Com. v. Gardner, L.

J-S11003-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEO A. GARDNER :
:
Appellant : No. 2259 EDA 2022
Appeal from the PCRA Order Entered August 4, 2022
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001172-2017
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 07, 2023
Appellant, Leo A. Gardner, appeals from the order entered on August 4,
2022, dismissing his first petition filed pursuant to the Post-Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously set forth the facts of this case as follows:
The Commonwealth charged Appellant with, inter alia, [attempted
murder, aggravated assault, terroristic threats, and simple
assault1] following his violent attack of Brittany Seitz. Appellant's
two-day jury trial commenced on June 19, 2018.
At trial, the Commonwealth presented the testimony of a number
of witnesses including eyewitnesses Hericson Torres, Brandon
Caron, and State Troopers Anthony Paciotti and Ian MacMillan.
Appellant presented the testimony of an investigator, Joseph
Alercia, and also testified on his own behalf, asserting that he
[acted] in self-defense.
____________________________________________
1 18 Pa.C.S.A. §§ 901(a)—2501; 2702(a)(1); 2706(a)(1); and 2701(a)(3),
respectively.
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We glean[ed] the following relevant facts from our review of the
record, including the trial court's Pa.R.A.P. 1925(a) [o]pinion.
Appellant and Brittany Seitz spent April 26, 2017, together
ingesting drugs, including methamphetamine, and driving around
Monroe County. Late that evening, or in the early hours of April
27, 2017, Ms. Seitz pulled her car over to the side of the road,
whereupon she and Appellant engaged in a physical altercation.
Hericson Torres's testimony revealed that, in the early morning
hours of April 27, 2017, his wife woke him after she heard a female
screaming outside their home. Mr. Torres testified that he walked
outside and heard a female voice screaming for help. At around
3:30 [a.m.], he went to investigate the voice, bringing with him a
flashlight, a tee-ball bat, and a knife.
Brandon Caron testified that he also left his home in the early
hours of that morning to investigate after hearing a female voice
yell, “Help. He's killing me.” He testified that when he arrived he
found Appellant on top of Ms. Seitz, dragging her into the woods,
biting her, with his fingers in her eyes. Ms. Seitz was lifeless, and
Mr. Caron testified that he believed she was dead. Mr. Caron
further testified that he yelled at Appellant to stop, and Appellant
responded by stating something akin to “get out of here. I
stabbed her in the throat ... I slit her throat ... get out of here or
I'll kill you too.”
Mr. Torres testified that, when he arrived on the scene, Mr. Caron
reported that Appellant was eating Ms. Seitz, and that, due to the
darkness, Mr. Torres thought Appellant may actually have been a
bear. Mr. Torres also testified that he thought Ms. Seitz was dead.
The testimony indicated that Mr. Torres and Mr. Caron attempted
to stop Appellant by hitting, pushing, and kicking him. Their
efforts were, however, unsuccessful. Instead, Appellant warned
them to mind their own business and threatened to kill them.
At approximately 4:00 [a.m.], Troopers Anthony Paciotti and Ian
McMillan arrived at the scene. They observed Appellant continue
to attack Ms. Seitz while she lay lifeless on the ground. Trooper
Paciotti saw Appellant on his hands and knees on top of Ms. Seitz,
with his face in contact with Ms. Seitz's face. Appellant refused
Trooper Paciotti's command to get off Ms. Seitz. Trooper Paciotti
proceeded to kick Appellant off Ms. Seitz. Trooper Paciotti
observed that Appellant was [incoherent and] naked except for
his underwear[.]
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Once they removed Ms. Seitz from the scene, the troopers
observed that Appellant had partially amputated Ms. Seitz's nose,
and she had sustained multiple bruises and bites. Both of her
eyes were swollen shut. They transported her to the hospital.
Troopers also took Appellant to the hospital where doctors treated
him for a collapsed lung, head trauma, broken bones, and multiple
stab wounds. Lab tests revealed that Appellant had toxic levels
of methamphetamine in his blood.
In his case-in-chief, Appellant claimed that he had been acting in
self-defense.
