Com. v. Gosner, E.

J-S37041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD FRANCIS GOSNER :
:
Appellant : No. 625 EDA 2023
Appeal from the PCRA Order Entered February 7, 2023
In the Court of Common Pleas of Bucks County
Criminal Division at CP-09-CR-0000187-2020
BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 5, 2023
Edward Francis Gosner (Appellant) appeals from the order denying his
first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
On July 14, 2021, after a [non-jury] trial, [the trial] court
found Appellant guilty of aggravated assault, assault by prisoner,
simple assault, and harassment. Appellant was represented by
Daniel Schatz, Esquire (hereinafter “Trial Counsel”).
The facts underlying Appellant’s convictions stem from an
attack that occurred on October 13, 2019[,] at the Bucks County
Correctional Facility (hereinafter “BCCF”). Appellant was in the
restricted housing unit of BCCF when he assaulted another
inmate, Michael Dozon (hereinafter “Victim”), after Appellant took
issue with Victim’s sexuality. N.T., 7/14/21, p. 69. Appellant
threatened to “fuck [Victim] up,” told him that “faggots shouldn’t
live” and “it’s not right to be gay,” and called [Victim] homophobic
slurs. Id. at 70-72. Appellant followed Victim as he retreated
into a closet, forcing Victim to spray Appellant with a water hose
so he could escape. Id. at 70. As Victim fled to the unit’s exit,
Appellant attacked him from behind. Id. at 74, 24. As Victim laid
curled up in a ball on the floor, Appellant punched and kneed
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Victim fifteen times and kicked him in the head. Id. at 25. Victim
never returned the attack on Appellant. Over five correctional
officers had to respond to the assault. Id. at 26. Correctional
officers attempted to obtain medical treatment for Victim, but he
refused. Id. at 79. However, Victim testified that his cheek was
swollen, he had bruises all over his body, and the pain in his head,
chest, and back areas was so severe that he had to take pain
medication “all of the time.” Id.
Shortly after the attack, Appellant discovered that charges
were filed against him for the assault. He threatened Victim to
“drop the charges … or [Appellant] would make [Victim’s] life a
living hell.” N.T., 7/14/21, p. 83. Victim received so many threats
that he became suicidal. Ultimately, Appellant asked Victim to
write a letter on Appellant’s behalf that Appellant’s girlfriend could
bring to the district court[,] to have the charges dismissed. Id.
at 89. Victim complied, had his cellmate write the letter with
Appellant’s requested false statements, and then Victim signed
the letter. Id. at 92-95. On November 8, 2019, Appellant wrote
a letter to his girlfriend with Victim’s letter attached. At the
preliminary hearing, Appellant also told Victim “please make the
right decision,” implying Victim should lie on the stand so that the
case would be dismissed. Id. at 97, 96.
After this court found Appellant guilty of the charges, it
deferred sentencing for 60 days. On September 10, 2021, this
court imposed sentence of no less than seven years to no more
than fifteen years of incarceration in a state correctional facility
on count 1, aggravated assault[. The court imposed] a sentence
of no less than five years to no more than ten years in a state
correctional facility on [Appellant’s conviction of] … assault by
prisoner, to run concurrently to the sentence imposed on count 1.
[With respect to Appellant’s remaining convictions, the trial court
imposed no further punishment.] This court also ordered
Appellant to pay the costs of prosecution as well as to undergo
mental hea[l]th and drug and alcohol treatment and complete an
anger management program.
PCRA Court Opinion, 4/18/23, at 1-3 (footnotes omitted, some capitalization
and citations modified).
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On September 20, 2021, Trial Counsel filed a post-sentence motion
(PSM) on Appellant’s behalf. Appellant claimed the trial court abused its
discretion in imposing an excessive sentence. PSM, 9/20/21, ¶¶ 6, 7
(asserting the sentence was “well beyond the top of the aggravated range”
and “greater than necessary to meet the rehabilitative needs of [Appellant,]
as well as the need to protect the public.”). Pertinently, Appellant requested
the appointment of new counsel to file a PCRA petition raising Trial Counsel’s
ineffectiveness. Id. ¶¶ 8-11. The trial court denied Appellant’s PSM without
a hearing on September 29, 2021. Appellant did not appeal.
On July 11, 2022, Appellant timely filed a pro se PCRA petition.
