in denying relief
on his after-discovered evidence claim. To obtain a new trial based upon
after-discovered evidence, a PCRA petitioner must prove that the evidence in
question: “(1) was discovered after trial and could not have been obtained at
or prior to trial through reasonable diligence; (2) is not cumulative; (3) is not
being used solely to impeach credibility; and (4) would likely compel a
different verdict.” Commonwealth v. Hannibal, 156 A.3d 197, 221 (Pa.
2016). Moreover, the “[after-]discovered evidence must be producible and
admissible to entitle a petitioner to relief.” Id.
Appellant’s after-discovered evidence was the affidavit and testimony of
Eric Hamme, a man who at different times was incarcerated with Mr. Crampton
and with Appellant. The court summarized Mr. Hamme’s evidence as follows:
[Mr.] Hamme alleged that he met Michael Crampton while housed
in a pre-hearing confinement housing unit between October 29,
2018 and November 1, 2018. [Mr.] Crampton allegedly told [Mr.]
Hamme that he had befriended an “old rich guy,” learned the
details of the case, and then used the information to construct a
fictitious murder-for-hire plot in order to get out of prison.
Additionally, [Mr.] Crampton allegedly told [Mr.] Hamme that [the
District Attorney] promised to drop all of his charges as long as
he testified against [Appellant], but that if [Mr.] Crampton was
asked about it just to use the word “consider.”
PCRA Court Opinion, 11/22/19, at 2 (footnotes omitted).
While Appellant presents argument to this Court concerning how Mr.
Hamme’s testimony satisfied each of the four prongs of an after-discovered
evidence claim, he offers no argument to support the admissibility of Mr.
Hamme’s testimony. See Appellant’s brief at 53-62.
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The PCRA court determined that one of the reasons Hamme’s recitations
of Mr. Crampton’s out-of-court statements would not be admissible at trial for
the truth of the matter asserted was because they did not fall within a hearsay
exception. See PCRA Court Opinion, 11/22/19, at 4. We agree. Since Mr.
Crampton was not a party, his statements could not come in pursuant to
Pa.R.E. 803(25), and because he was not an unavailable witness, they were
not admissible statements against interest under Pa.R.E. 804(b)(3). With no
admissible after-discovered evidence, the claim was properly denied. 3 See
Hannibal, supra at 221.
The PCRA court also determined that, even if the evidence was
admissible and admitted, it was not likely to compel a different verdict. The
court explained:
[Mr.] Hamme came forward with the allegation that [Mr.
Crampton] made up the story only after [Mr. Hamme] met
[Appellant] and his girlfriend look into [Appellant’s] sizeable
assets. Additionally, the jury would have been made aware of
[Mr.] Hamme’s prior charges, two counts of intimidation of a
victim or witness, forgery, and conspiracy for counterfeiting. For
those reasons the jury would have found his testimony wholly
lacking in credibility and they would not have rendered a different
verdict.
PCRA Court Opinion, 11/22/19, at 6-7.
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3The PCRA court opined that the evidence may have been admissible if offered
not for its truth but solely to impeach Mr. Crampton. See PCRA Court Opinion,
11/22/19, at 4-5. However, if that were the case, the evidence would not
satisfy the third prong of the after-discovered evidence claim: that the
evidence “is not being used solely to impeach credibility.” Commonwealth
v. Hannibal, 156 A.3d 197, 221 (Pa. 2016).
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Yet again, we have no basis to disturb these findings because they are
supported by the record. See N.T. PCRA Hearing, 11/29/18, at 15-20 (Mr.
Crampton testifying that his trial testimony was truthful and Mr. Hamme’s
story was a fabrication based in part upon overhearing conversations that Mr.
Crampton had with the prisoner housed in between his cell and Mr. Hamme’s
cell). See also id. at 52-54, 59-75 (cross-examination of Mr. Hamme
concerning his criminal history and that he drafted his affidavit and presented
it to Appellant after Mr. Hamme’s paramour investigated Appellant’s history
and Mr. Hamme learned details about Appellant’s case and his financial
resources from Appellant while they were imprisoned together). On this basis
alone, Appellant’s claim was properly denied. See Commonwealth v. Diggs,
220 A.3d 1112, 1118 (Pa.Super. 2019) (affirming dismissal of after-
discovered evidence claim where the PCRA court determined that the new
evidence was “wholly lacking in credibility”). Appellant’s final issue fails on
this alternate basis as well.
For the reasons detailed above, Appellant has not satisfied his burden
of convincing this Court that the PCRA court erred and relief is due. See
Stansbury, supra at 161. Accordingly, we affirm the order denying
Appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2020
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