Com. v. Snyder, B.

J-S08002-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON ROSS SNYDER :
:
Appellant : No. 1392 MDA 2022
Appeal from the PCRA Order Entered September 7, 2022
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001171-2017
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: JULY 28, 2023
Appellant, Brandon Ross Snyder, appeals from the order entered on
September 7, 2022, dismissing a petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. Appellant fraudulently used a Lowe’s Home Improvement Center
(Lowe’s) credit card issued to Schuylkill County Child Development, Inc. (Child
Development) to make purchases totaling $3,546.29 between December 18,
2016 and December 20, 2016. Appellant signed the name “Robert Ditzler” on
each receipt. Robert Ditzler was a former employee of Child Development
who was fired by the organization on December 6, 2016. On December 22,
2016, when making another purchase, Appellant presented the Lowe’s credit
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* Retired Senior Judge assigned to the Superior Court.
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card issued to Child Development together with his driver’s license, which
identified him as Brandon Snyder. When the cashier and a loss prevention
officer at Lowe’s questioned Appellant about his authorization to use the
Lowe’s credit card he presented, Appellant left the store without the credit
card or his merchandise. An investigating police officer filed criminal charges
against Appellant after reviewing Lowe’s records for purchases made with the
credit card issued to Child Development. On October 25, 2018, following a
two-day trial, a jury convicted Appellant of access device fraud, 18 Pa.C.S.A.
§ 4106(a)(1)(ii). On November 27, 2018, the trial court sentenced Appellant
to 18 to 36 months of incarceration. Appellant filed a timely appeal on
December 27, 2018. This Court affirmed Appellant’s judgment of sentence in
an unpublished memorandum filed on September 9, 2019. See
Commonwealth v. Snyder, 2019 WL 4273798 (Pa. Super. 2019). Appellant
did not seek further review with the Pennsylvania Supreme Court.
On September 30, 2019, Appellant filed a pro se PCRA petition, which is
currently at issue herein, raising four claims of trial counsel ineffectiveness.1
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1 Appellant’s judgment of sentence did not become final until October 9, 2019,
or 30 days after this Court’s decision on direct appeal. See 42 Pa.C.S.A. §
9545(b)(3) (“[A] judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.”); see also Pa.R.A.P. 903(a) (Notice of appeal “shall be filed
within 30 days after the entry of the order from which the appeal was taken.”).
Because Appellant’s judgment of sentence had not become final, his
September 30, 2019 PCRA petition was premature. A premature PCRA
petition is a legal nullity and, therefore, subject to quashal. See
(Footnote Continued Next Page)
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After an evidentiary hearing on February 25, 2020, the PCRA court denied
relief by order entered on May 4, 2020. Thereafter, a prior panel of this Court
examined claims Appellant raised on appeal in a published opinion entered on
April 20, 2021. See Commonwealth v. Snyder, 250 A.3d 1253 (Pa. Super.
2021). The panel found no merit in Appellant’s claim that trial counsel was
ineffective for failing to file a motion alleging a violation of Appellant’s speedy
trial rights under Pa.R.Crim.P. 600 and affirmed the PCRA court’s denial of
relief on this claim. Id. at 1260. This Court, however, vacated “the portion
of the PCRA court's May 4, 2020 order denying relief as to Appellant's second,
third and fourth claims” and remanded the case for appointment of new PCRA
counsel. The panel granted leave for new counsel to file an amended PCRA
petition, if desired, and further ordered the PCRA court to conduct additional
evidentiary hearings, if necessary. Id. at 1263.
Upon remand, the PCRA court appointed new PCRA counsel to represent
Appellant and, thereafter, conducted an additional evidentiary hearing over
the course of three days, January 11, 2022, March 7, 2022, and May 9, 2022.
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Commonwealth v. Mojica, 242 A.3d 949, 953 (Pa. Super 2020). As we
discuss more fully, however, the PCRA court already examined the merits of
Appellant’s PCRA petition, and this Court took subsequent action. Hence, we
decline to quash this appeal at this juncture. Under these circumstances, we
conclude that it would be unjust to consider Appellant’s premature PCRA
petition a legal nullity. Id. at 954, citing Commonwealth v. Leatherby, 116
A.3d 73, 79 (Pa. Super. 2015) (holding that a defendant's pro se post-
sentence motion was not a legal nullity where there was significant confusion
and delay in appointing counsel, and an “administrative breakdown” led to the
filing of an untimely appeal).
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By opinion and order entered on September 7, 2022, the PCRA denied relief
and dismissed Appellant’s PCRA petition. This timely appeal resulted.2
On appeal, Appellant presents the following issues3 for our review.