Appellant claimed, inter alia, that Trial Counsel rendered ineffective assistance
when he ignored Appellant’s repeated requests to file an appeal. PCRA
Petition, 7/11/22, at 4. The PCRA court appointed Eric Alcon, Esquire (PCRA
Counsel) to represent Appellant.1 PCRA Counsel filed an amended PCRA
petition on December 7, 2022. In the amended petition, Appellant raised
several claims of Trial Counsel’s ineffectiveness. See Amended PCRA Petition,
12/7/22, ¶¶ 5, 10-28. Relevant to this appeal, Appellant claimed Trial Counsel
“failed to properly preserve in [the PSM, Appellant’s] challenge to the
discretionary aspects of the sentence.” Id. ¶ 10(b). Appellant further argued
Trial Counsel
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1 PCRA Counsel continues to represent Appellant on appeal.
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failed to properly preserve, and to file, [a direct] appeal to the
Superior Court, challenging the discretionary aspects of the
sentence and the sufficiency of the evidence with respect to the
charge of [a]ggravated [a]ssault.
Id. ¶ 10(c). In addition, Appellant asked the PCRA court to schedule an
evidentiary hearing to develop the record.2 Id. ¶¶ 29-30.
On January 10, 2023, the Commonwealth filed an answer asserting that
each of Appellant’s claims of Trial Counsel’s ineffectiveness lacked merit. See
Answer, 1/10/23, at 4-18. Seven days later, the PCRA court issued
Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition without
a hearing. The PCRA court stated it “is satisfied that the claims raised in [the
petition] are without merit and do not warrant an evidentiary hearing.” Notice
of Intent to Dismiss, 1/17/23. Appellant did not respond.
The PCRA court denied Appellant’s PCRA petition on February 7, 2023.
This timely appeal followed. Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
Appellant presents three issues for review:
I. Did [the] lower court err in denying []Appellant’s claim, without
a hearing, that Trial Counsel was ineffective in that he failed to
properly preserve in a post-sentence motion [Appellant’s]
challenge to the discretionary aspects of the sentence[?]
II. Did the lower court err in denying []Appellant’s claim, without
a hearing, that Trial Counsel failed to properly preserve, and to
file an appeal to the Superior Court, challenging the
discretionary aspects of the sentence[?]
____________________________________________
2 Appellant did not attach any affidavits to either his pro se PCRA petition or
amended petition.
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III. Did the lower court err in denying []Appellant’s claim, without
a hearing, that Trial Counsel failed to properly preserve, and to
file an appeal to the Superior Court, challenging the sufficiency
of the evidence with respect to the charge of aggravated
assault-attempt to cause serious bodily injury[?]
Appellant’s Brief at vi (some capitalization modified).
Preliminarily, we discuss a defect in Appellant’s brief. In compliance
with our Rules of Appellate Procedure, Appellant sets forth separate
arguments for each of the issues presented in his statement of questions
involved. See id. at 15-21; see also Pa.R.A.P. 2119 (argument section of
appellate briefs). However, Appellant also argues an issue that does not
correspond with his statement. See Appellant’s Brief at 9-14 (claiming the
PCRA court erred in denying relief without an evidentiary hearing and
determining Appellant’s PCRA petition was defective for failure to include an
affidavit from Trial Counsel).
“This Court will address only those issues properly presented and
developed in an appellant’s brief as required by our Rules of Appellate
Procedure, Pa.R.A.P. 2101-2119.” Commonwealth v. Phillips, 141 A.3d
512, 522 (Pa. Super. 2016). Issues not presented in the statement of
questions involved are generally deemed waived. Commonwealth v.
Garland, 63 A.3d 339, 342 (Pa. Super. 2013) (finding waiver of appellant’s
issue) (citing Pa.R.A.P. 2116(a) (“No questions will be considered unless they
are stated in the statement of questions involved or are fairly suggested
thereby.”)). Accordingly, Appellant waived this issue. Id.; see also
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Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011) (“The briefing
requirements scrupulously delineated in our appellate rules are not mere
trifling matters of stylistic preference; rather, they represent a studied
determination by [the Supreme] Court and its rules committee of the most
efficacious manner by which appellate review may be conducted”). We thus
proceed to the merits of Appellant’s preserved issues.