Commonwealth v. Gardner, 2019 WL 3801485, at *1–2 (Pa. Super. 2019)
(unpublished memorandum) (original footnotes and record citations omitted).
On June 21, 2018, the jury convicted Appellant of the aforementioned
crimes. On August 16, 2018, the trial court sentenced Appellant to an
aggregate term of 12 ½ to 25 years of imprisonment. We affirmed Appellant’s
conviction in an unpublished memorandum on August 13, 2019. See
Commonwealth v. Gardner, 2019 WL 3801485 (Pa. Super. 2019)
(unpublished memorandum). By per curiam order entered on June 1, 2020,
the Pennsylvania Supreme Court denied further review. See
Commonwealth v. Gardner, 235 A.3d 271 (Pa. 2020) (per curiam).
On October 19, 2020, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel who filed an amended PCRA petition on April
19, 2021. On April 8, 2022, the PCRA court held a hearing regarding
allegations that trial counsel was ineffective for: (1) not calling several
witnesses to testify at trial, including the victim Brittany Seitz, as well as Ray
Ianuale and Dennis Blanchette, (2) improperly supervising a private
investigator hired to procure the missing witnesses and failing to call the
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investigator as a trial witness, (3) failing to secure a medical expert, (4)
inappropriately calling several character witnesses who subsequently divulged
Appellant’s prior criminal history on cross-examination, and (5) failing to
inform Appellant of a potential conflict of interest. Only Appellant and trial
counsel testified at the PCRA hearing. By order and opinion entered on August
4, 2022, the PCRA court denied relief. This timely appeal resulted. 2
On appeal, Appellant claims the PCRA court erred or abused its
discretion in dismissing his PCRA petition because trial counsel was ineffective
for:
1. Failing to subpoena and call several vital witnesses to testify at
trial, including, Brittany Seitz, Raymond Ianuale, and Dennis
Blanchette[;]
2. Failure to supervise investigator Joseph Chillari and to
subpoena him to testify at trial[;]
3. Failing to consult with a medical expert regarding the injuries
sustained by [] Appellant during the incident in question[;]
4. Calling multiple character witnesses at trial who were
cross-examined about Appellant’s criminal history[;]
5. Failing to inform Appellant of a potential conflict regarding her
representation of the victim, Brittany Seitz on an unrelated
matter[;]
Appellant’s Brief at 4-5.
____________________________________________
2 Counsel for Appellant filed a notice of appeal on September 2, 2022. On
September 7, 2022, the PCRA court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Counsel for Appellant complied timely on September 28,
2022. On September 28, 2022, the PCRA court issued a statement in lieu of
an opinion pursuant to Pa.R.A.P. 1925(a), relying upon its earlier opinion filed
on August 4, 2022, as rationale for its decision to deny relief.
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All of Appellant’s claims allege that trial counsel was ineffective. As
such, we employ the following standards of appellate review:
Our standard of review from the grant or denial of post-conviction
relief 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. To prevail on ineffective assistance of
counsel claims, the PCRA petitioner must plead and prove, by a
preponderance of the evidence, three elements: (1) the
underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered prejudice because of counsel's action or inaction. The
law presumes counsel was effective and PCRA petitioners bear the
burden of pleading and proving each of the three factors by a
preponderance of the evidence. A claim of ineffectiveness will be
denied if the petitioner's evidence fails to meet any of these
prongs.
Commonwealth v. Krock, 282 A.3d 1132, 1137 (Pa. Super. 2022) (internal
citations, quotations, ellipses, and brackets omitted). An appellate court
“view[s] the evidence of record in a light most favorable to the
Commonwealth, as the prevailing party below[, and is] bound by the PCRA
court's credibility determinations, unless those determinations are not
supported by the record[.]” Commonwealth v. Flor, 259 A.3d 891, 902 (Pa.
2021) (citation omitted). We review the PCRA court's legal conclusions de
novo. Id. (citation omitted).