I. Did the [PCRA c]ourt err in not finding [trial counsel] ineffective
for failing to object to the participation of Assistant District
Attorney [Michael J.] Stine?
II. Did the [PCRA c]ourt err in not finding [trial counsel] ineffective
for failing to cross[-]examine Officer [Bret] McGrath on missing
evidence?
Appellant’s Brief at 3 (numerals supplied; suggested answers omitted).
Both of Appellant’s issues implicate the effectiveness of trial counsel.
We adhere to the following standards:
Our standard of review from the denial of a PCRA petition is limited
to examining whether the PCRA court's determination is supported
by the evidence of record and whether it is free of legal error. The
PCRA court's credibility determinations, when supported by the
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2 On September 28, 2022, Appellant filed a timely notice of appeal. The PCRA
court directed Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) on October 5, 2022. Appellant complied
timely. From our review of the record, it appears that the PCRA court relied
upon its earlier decision issued on September 7, 2022 as its rationale for
denying relief.
3 We previously ordered Appellant’s first issue, as currently presented, to be
re-examined upon remand. Appellant has abandoned the two other issues we
previously remanded for further consideration; hence, they are now waived.
See Pa.R.A.P. 2116(a) (issues not presented in the appellant's statement of
questions involved portion of an appellate brief will not be considered); see
also Commonwealth v. Felder, 247 A.3d 14, 20 (Pa. Super. 2021) (citation
omitted) (“Also, an issue identified on appeal but not developed in the
appellant's brief is abandoned and, therefore, waived.”). Appellant added the
second issue currently presented on appeal to his amended PCRA petition prior
to the initial PCRA hearing held on January 11, 2022..
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record, are binding on this Court; however, we apply a de novo
standard of review to the PCRA court's legal conclusions.
We presume that the petitioner's counsel was effective. To
establish a claim of ineffective assistance of counsel, a defendant
must show, by a preponderance of the evidence, ineffective
assistance of counsel which, in the circumstances of the particular
case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.
The burden is on the [petitioner] to prove all three of the following
prongs: (1) the underlying claim is of arguable merit; (2) that
counsel had no reasonable strategic basis for his or her action or
inaction; and (3) but for the errors and omissions of counsel, there
is a reasonable probability that the outcome of the proceedings
would have been different. Moreover, a failure to satisfy any
prong of the ineffectiveness test requires rejection of the claim of
ineffectiveness.
The prejudice standard for an ineffectiveness claim is a higher
standard than the harmless error analysis typically applied when
assessing allegations of trial court error. Instead, a petitioner
must prove actual prejudice, which our Supreme Court has
defined as follows:
A reasonable probability that, but for counsel's lapse, the
result of the proceeding would have been different. In
making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Moreover, a verdict or
conclusion only weakly supported by the record is more
likely to have been affected by errors than one with
overwhelming record support. Ultimately, a reviewing court
must question the reliability of the proceedings and ask
whether the result of the particular proceeding was
unreliable because of a breakdown in the adversarial
process that our system counts on to produce just results.
Commonwealth v. Campbell, 260 A.3d 272, 277–278 (Pa. Super. 2021)
(internal citations, quotations, and brackets omitted).
In his first issue presented, Appellant claims that trial counsel was
ineffective for failing to object when Assistant District Attorney, Michael J.
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Stine, Esquire (Attorney Stine) prosecuted Appellant’s trial because Attorney
Stine originally supervised the public defender initially appointed to represent
Appellant at the preliminary hearing. Appellant’s Brief at 10-16. More
specifically, Appellant maintains:
At the time of the preliminary hearing [on June 20, 2017],
[Appellant] was represented by Paul Domalakes, Esq. [(Attorney
Domalakes).] Attorney Domalakes was a member of the Schuykill
County Public Defender’s Office. […] During this time, the Chief
Public Defender was Attorney Michael J. Stine. As the Chief Public
Defender, Attorney Stine had oversight of Attorney Domalakes.
There was nothing to stop [assistant public defenders such as
Attorney Domalakes] from coming to Attorney Stine for assistance
or help.
Id. at 4-5. In the interim before trial, however, Attorney “Stine was hired as
the First Assistant District Attorney on January 8, 2018.” PCRA Court Opinion,
5/4/2020, at 5. Thereafter, upon our review of the record, by order entered
on March 23, 2018, the trial court appointed private counsel, Robert Reedy,
Esquire to represent Appellant at trial on October 24, 2018. As such,
Appellant asserts:
When Attorney Stine became the first assistant district attorney,
any case that he handled directly as the Chief Public Defender was
conflicted to the Attorney General’s Office, who picked up the
prosecution of those cases. Any case that he was not involved in,
but one of the other Assistant District Attorneys was involved with,
those cases were not sent to the Attorney General. Attorney Stine
was screened out of those cases by the District Attorney’s Office,
so that he was not permitted to participate in any way in the cases
that involved Public Defenders.