Our standard of review of a PCRA court’s denial of relief is “limited to
whether the court’s findings of fact are supported by the record, and whether
its conclusions of law are free from legal error.” Commonwealth v. Small,
238 A.3d 1267, 1280 (Pa. 2020). The scope of our review is limited to the
findings of the PCRA court and the evidence of record, which we view in the
light most favorable to the party who prevailed in the PCRA court.
Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011).
With respect to evidentiary hearings, this Court has explained:
A PCRA petitioner is not automatically entitled to an evidentiary
hearing. We review the PCRA court’s decision dismissing a
petition without a hearing for an abuse of discretion. The right to
an evidentiary hearing on a post-conviction petition is not
absolute. It is within the PCRA court’s discretion to decline to hold
a hearing if the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is the
responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record … to
determine if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy and in
denying relief without conducting an evidentiary hearing.
Commonwealth v. Williams, 244 A.3d 1281, 1287 (Pa. Super. 2021)
(citations, brackets, and paragraph break omitted).
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All of Appellant’s issues assail the effectiveness of Trial Counsel.
Notably, counsel is presumed to be effective; a PCRA petitioner bears the
burden of proving otherwise. Commonwealth v. Brown, 196 A.3d 130, 150
(Pa. 2018); see also Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011)
(“When evaluating ineffectiveness claims, judicial scrutiny of counsel’s
performance must be highly deferential.” (citation and quotation marks
omitted)).
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from[, inter alia,] the “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.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting 42
Pa.C.S.A. § 9543(a)(2)(ii)).
To establish a claim of ineffectiveness, a PCRA petitioner must plead and
prove:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) he
suffered prejudice as a result of counsel’s error, with prejudice
measured by whether there is a reasonable probability the result
of the proceeding would have been different. Commonwealth v.
Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective
assistance of counsel test from Commonwealth v. Pierce, 527
A.2d 973, 975-76 (Pa. 1987)). … Additionally, counsel cannot be
deemed ineffective for failing to raise a meritless claim. Finally,
because a PCRA petitioner must establish all the Pierce prongs to
be entitled to relief, we are not required to analyze the elements
of an ineffectiveness claim in any specific order; thus, if a claim
fails under any required element, we may dismiss the claim on
that basis.
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Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations
modified).
In his first issue, Appellant claims the PCRA court erred in denying relief
without an evidentiary hearing because Trial Counsel “was ineffective in that
he failed to properly preserve in a [PSM, Appellant’s] challenge to the
discretionary aspects of the sentence.” Appellant’s Brief at 15 (capitalization
modified); see also Commonwealth v. Gibbs, 981 A.2d 274, 282-83 (Pa.
Super. 2009) (“Issues challenging the discretionary aspects of a sentence
must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.”).
Appellant concedes Trial Counsel “did ask for a reconsideration of
sentence” in the PSM. Appellant’s Brief at 15; see also PSM, 9/20/21, ¶¶ 6,
7 (claiming Appellant’s sentence was “well beyond the top of the aggravated
range” and “greater than necessary to meet the rehabilitative needs of
[Appellant,] as well as the need to protect the public.”). Nonetheless,
Appellant asserts that the discretionary sentencing claim in the PSM
does not raise a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of
the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process. As such, even had [a
direct] appeal been filed, as Appellant requested, [the Superior]
Court would have likely found the [PSM] insufficient and
determined that Appellant had waived his right to challenge the
discretionary aspects of the sentence by failing to properly
preserve same in the post-sentence motion.
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Appellant’s Brief at 16.
The Commonwealth counters that the PCRA court properly rejected this
claim because the PSM preserved Appellant’s discretionary sentencing
challenge:
The [PSM] argued Appellant was sentenced beyond the
aggravated range of the sentencing guidelines and that he
believed his sentence to be “excessive and greater than necessary
to meet the rehabilitative needs of Appellant as well as the need
to protect the community.” [PSM, 9/20/21,] ¶¶ 6-7. Absent
Appellant identifying some additional discretionary aspects of
sentencing claim that he believed trial counsel should have raised
in his post-sentence motion, trial counsel surely did preserve a
reviewable sentencing claim for purposes of direct appeal, and the
underlying claim here has no arguable merit.
Commonwealth Brief at 13 (italics in original; some capitalization modified).
