Com. v. Humphrey, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDWARD LEONARD HUMPHREY, No. 1525 EDA 2018
Appellant
Appeal from the PCRA Order Entered April 30, 2018,
in the Court of Common Pleas of Northampton County
Criminal Division at No. CP-48-CR-0002906-2013
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 15, 2019
Edward Leonard Humphrey appeals from the April 30, 2018 order
entered in the Court of Common Pleas of Northampton County denying his
petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA court set forth the following procedural history:
[Appellant] was charged with Home Improvement
Fraud,[Footnote 1] Theft by Deception,[Footnote 2]
and Receiving Stolen Property[Footnote 3] based on
allegations that through his company, Total
Remodeling of Northeast Pennsylvania, LLC,
[appellant] failed to complete a renovation for the
Victim, Leander Gray ("Gray"), and failed to refund
money paid for the incomplete project. On January 7,
2014, following a two-day jury trial, [appellant] was
convicted of Home Improvement Fraud and Theft by
Deception. However, the trial court dismissed the
charge of Receiving Stolen Property following the
conclusion of the Commonwealth's case.
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[Footnote 1] 73 P.S. § 517.8(a)(2)[.]
[Footnote 2] 18 Pa.C.S.A. § 3922(a)(1)[.]
[Footnote 3] 18 Pa.C.S.A. § 3925[.]
On February 7, 2014, [appellant] was sentenced to an
aggregate of thirty-two (32) to sixty-four (64)
months['] incarceration followed by a period of four
(4) years of probation. [Appellant] was further
ordered to pay restitution in the amount of
Twenty-five Thousand Seven Hundred Seven dollars
and Sixty-two cents ($25,707.62). On February 12,
2014, [appellant], through Attorney Yannuzzi, filed a
Petition for Reconsideration of Sentence. The Court
subsequently denied [appellant's] Petition and
[appellant] appealed to the Superior Court of
Pennsylvania. In a November 6, 2015 Memorandum
Opinion issued by the Honorable Sallie Updyke Mundy,
the Superior Court affirmed this Court's judgment of
sentence. [See Commonwealth v. Humphrey,
No. 1661 EDA 2015, (unpublished memorandum)
(Pa.Super. filed November 6, 2015).]
[Appellant], through court -appointed counsel, filed a
Post -Conviction Relief Act petition ("PCRA petition")
on February 19, 2016. [Appellant] subsequently hired
private counsel for his PCRA petition. Accordingly,
[appellant's] counsel filed an Amended Petition
Pursuant to the Post Conviction Relief Act on
March 24, 2017 alleging ineffective assistance of
counsel and after discovered evidence. On
September 26, 2017, the parties appeared before the
Court for a PCRA Hearing. The parties were unable to
complete the hearing on that date and, therefore,
ordered to return on December 6, 2017 for additional
testimony. Prior to the December 6, 2017 hearing
date, [appellant] filed a Supplemental Amended PCRA
Petition Pursuant to the Post Conviction Relief Act on
December 4, 2017. The parties appeared before the
Court on December 6, 2017. As the testimony did not
conclude on that date, the parties were scheduled to
appear for an additional hearing on February 1,
201[8]. At the request of the Court, [appellant] filed
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a PCRA Hearing Memorandum prior to the February 1,
201[8] hearing. On February 1, 201[8], the parties
appeared before the Court and concluded the PCRA
Hearing.
On April 2, 2018, [appellant] filed a Post Hearing PCRA
Memorandum. On April 10, 2018, the Commonwealth
filed a Brief in Opposition of [appellant's] Petition for
Post -Conviction Collateral Relief. [Appellant] then
filed a Reply Memorandum in Further Support of His
Request for PCRA Relief on April 19, 2018.
PCRA court opinion, 4/30/18 at 1-3 (footnote 4 omitted).
The PCRA court denied the PCRA petition on April 30, 2018. Appellant
filed a timely notice of appeal. The PCRA court ordered appellant to file a
concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant timely complied. On June 8, 2018, the PCRA
court subsequently filed a "statement pursuant to [Pa.R.A.P.] 1925(a)"
wherein it relied on the April 30, 2018 opinion as support for denying the PCRA
petition.'