During the October 2018 trial term, Assistant District Attorney
Stine was picking up the slack in the office and trying cases. […]
At that point in time, Attorney Stine had only been in the [District
Attorney’s] Office about ten months, so whenever he had to
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handle a case, he was looking for cases where private counsel was
involved. When it came to [Appellant’s] matter, [Attorney Stine]
looked at [the case] and said, here is one that [he could] handle
because Attorney Reedy [was] private[ly retained, even though]
this [case] would have fallen under one of the types of cases that
Attorney Stine normally would not have overseen or participated
in as a prosecutor.
Appellant’s Brief at 5-6 (record citations omitted). “Because Attorney Stine
had supervisory authority over [Appellant’s] initial counsel,” Appellant asserts,
“this case generates the appearance of impropriety and causes an actual risk
that confidential information could have been shared.” Id. at 15. Hence,
Appellant concludes that trial counsel was ineffective because, “Attorney
Reedy should have objected to Attorney Stine’s participation in the
prosecution, and [Appellant] should be granted a new trial with an
independent prosecutor.” Id. at 16.
On this issue, our Supreme Court has “opted for [an] objective and
flexible” standard:
which requires a determination on a case-by-case basis of
whether the acts of a public prosecutor have actually tainted the
proceedings so as to require a new trial with a special prosecutor
appointed rather than an absolute grant of one at any allegation
of the “appearance of impropriety.” In [such a] situation[], where
the [d]efense [a]ttorney enters the case at the post-trial level and
then subsequently joins the staff of the District Attorney's office,
[our Supreme Court] require[s] that a defendant show an actual
impropriety in order to establish the requisite prejudice to a
defendant. This procedure will ensure both the efficient and
economical operation of the District Attorney's Office during
periods where new staff members have been appointed while at
the same time protecting a defendant's right to a fair trial free
from any actual impropriety.
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Commonwealth v. Harris, 460 A.2d 747, 749 (Pa. 1983) (emphasis in
original).
On this issue, the PCRA court determined that Appellant did not suffer
actual prejudice that resulted from trial counsel’s alleged ineffectiveness.
PCRA Court Opinion, 5/4/2020, at 5. First, the PCRA court acknowledged that
Attorney Stine did not personally represent Appellant at any time prior to the
prosecution. Id. at 6. Moreover, the PCRA court credited trial counsel’s
testimony that he “was not aware of any conflict with Attorney Stine having
been Chief Public Defender at the time of the filing of the [c]omplaint.” Id.
at 5-6. Upon review, Attorney Stine testified that although he was technically
supervising Attorney Domalakes at the time of Appellant’s preliminary
hearing, Attorney Domalakes had 25 years of experience, the case involved
“a commonplace offense,” there was “no reason [for Attorney Stine] to get
involved,” and Attorney Stine never discussed the facts or strategy of the case
with Attorney Domalakes. N.T., 1/11/2022, at 53-54. Even after Attorney
Stine began working for the District Attorney’s Office, he had no knowledge of
Appellant prior to being assigned the case. Id. at 54-55. The PCRA court
also found “Appellant’s testimony unreliable and not worthy of belief because
of a lengthy record of crimen falsi convictions beginning [in] January [] 2008.”
PCRA Court Opinion, 5/4/2020, at 6.
The record supports the PCRA court’s decision, and we will not usurp
the PCRA court’s credibility determinations. Although Appellant claims that
there was the potential for impropriety and a risk that confidential information
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could have been shared, there is no evidence to suggest that there was
improper conduct between trial counsel representing Appellant at the
preliminary hearing and Attorney Stine in his capacity as assistant district
attorney for the Commonwealth. As such, Appellant has failed to show that
he was prejudiced. Accordingly, we reject Appellant’s first claim that trial
counsel was ineffective.
In his second issue presented, Appellant claims that trial counsel was
ineffective for failing to adequately cross-examine the investigating officer,
Officer Bret McGrath, regarding alleged missing evidence. Appellant also
claims that trial counsel should have requested a missing evidence jury
instruction. See Appellant’s Brief at 16-19. Appellant asserts that Robert
Ditzler, “the authorized user of the [Lowe’s credit] card in question[,] did not
testify at either the preliminary hearing or the jury trial[.]” Id. at 17.