The PCRA court also opined that Appellant’s discretionary sentencing
claim was “properly preserved” in the PSM. PCRA Court Opinion, 4/18/23, at
8. We agree. As there is no arguable merit to Appellant’s underlying claim of
Trial Counsel’s ineffectiveness, the PCRA court did not err in denying relief.
In the alternative, the PCRA court stated
even if Trial Counsel’s [PSM] was insufficient, Appellant has not
established all three required prongs of the Pierce test for
ineffective assistance of counsel. Specifically, Appellant has not,
and cannot, establish prejudice because there is no reason to
believe that a challenge to the discretionary aspects of sentence
would have had merit on appeal.
PCRA Court Opinion, 4/18/23, at 8.3 Again, we agree.
____________________________________________
3 The PCRA court also cited law applicable to discretionary aspects of
sentencing claims. See PCRA Court Opinion, 4/18/23, at 8-10.
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The PCRA court, which also presided at Appellant’s sentencing,
explained:
[T]his court set forth its reasons for the sentence on the
record. First, this court considered Appellant’s prior criminal
history and noted he had six prior convictions for assault-related
behavior. N.T. 9/10/2021, p. 11. Second, this court considered
the facts of the case—that Appellant began his attack from behind,
leaving Victim unable to defend himself; that Appellant kneed and
kicked Victim over a dozen times in the head despite Victim never
attempting to fight back—and determined that it was a “very
violent and unprovoked and vicious assault.” Id. at 12. Third,
this court considered Appellant’s lack of remorse and failure to
accept responsibility for his actions. At sentencing, Appellant
claimed to feel apologetic for his actions, yet interrupted this court
in the middle of the imposition of sentence to blame Victim for the
assault and to again lie and state a debunked assertion that the
hose Victim used [in self-defense] was filled with anything other
than water. Id. at 12[]; N.T. 7/14/2021, p. 41.
Fourth, this court considered Appellant’s inability to abide to
authority as shown by his numerous misconducts in the [BCCF]
and his violations of this court’s orders to not contact victims. N.T.
9/10/2021, p. 13. Fifth, this court considered the need to protect
the community and noted that Appellant has repeatedly
demonstrated that he cannot control his anger and that he has
even acknowledged this himself at times. Id. at 14. Lastly, this
court considered Appellant’s need for rehabilitation. Although
Appellant completed a few classes on anger management and
decision-making, this court found that those classes did not meet
Appellant’s needs. Id. Appellant, time after time, chose not to
take advantage of and follow the programs and treatment
available to him in the community, in the county correctional
facility, or in the state correctional facility. For these reasons, this
court found that anything other than total confinement was
inappropriate. Id.
As such, it is clear that this court did not err when imposing
sentence and properly exercised its discretion and, as such, any
challenge on direct appeal would be meritless. Appellant’s claim
to the contrary is wholly without merit and Appellant’s claim that
Trial Counsel was ineffective must fail.
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PCRA Court Opinion, 4/18/23, at 10-11 (some capitalization modified). For
the above reasons, Appellant’s first issue lacks merit.
In his second and third issues, Appellant presents related claims.
Appellant asserts the PCRA court erred in rejecting his contention that Trial
Counsel was ineffective for failing to file a requested direct appeal challenging
the sufficiency of the evidence and the discretionary aspects of his sentence.
See Appellant’s Brief at 16-18, 19-21. According to Appellant, he
pled in both the pro se [PCRA] petition and the amended petition
that he directed Trial Counsel to pursue an appeal challenging the
sentence. There is nothing in the record that belies this claim.
Trial Counsel contends, through the Commonwealth’s answer
[to Appellant’s amended PCRA petition], that [Trial Counsel] was
not told to pursue an appeal of the sentence. Without a[n
evidentiary hearing,] it is impossible for the PCRA court to make
any determination as to whether Appellant’s claim, or Trial
Counsel’s response, is credible.
Id. at 17 (some capitalization modified).
The Commonwealth counters that Appellant failed to meet his burden of
proving he asked Trial Counsel to file a direct appeal. See Commonwealth
Brief at 14-18. The Commonwealth argues:
Appellant makes passing references to alleged verbal and written
directives to [Trial Counsel to] file an appeal on [Appellant’s]
behalf. However, … [Appellant] failed to attach any exhibits to his
petition demonstrating such written instructions. Moreover,
before [the Commonwealth filed] its answer [to the amended
PCRA petition, PCRA Counsel] spoke with [T]rial [C]ounsel[,] who
contested that Appellant ever instructed him to file a direct appeal.