Appellant raises the following issues for our review:
1. Did the PCRA court err when it denied
[appellant's] request for a new trial based on
ineffective assistance of counsel?
2. Did the PCRA court err when it denied
[appellant's] request for a new trial based on
after discovered evidence?
' We note that the April 30, 2018 PCRA court opinion and order denying the
PCRA petition were issued by the Honorable Emil Giordano. After
Judge Giordano's retirement, the case was reassigned, and the
Honorable Paula A. Roscioli issued the June 8, 2018 "statement pursuant to
[Pa.R.A.P.] 1925(a)."
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Appellant's brief at 2.
Proper appellate review of a PCRA court's dismissal of a PCRA petition
is limited to the examination of "whether the PCRA court's determination is
supported by the record and free of legal error." Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). We review the appeal
"in the light most favorable to the prevailing party at the PCRA level[,]" and
"[o]ur review is limited to the findings of the PCRA court and the evidence of
record." Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)
(citations omitted). "The PCRA court's findings will not be disturbed unless
there is no support for the findings in the certified record." Commonwealth
v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014) (citations omitted). "This [c]ourt
grants great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a contrary
holding." Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002)
(citation omitted).
In his first issue, appellant claims trial counsel was ineffective for failing
to call a potential witness and "for failing to introduce several pieces of
evidence that would have rebutted the Commonwealth's case and would have
supported the defense." (Appellant's brief at 10-20.)
To be eligible for relief based on a claim of ineffective
assistance of counsel, a PCRA petitioner must
demonstrate, by a preponderance of the evidence,
that (1) the underlying claim is of arguable merit;
(2) no reasonable basis existed for counsel's action or
omission; and (3) there is a reasonable probability
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that the result of the proceeding would have been
different absent such error. Commonwealth v.
Steele, 961 A.2d 786, 796 (Pa. 2008). With regard
to the second, i.e., the "reasonable basis" prong, this
Court will conclude that counsel's chosen strategy
lacked a reasonable basis only if the appellant proves
that "an alternative not chosen offered a potential for
success substantially greater than the course actually
pursued." Commonwealth v. Williams, 899 A.2d
1060, 1064 2006) (citation omitted).
(Pa. To
establish the third prong, i.e., prejudice, the appellant
must show that there is a reasonable probability that
the outcome of the proceedings would have been
different, but for counsel's action or inaction.
Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa.
2008).
Commonwealth v. Matias, 63 A.3d 807, 810 (Pa.Super. 2013), appeal
denied, 74 A.3d 1030 (Pa. 2013).
"A failure to call a witness is not per se ineffective assistance of counsel
for such decision usually involves matters of trial strategy." Id. at 811
(citation omitted). In order to establish ineffectiveness for failing to call a
potential witness to testify at trial, appellant must prove that:
(1) the witness existed; (2) the witness was available
to testify for the defense; (3) counsel knew of, or
should have known of, the existence of the witness;
(4) the witness was willing to testify for the defense;
and (5) the absence of the testimony of the witness
was so prejudicial as to have denied the defendant a
fair trial.
Id. at 810-811 (citations omitted). In order to establish prejudice, appellant
"must show how the [potential witness'] testimony would have been beneficial
under the circumstances of the case" and "helpful to the defense" such that
the absence of the testimony denied appellant a fair trial. Id. at 811 (citation
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omitted); see also Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa.
2005) (citation omitted), cert. denied, 549 U.S. 848 (2006) (holding that
"[t]rial counsel's failure to call a [potential witness] does not constitute
ineffective assistance without some showing that the [potential] witness'
testimony would have been beneficial or helpful in establishing the asserted
defense.").
Here, appellant claims that trial counsel was ineffective for failing to call
Christopher Bickham ("Bickham"), who was the lead carpenter for appellant's
company at the time of the theft and fraud, as a witness at trial. (Appellant's
brief at 10-13; see also notes of testimony, 2/1/18 at 5.) Appellant claims
that Bickham would have testified that appellant did not instruct Gray to give
Bickham a check for $9,842.93, which would have refuted Gray's trial
testimony. (Appellant's brief at 11.)