In his first issue presented, Appellant contends that trial counsel was
ineffective for failing to call Brittany Seitz, Raymond Ianuale, and Dennis
Blanchette to testify at trial. Appellant’s Brief at 10-15. Regarding Brittany
Seitz, Appellant asserts that “Appellant and [Seitz] were the only two (2)
people present for the entire altercation in question, and the fact that the
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victim was not called to testify was so prejudicial to [Appellant] that he was
not given a fair trial.” Id. at 12. Next, Appellant claims that trial counsel
was ineffective for failing to call Raymond Ianuale to testify at trial. Id. at
13-14. Appellant claims that Ianuale, a man who knew the victim, appeared
at the crime scene when Brandon Caron and Hericson Torres interceded. Id.
at 13. According to Appellant, Ianuale would have testified that he saw either
Caron or Torres wielding a knife. Id. Further, Appellant avers that, while
incarcerated, Dennis Blanchette, another inmate, “approached him, and
stated that he knew the alleged victim, Ms. Seitz, and that Ms. Seitz is the
leader of a crew that … would rob people, stab them, and then leave them for
dead.” Id. at 14 (record citations omitted). Appellant claims trial counsel
was ineffective for failing to call Blanchette at trial. Id.
In his second (and related) issue, Appellant claims trial counsel was
ineffective for failing to “oversee” defense investigator, Joseph Chillari, and to
call him as a witness at trial “as to all of the interviews he conducted, and
everything that he gathered throughout his investigation.” Id. at 17. Taken
together, Appellant asserts in his two opening claims that he was prejudiced
by counsel’s failure at trial to present testimony from Seitz, Ianuale,
Blanchette, and Chillari. Id. at 12-17.
We have previously determined:
To prevail on a claim that counsel was ineffective for failing to call
a witness, Appellant must demonstrate that: (1) the witness
existed, (2) the witness was available to testify on his behalf, (3)
counsel knew or should have known about the witness, (4) the
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witness was willing to testify on his behalf, and (5) the absence of
the testimony prejudiced him.
Trial counsel's failure to call a particular witness does not
constitute ineffective assistance without some showing that the
absent witness's testimony would have been beneficial or helpful
in establishing the asserted defense.
Commonwealth v. Prater, 256 A.3d 1274, 1284 (Pa. Super. 2021), appeal
denied, 268 A.3d 386 (Pa. 2021) (internal citations and quotations omitted).
The PCRA court determined that Appellant failed to meet his burden of
showing prejudice as a result of trial counsel’s failure to call the witnesses
listed above. See PCRA Court Opinion, 8/4/2022, at 10. As the PCRA court
noted initially, Appellant did not call any witnesses at the PCRA hearing and,
instead, testified on his own behalf as to “what he believed they would have
said if called to testify.” Id. The Commonwealth objected to Appellant’s
testimony as hearsay, the PCRA court agreed and, therefore, did not consider
the testimony. Id. Instead, the court concluded that Appellant did not
produce sufficient evidence to support his ineffectiveness claims which rested
on counsel’s failure to call certain witnesses. Id. Additionally, the PCRA court
recalled that “two people completely unknown to [Appellant], testified
convincingly [at trial] about what they saw at the scene including that [the
victim] appeared dead and that despite numerous physical efforts, they were
unable to stop [Appellant] from continuing to assault her.” Id. at 18.
Moreover, “[t]he officers who [later] arrived at the scene [confirmed] that far
from self-defense, [Appellant] had to be restrained from continuing to attack
the lifeless victim.” Id.
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We agree with the PCRA court that trial counsel was not ineffective in
failing to call the witnesses Appellant lists on appeal. Appellant has not offered
evidence which shows that the uncalled witnesses would have aided his efforts
to prove self-defense at trial. Moreover, with regard to defense investigator,
Chillari, the PCRA court concluded that trial counsel had a reasonable basis to
forgo calling him at trial because “he had no additional information which
would have been admissible over hearsay objections” and that Appellant
further admitted at the PCRA hearing that “Mr. Chillari did everything
[Appellant] asked him to do and that he was satisfied” with the investigation.