The Commonwealth relayed the same in its answer.
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Id. at 16; but see also id. at 18 (Commonwealth acknowledging “the
averments in its answer … did not constitute ‘testimony’ or ‘evidence.’”).
According to the Commonwealth, the
record – even absent any additional testimony at [a PCRA
evidentiary] hearing – undermines any claim that Appellant asked
[T]rial [C]ounsel to file and represent him on direct appeal while
simultaneously expressing [Appellant’s] steadfast desire to
immediately pursue PCRA claims alleging [Trial Counsel’s]
ineffectiveness.
Id. at 17. Upon review, we agree.
The Pennsylvania Supreme Court has held that where there is an
“unjustified failure to file a requested direct appeal,” counsel is per se
ineffective. Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999)
(footnote omitted). However, while “counsel may be ineffective for failing to
file a direct appeal on his client’s behalf, a PCRA petitioner must prove that he
asked counsel to file an appeal in order to be entitled to
relief.” Commonwealth v. Maynard, 900 A.2d 395, 397-98 (Pa. Super.
2006) (citation omitted). “Mere allegations will not suffice.” Commonwealth
v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999). Where a petitioner has
met his burden of proving he asked for a direct appeal, “no discussion of the
potential merit of any claims is necessary or warranted.” Commonwealth v.
Markowitz, 32 A.3d 706, 715 (Pa. Super. 2011) (citing Lantzy, 736 A.2d at
572).
Instantly, at the beginning of Appellant’s sentencing hearing, Trial
Counsel stated that Appellant had presented “one issue I think ought to be
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addressed prior to any argument.” N.T., 9/10/21, at 3. Trial Counsel then
questioned Appellant as follows:
[TRIAL COUNSEL]: I received a letter [from Appellant] … written
by [Appellant] by way of the Public Defender’s Office[,] expressing
your desire to pursue certain matters on PCRA; is that correct?
[APPELLANT]: Yes, sir, it is.
[TRIAL COUNSEL]: I’m nonetheless prepared to move forward
with sentencing today. Would you like to move forward for
sentencing today with my representation?
[APPELLANT]: Yes, I would.
Id. at 3-4.
After the trial court sentenced Appellant, Trial Counsel asked the trial
court: “Would you be inclined to vacate my appointment [as Appellant’s
counsel] at this time so [Appellant] can pursue other relief?” Id. at 16. The
trial court responded:
THE COURT: I think what I’m inclined to do is, if [Appellant]
wishes to appeal, [the trial court will] have [Trial Counsel]
file the notice of appeal so that [Appellant’s] rights are
protected. Then I will permit [Trial Counsel’s] withdrawal since
[Appellant has] raised post conviction issues or ineffective [sic]
issues.
Id. (emphasis added). The trial court advised Appellant he had “30 days to
file an appeal” from the date of his sentence. Id. at 15. The trial court further
informed Appellant: “If you can’t afford an attorney for that purpose, we’ll
appoint one for you free of charge….” Id. at 15-16.
As discussed, Trial Counsel averred in the PSM that Appellant sought
appointment of new counsel to file a PCRA petition claiming Trial Counsel’s
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ineffectiveness. PSM, 9/20/21, ¶¶ 10-11; id. ¶ 8 (stating Appellant “has
indicated, through a July 27, 2021 letter to the Public Defender’s Office, that
he wishes to file for [PCRA] relief”); accord Lesko, 15 A.3d at 359
(recognizing an attorney cannot raise a claim of his own ineffectiveness).
Thus, the record belies Appellant’s unsupported claim that he asked Trial
Counsel to file a direct appeal. Harmon, 738 A.2d at 1024 (a PCRA
petitioner’s “[m]ere allegations” that petitioner asked counsel to file an appeal
“will not suffice” to satisfy petitioner’s burden of proving the claim).
Appellant’s second and third issues fail because there is no arguable merit to
his claim of Trial Counsel’s ineffectiveness.
Our review reveals no abuse of discretion by the PCRA court in
determining that Appellant raised no genuine issues of material fact and
denying Appellant’s PCRA petition without an evidentiary hearing.
Order affirmed.
Date: 12/5/2023
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