The PCRA court found that although appellant proved that Bickham
existed, appellant failed to establish that Bickham was available to testify for
appellant at trial. (PCRA court opinion, 4/30/18 at 5.) The PCRA hearing
transcript reflects that Bickham testified that he was not aware that appellant
was charged with home improvement fraud. (Notes of testimony, 2/1/18 at
7-8.) Bickham also testified that after the company dissolved, he moved back
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to New York State.2 (Id. at 8.) Bickham further testified that the first time
appellant contacted him was after appellant had been convicted of the
before -mentioned crimes, and the purpose of the contact was to ask if
Bickham would testify on behalf of appellant at the PCRA hearing. (Id. at
7-10.) Trial counsel testified that he had no recollection of discussing Bickham
with appellant. (Id. at 70, 81-82.) The record supports the PCRA court's
determination that appellant failed to demonstrate that Bickham was available
to testify at trial.
The PCRA court also determined that appellant failed to establish that
the absence of Bickham's testimony was so prejudicial as to have denied
appellant a fair trial. (PCRA court opinion, 4/30/18 at 5.) We agree.
Appellant's argument is that Bickham's testimony would have
"directly refute[d]" Gray's testimony. (Appellant's brief at 11.) Conflicting
testimony of Gray and Bickham as to whether appellant instructed Gray to
give the check to Bickham would have raised a credibility determination, but
appellant fails to demonstrate how the failure to call Bickham as a witness was
so prejudicial as to deny him a fair trial. Consequently, we discern no abuse
of discretion.
2 Bickham testified that he did not recall when the company was dissolved.
(Notes of testimony, 2/1/18 at 8.) Appellant, however, testified that the
company was dissolved on September 2, 2011. (Id. at 43, 46, 60; see also
PCRA Hearing Exhibit U - "Certificate of Amendment -Domestic," 9/2/11.)
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Appellant next claims that trial "[c]ounsel was ineffective for failing to
introduce several pieces of evidence that would have rebutted the
Commonwealth's case and would have supported the defense." (Id. at 13.)
At the PCRA hearing, the Commonwealth utilized the trial transcript to
question trial counsel concerning various documents that were admitted into
evidence at trial, as well as specific testimony of witnesses on
cross-examination with respect to these pieces of evidence. (Notes of
testimony, 2/1/18 at 80-84.)
As the PCRA court explained:
With regard to the Wells Fargo bank statements, KNBT
bank statements and account opening information,
and PayPal records, all were admitted into evidence at
trial by the Commonwealth. Further, the testimony of
James Reilly ("Reilly") confirmed that he opened both
the Wells Fargo and PayPal account under the
direction of [appellant]. Contrary to [appellant's]
argument, both the July and August 2011 Wells Fargo
bank statements were admitted into evidence at trial
by the Commonwealth. Additionally, Jennifer Tillema
("Tillema") testified to opening the National Penn bank
account in her name pursuant to [appellant's]
direction. As each of these documents had previously
been admitted, there was no reasonable basis for
[trial counsel] to separately present them at trial.
Further, with regard to the American Express bank
and credit card statements, the record establishes
that both [appellant] and Reilly had American Express
cards
PCRA court opinion, 4/30/18 at 4 (citation to notes of testimony omitted).
The record supports the trial court's conclusion that appellant's
ineffectiveness claim for failure to introduce certain documents into evidence
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lacked arguable merit and that appellant failed to establish prejudice.
Therefore, we discern no abuse of discretion.
Appellant finally complains that the PCRA court erred in denying his
request for a new trial on the basis of after -discovered evidence. (Appellant's
brief at 20-31.)
In order for appellant to be granted a new trial based upon
after -discovered evidence, he must show that the evidence:
1) has been discovered after the trial and could not
have been obtained at or prior to the conclusion
of the trial by the exercise of reasonable
diligence;
2) is not merely corroborative or cumulative;
3) will not be used solely to impeach the credibility
of a witness; and
4) is of such nature and character that a different
verdict will likely result if a new trial is granted.
Commonwealth v. Randolph, 873 A.2d 1277, 1283 (Pa. 2005) (citation
omitted), cert. denied, 547 U.S. 1058 (2006).
The test is conjunctive; the [appellant] must show by
a preponderance of the evidence that each of these
factors has been met in order for a new trial to be
warranted. Further, when reviewing the decision to
grant or deny a new trial on the basis of
after -discovered evidence, an appellate court is to
determine whether the PCRA court committed an
abuse of discretion or error of law that controlled the
outcome of the case.
Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa.Super. 2012) (citations
omitted; brackets removed). "Discretion is abused when the course pursued
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represents not merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill will."
Commonwealth v. Padillas, 997 A.2d 356, 361 (Pa.Super. 2010) (citation
omitted). Appellant has the burden, at the evidentiary hearing, to establish
that the document satisfies the after -discovered evidence requirements to
warrant a new trial. See Commonwealth v. Rivera, 939 A.2d 355, 359
(Pa.Super. 2007), appeal denied, 939 A.2d 355 (Pa. 2008).
In his brief, appellant baldly asserts that he "obtained several
documents after trial that satisfy [the after -discovered evidence] test" and
that he is, therefore, entitled to a new trial. (Appellant's brief at 20.)
As the PCRA court explained:
[appellant] argues that following trial, he discovered
the original police reports had been altered.
Specifically, [appellant] argues that a $15,000
payment was altered to reflect a $5,000 payment and
that the original contract price of $44,842.93 was
adjusted to $34,842.93. However, the evidence
presented by [appellant] in this regard fails to
sufficiently meet the standards necessary to warrant
relief based on after -discovered evidence. Notably,
[appellant] has failed to establish a purpose this
evidence might serve aside from the impeachment of
either or both Gray and/or Trooper Michael Hodgskin
("Trooper Hodgskin"). Moreover, [appellant] has
further failed to establish that the nature and
character of this evidence is such that it would likely
alter the outcome of the trial.
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[Appellant] further argues the Commonwealth
committed a Brady[3] violation. Specifically,
[appellant] contends the Commonwealth withheld
exculpatory evidence in the form of KNBT bank
statements showing that Tillema could have refunded
Gray prior to dissolving the company. However, the
record establishes that the aforementioned bank
statements were admitted into evidence at trial by the
Commonwealth. Accordingly, [appellant] cannot now
claim he lacked access to these bank records prior to
or at the time of trial. Therefore, [appellant's]
after -discovered evidence claim in this regard must
fail.
[Appellant] next argues other individuals, not
[appellant], owned and were in control of the
company. In reaching this conclusion, [appellant]
references documents he obtained after trial, upon
subpoena of the Department of State, purporting to
show that Reilly submitted a forged document listing
[appellant] as the owner of the company. [Appellant]
further references a Pennsylvania State Police
Supplemental Investigation Report he asserts
establishes that Reilly, not [appellant], removed
himself from the company. However, [appellant] fails
to present sufficient evidence establishing the
document was in fact forged or altered. Additionally,
[appellant] incorrectly asserts that Reilly removed
himself from the company. Rather, Reilly states that
he did not want to be part of the business and that
everything was shut down. Additionally, [appellant]
fails to establish that these documents could not be
obtained prior to the conclusion of trial.
[Appellant] further argues that following trial he
received documents showing that Reilly cancelled the
company's insurance upon claiming he was the license
holder in August 15, 2011 and that Tillema purchased
insurance for the company on August 18, 2011.
However, [appellant] has failed to establish that these
documents constitute after -discovered evidence as
the information contained therein was testified to at
3 Brady v. Maryland, 373 U.S. 83 (1963).
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trial. Notably, Tillema testified to this information at
trial. Tillema specifically stated that she put the
company in her name on August 10, 2011 by filing an
amendment of ownership of the company.
Additionally, she further testified to purchasing
insurance as the company was not properly insured at
the time. Accordingly, [appellant] has failed to
establish that the documents could not have been
obtained by reasonable diligence prior to the close of
trial or that they amount to anything more than
corroborative or cumulative evidence.
PCRA court opinion, 4/30/18 at 5-7 (footnote 5 and citations to notes of
testimony omitted).
The record supports the PCRA court's conclusion that appellant failed to
demonstrate that the documents were not being used solely for impeachment,
that the documents could not have been obtained at or prior to the conclusion
of trial by reasonable diligence, that the documents were not merely
corroborative or cumulative, and that the documents would have resulted in
a different verdict. Therefore, we discern no abuse of discretion or error of
law.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 7/15/19
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