Id. at 20. Finally, we note that “Appellant presented the testimony of
an[other] investigator, Joseph Alercia” at trial. Gardner, 2019 WL 3801485,
at *1. For the foregoing reasons, Appellant fails to show that he was
prejudiced by trial counsel’s failure to call the aforementioned witnesses at
trial. As such, Appellant’s first two appellate issues lack merit.
Next, Appellant asserts that trial counsel was ineffective in failing to
consult a medical expert about the “severe and life-threatening injuries” he
sustained which were “indicative of self-defense.” Appellant’s Brief at 18-22.
Appellant posits that such evidence was necessary to prove that he was not
the aggressor, that it was reasonable for him to believe that his life was
threatened by deadly force, and, ultimately, that his claims of self-defense or
imperfect self-defense possessed merit. Id. at 18.
Our Supreme Court has determined:
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Trial counsel need not introduce expert testimony on his client's
behalf if he is able effectively to cross-examine prosecution
witnesses and elicit helpful testimony. Additionally, trial counsel
will not be deemed ineffective for failing to call a medical, forensic,
or scientific expert merely to critically evaluate expert testimony
that was presented by the prosecution.
Commonwealth v. Williams, 141 A.3d 440, 464 (Pa. 2016) (citation
omitted).
Here, as the PCRA court recounted:
This case did not hinge upon which party sustained worse injuries.
[Trial counsel] testified that it was her strategy to bring in
evidence of [Appellant’s] injuries through eyewitnesses and
[Appellant] himself. [The trial court] believe[d] it was sufficient
for the jury to consider. As previously opined[,] even with
evidence of [Appellant’s] numerous injuries, he was unable to
support a claim of self-defense due to his repeated failure to
retreat once it was safe to do so. Even with a medical expert to
testify as to [Appellant’s] own injuries it is unlikely the end result
of the trial would have been any different.
PCRA Court Opinion, 8/4/2022, at 21 (record citation omitted).
We agree with the PCRA court’s analysis. As made clear in our decision
on direct appeal, set forth above, two eyewitnesses testified that when they
came to the crime scene, Appellant was attacking the victim, biting and/or
eating her face and pushing his fingers into her eyes, while she appeared
lifeless on the ground. Approximately one-half hour later, when police arrived,
Appellant was still attacking the victim as she lay limp. A claim of self-defense
or imperfect self-defense requires proof that “the defendant was not the
aggressor and did not violate a duty to retreat safely.” Commonwealth v.
Busanet, 54 A.3d 35, 56 (Pa. 2012) (citations omitted). Evidence from a
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medical expert showing that Appellant also sustained serious injuries during
the assault would not refute the fact that Appellant violated his duty to retreat
safely which, in turn, defeated his self-defense claim. Moreover, trial counsel
elicited largely identical medical testimony from Appellant regarding the
extent of his injuries. Therefore, we agree with the PCRA court that trial
counsel was not ineffective for failing to call a medical expert at trial.
In his fourth issue presented, Appellant claims that trial counsel was
ineffective for calling two of the eight character witnesses who testified on
Appellant’s behalf at trial. Appellant’s Brief at 22-23. Appellant argues that
six of the testifying character witnesses did not know about his past, criminal
history which included convictions for receiving stolen property, resisting
arrest, and recklessly endangering another person. Id. at 22. Two of the
character witnesses, however, were aware of Appellant’s past criminal history
and their favorable character testimony “open[ed] the door to Appellant’s past
convictions” upon cross-examination by the Commonwealth. Id.
This Court has previously stated:
It is clearly established that evidence of good character is to be
regarded as evidence of substantive fact just as any other
evidence tending to establish innocence and may be considered
by the jury in connection with all of the evidence presented in the
case on the general issue of guilt or innocence. Evidence of good
character is substantive and positive evidence, not a mere make
weight to be considered in a doubtful case, and, is an independent
factor which may of itself engender reasonable doubt or produce
a conclusion of innocence. Evidence of good character offered by
a defendant in a criminal prosecution must be limited to his
general reputation for the particular trait or traits of character
involved in the commission of the crime charged. The
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cross-examination of such witnesses by the Commonwealth must
be limited to the same traits. Such evidence must relate to a
period at or about the time the offense was committed and must
be established by testimony of witnesses as to the community
opinion of the individual in question, not through specific acts or
mere rumor.