Accordingly, Appellant argues:
At the [j]ury [t]rial[,] Officer M[c]Grath testified that he had
interviewed and had a written statement from Robert Ditzler.
Officer M[c]Grath also stated that he provided that statement to
Mr. Ditzler at the preliminary hearing. However, Mr. Ditzler did
not participate at the preliminary hearing. [] At the PCRA hearing,
Attorney Reedy could not recall if a preliminary hearing transcript
even existed. [Robert Ditzler’s] written statement was never
provided to the [d]efense.
* * *
At trial, Attorney Reedy did not inquire as to how Officer M[c]Grath
could have given Mr. Ditzler a copy of his statement at the
preliminary hearing when there was no record of Mr. Ditzler
attending the preliminary hearing. It appears from the record the
police lost this evidence and [did not] adequately explain the
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disappearance. [….] Since this evidence was solely in the
possession of the Commonwealth, trial counsel should have
elicited these facts at trial and requested a missing evidence [jury]
instruction. Since this did not occur, [Appellant] has suffered
prejudice in the proceeding. Therefore, the court should find that
Attorney Reedy was ineffective and [Appellant] should be granted
a new trial.
Id. at 18-19 (record citations omitted).
In order to show trial counsel ineffectiveness for failure to request a jury
instruction, a petitioner must prove he was entitled to the instruction based
on the evidence presented at trial. Commonwealth v. Spotz, 18 A.3d 244,
299-300 (Pa. 2011). Pursuant to Pennsylvania Suggested Standard Criminal
Jury Instruction 3.21B, “the jury is allowed to draw a common-sense inference
that [an] item would have been evidence unfavorable to that party” when
“there is no satisfactory explanation for [that] party's failure to produce an
item,” and (1) “the item is available to that party and not to the other”; (2)
“it appears the item contains or shows special information material to the
issue”; and (3) “the item would not be merely cumulative evidence.” Pa.SSJI
(Crim) § 3.21B.
Upon our review, we conclude there is no merit to Appellant’s second
appellate claim. At trial, Officer McGrath testified that he prepared a written
statement taken from Robert Ditzler. N.T. 10/25/2018, at 166. Officer
McGrath further testified that he gave the written statement to Mr. Ditzler at
the preliminary hearing for his review, but Mr. Ditzler did not testify and,
instead, absconded with the written statement, which has been missing ever
since. Id. at 166-167. As such, the written statement was never adopted or
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signed by Mr. Ditzler, was never proffered at trial by the Commonwealth, and
was not available to any party. Hence, there was a satisfactory explanation
for Officer McGrath’s failure to produce it.
Moreover, Appellant does not set forth or proffer the substance of Mr.
Ditzler’s written statement and the record demonstrates that Mr. Ditzler never
adopted the writing as an accurate reflection of his version of events. As such,
we cannot decipher whether the statement revealed special information
material to Appellant’s case and/or would not be merely cumulative evidence.4
Upon review of the record, we note the following. A cashier at Lowe’s
testified that Appellant presented her with a credit card from Child
Development, together with his photo identification card with his name on it.
N.T., 10/24/2018, at 59-60. The cashier called Lowe’s credit center to get the
list of valid names authorized to use the card and Appellant was not on that
list. Id. at 60. Appellant left the store without the credit card or merchandise.
Id. at 61-62. The cashier identified Appellant at trial. Id. at 62. The financial
director at Child Development testified that Robert Ditzler, a former
maintenance worker at the organization, had been authorized to make
purchases with the credit card at issue. Id. at 69-70. Mr. Ditzler, however,
was terminated on December 6, 2016. Id. at 70. Appellant was never an
employee of Child Development. Id. at 69. A loss prevention officer from
Lowe’s testified that he reviewed signed sales receipts and captured still
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4 In fact, since Mr. Ditzler did not sign or otherwise adopt the statement, the
writing is nothing more than hearsay, not subject to exception.
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photographs from store registers to determine there were multiple prior sales
where Appellant signed Robert Ditzler’s name and used the Lowe’s credit card
issued to Child Development. Id. at 110-140. When Appellant was denied
the final sale, the loss prevention officer took a photograph of Appellant, using
his cellular telephone, which was shown to the jury. Id. at 112-113. Simply
put, Appellant has not explained whether or how Mr. Ditzler’s written
statement contained special or material information or was not merely
cumulative of the other evidence presented at trial as set forth above. The
evidence establishing Appellant’s guilt was overwhelming; hence, we discern
no prejudice in trial counsel’s examination of Officer McGrath or in his failure
to request a missing evidence instruction. For all the foregoing reasons, we
conclude that there is no merit to Appellant’s final appellate claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
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