***
This [C]ourt has made clear that in a case where intent and
credibility are decisive factors leading to either acquittal or
conviction, the accused's reputation is of paramount importance.
Indeed, evidence of good character may, in spite of all evidence
to the contrary, raise a reasonable doubt in the minds of the jury.
Commonwealth v. Luther, 463 A.2d 1073, 1077–1078 (Pa. Super. 1983)
(internal citations, quotations, original brackets omitted).
On this issue, the PCRA court opined:
[Appellant] was in a very difficult position taking this matter to
trial. Multiple witnesses testified that he [] savagely attacked Ms.
Seitz. His only avenue to counter the testimony was to testify
himself. However, [Appellant’s] testimony had many problems;
he admitted to having used drugs that day, his story involved
multiple holes and inconsistencies, and he could not recall large
portions of the event. [Appellant’s] credibility was a significant
obstacle for the defense. Anything that could bolster his credibility
would have been an asset. [The PCRA court found trial counsel]
credible in her testimony that she went over the risks of
introducing character witness testimony and she and [Appellant]
agreed it was the right strategy to take at the time. [The PCRA
court did] not find [Appellant] credible in his recollections
concerning the character witnesses.
PCRA Court Opinion, 8/4/2022, at 23 (record citation omitted).
Initially, we note that the PCRA court’s credibility determinations are
supported by the record and, therefore, we are bound by them. In this case,
Appellant’s reputation was of paramount importance and his intent and
credibility were decisive factors in this case. The PCRA court determined that
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trial counsel pursued a reasonable strategy in presenting evidence of
Appellant’s good character. Moreover, while “[s]ix of the eight [character]
witnesses were unaware of [Appellant’s criminal] background, [] all of them
agreed that [his prior record] did not affect their opinion of” Appellant’s
character for peacefulness. Id. at 22 (emphasis added). Appellant has not
shown that trial counsel lacked reasonable grounds for her action.
Accordingly, we deem Appellant’s fourth issue meritless.
Finally, Appellant argues that trial counsel had a conflict of interest
because she represented the victim in a prior, unrelated matter. Appellant’s
Brief at 24-26. Appellant testified that, prior to trial, he witnessed trial counsel
speak “with the victim for over twenty minutes.” Id. at 25.
The Pennsylvania Supreme Court has stated:
An appellant cannot prevail on a preserved conflict of interest
claim absent a showing of actual prejudice. Nevertheless, we
presume prejudice when the appellant shows that trial counsel
was burdened by an “actual”—rather than mere “potential”—
conflict of interest.
To show an actual conflict of interest, the appellant must
demonstrate that: (1) counsel “actively represented conflicting
interests”; and (2) those conflicting interests “adversely affected
his lawyer's performance.” Clients' interests actually conflict when
“during the course of representation” they “diverge with respect
to a material factual or legal issue or to a course of action.”
Commonwealth v. Collins, 957 A.2d 237, 251 (Pa. 2008) (internal citations
omitted).
Here, the PCRA court recognized:
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[Trial counsel] was assigned to Ms. Seitz as a public defender,
realized the conflict before a preliminary hearing could be held,
and only spoke to Ms. Seitz long enough to [advise her that
counsel would not be able to serve as her legal representative].
[Trial counsel] testified credibly that she neither discussed [this
case] with Ms. Seitz in any way, nor took steps to represent or
obtain any information as to Ms. Seitz in her matter. As such,
there was no conflict.
PCRA Court Opinion, 8/4/2022, at 24.
We discern no error or abuse of discretion. There is simply no record
evidence of an actual conflict of interest or, stated differently, that trial counsel
actively represented conflicting interests which adversely affected her
performance at Appellant’s trial. The PCRA court credited trial counsel’s
testimony that she only spoke with the victim to explain the potential conflict
and disavow her appointment as counsel for the victim before representing
Appellant. With no evidence of an actual conflict of interest, Appellant is not
entitled to relief on his final claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2023
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