Opinion
J-S73011-18 No. 294 WDA 2018
03-11-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. JAMES R. TURNER, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order January 30, 2018
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001944-2014 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, James R. Turner, Jr., appeals from the order entered in the Beaver County Court of Common Pleas, which denied his first petition filed under the Post Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. On the night of August 14, 2014, Appellant and his girlfriend ("Victim") went to a bar. After a few drinks, Victim left the bar and did not return, leaving Appellant behind. Appellant obtained a ride to Victim's home and confronted Victim about leaving him at the bar. In the course of this confrontation, Appellant repeatedly stabbed Victim in multiple parts of her body. Appellant left Victim's home, taking her car and the knife he used to stab her. Later, Appellant discarded the knife in the Ohio River. The stab wounds to Victim's left carotid artery and vein caused her to bleed out slowly and die. Appellant surrendered to police the next day, claiming he had acted in self-defense because Victim attacked him first with a knife. Evidence indicated Appellant was intoxicated when he attacked Victim, and Appellant claimed he was also intoxicated when he gave his statement to the police. On the day of Appellant's arrest, the police obtained a search warrant to collect blood samples from Appellant to compare to blood samples obtained from the scene of the attack. The Commonwealth utilized the blood samples for DNA analysis and the crime lab later destroyed them pursuant to lab protocol.
On February 12, 2016, a jury convicted Appellant of third-degree murder. The court sentenced Appellant on March 3, 2016, to twenty (20) to forty (40) years' imprisonment. On March 11, 2016, Appellant timely filed post-sentence motions, followed by numerous pro se and counseled filings and extensions of time. The court denied Appellant's post-sentence motions on November 2, 2016. On November 23, 2016, Appellant filed a petition for appointment of new counsel. On December 2, 2016, Appellant's prior counsel timely filed a notice of appeal on Appellant's behalf. Appellant filed a motion to withdraw the notice of appeal on December 9, 2016. Following a hearing on the same day, the court allowed Appellant to discontinue his direct appeal and appointed conflict counsel to pursue a PCRA petition instead. Appellant first filed a pro se petition, and new counsel filed an amended PCRA petition on June 19, 2017.
At a PCRA hearing on September 25-26, 2017, the court heard testimony from Appellant's sister, brother-in-law, son, and trial counsel. Also at the PCRA hearing, Appellant made an oral motion to reinstate his direct appeal rights nunc pro tunc, which the court denied on December 5, 2017. On January 30, 2018, the court also denied PCRA relief. Appellant filed a pro se notice of appeal on February 12, 2018. On February 15, 2018, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Counsel timely filed an amended notice of appeal on February 26, 2018, and a timely Rule 1925(b) statement on March 8, 2018.
Appellant raises the following issues on appeal:
1. WHETHER THE PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO TAKE ACTION TO PRESERVE, OBTAIN AND ANALYZE (A) THE SAMPLE OF [APPELLANT'S] BLOOD SEIZED BY POLICE IMMEDIATELY AFTER THE SEIZURE OF [APPELLANT'S] INCULPATORY STATEMENT TO POLICE AND (B) THE FOOTAGE OF VIDEO SURVEILLANCE OF [APPELLANT] ENTERING AND EXITING THE POLICE STATION IMMEDIATELY BEFORE AND AFTER THE POLICE SEIZURE OF [APPELLANT'S] INCULPATORY STATEMENT FOR ADMISSION TO CORROBORATE [APPELLANT'S] INTOXICATED AND CONFUSED STATE ON THE ISSUE OF WHETHER IT WAS A KNOWING, INTELLIGENT AND VOLUNTARY STATEMENT?
2. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MARSHAL AND INTRODUCE, DURING BOTH (A) A HEARING TO SUPPRESS AND (B) TRIAL, AVAILABLE EVIDENCE FROM AT LEAST THREE WITNESSES IN THE COMPANY OF [APELLANT] IMMEDIATELY PRIOR TO THE POLICE SEIZURE OF [APPELLANT'S] STATEMENT AS TO [APPELLANT'S] INTOXICATED AND CONFUSED STATE ON THE ISSUE OF
WHETHER IT WAS A KNOWING, INTELLIGENT AND VOLUNTARY STATEMENT?
3. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO SUPPRESS OR PROHIBIT THE EVIDENTIARY USE AT TRIAL OF ANY EVIDENCE INVOLVING THE ANALYSIS OF [APPELLANT'S] BLOOD SEIZED BY POLICE FOR A VIOLATION OF [APPELLANT'S] FEDERAL AND STATE CONSTITUTIONAL DUE PROCESS RIGHTS OF MEANINGFUL OPPORTUNITY TO PRESENT A DEFENSE?
4. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO ALL TESTIMONY OF THE COMMONWEALTH FORENSIC PATHOLOGIST NOT EXPLICITLY CONTAINED WITHIN HIS EXPERT AUTOPSY REPORT, ESPECIALLY HIS EXPERT OPINIONS THAT THE DECEDENT WAS UNCONSCIOUS AND PRONE WHILE STABBED MULTIPLE TIMES?
5. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MARSHAL, LOCATE, SECURE THE ATTENDANCE OF, AND INTRODUCE TESTIMONY OF AVAILABLE WITNESSES AND OTHER CHARACTER EVIDENCE OF THE DECEDENT'S VIOLENT PROPENSITIES IN GENERAL AND A SPECIFIC STATEMENT OF INTENTION OF VIOLENCE TOWARD [APPELLANT]?
6. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION OF AN ADVERSE INFERENCE FROM THE DESTRUCTION OF [APPELLANT'S] BLOOD SEIZED BY POLICE AND THE POLICE VIDEO AS IT RELATES TO BOTH (A) WHETHER [APPELLANT'S] INCULPATORY STATEMENT TO POLICE WAS KNOWING, INTELLIGENT AND VOLUNTARY, AND (B) WHETHER [APPELLANT] WAS CAPABLE OF FORMING A SPECIFIC INTENT TO KILL?
7. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION TO THE EFFECT THAT A DEFENDANT CANNOT BE FOUND TO HAVE ACTED WITH MALICE UNLESS IT FINDS THAT THE VICTIM'S INJURIES WERE CAUSED BY THE DEFENDANT'S INTENTIONAL AND VOLUNTARY
ACTION(S)-INVOLUNTARY ACTION IS NOT SUFFICIENT?(Appellant's Brief at 4-5).
In his PCRA petitions, Appellant failed to raise any claim of trial counsel's ineffectiveness for failure to move to suppress or preclude the Commonwealth's use of any evidence involving the analysis of Appellant's blood sample. Thus, Appellant's third issue is waived. See Commonwealth v. Williams , 909 A.2d 383, 386 (Pa.Super. 2006) (holding issues not raised in PCRA petition are waived on appeal); Commonwealth v. Brown , 767 A.2d 576, 585 (Pa.Super. 2001) (stating same).
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by the trier of fact who had the opportunity to observe the witnesses' demeanor. Commonwealth v. Abu-Jamal , 553 Pa. 485, 720 A.2d 79 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). Where the record supports the PCRA court's credibility resolutions, they are binding on this Court. Id.
Pennsylvania law presumes counsel has rendered effective assistance. Commonwealth v. Williams , 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his 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. Commonwealth v. Kimball , 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Williams , supra.
"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit...." Commonwealth v. Pierce , 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). "Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Poplawski , 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the 'reasonable basis' test to determine whether counsel's chosen course was designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective.Pierce , supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. The [appellant] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome. In [ Kimball , supra ], we held that a "criminal [appellant] alleging prejudice must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."Commonwealth v. Chambers , 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) (some internal citations and quotation marks omitted).
Regarding Appellant's issues one, two, four, five, and seven, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable James J. Ross, we conclude these issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented ( See PCRA Court Opinion, dated January 30, 2018, at 20-29) (finding: Appellant's complaints of trial counsel's ineffectiveness for failing to preserve, obtain, and analyze blood sample, to obtain surveillance video, and to request jury instruction on involuntariness defense lacked arguable merit and counsel's strategy cannot be challenged simply by comparing in hindsight trial strategy employed with alternatives not pursued; claims of counsel's failure to call Appellant's relatives as witnesses, counsel's failure to object to certain testimony of pathologist, and counsel's failure to utilize evidence of Victim's propensity for violence were explained by counsel's reasonable trial strategy). Accordingly, as to issues one, two, four, five, and seven, we affirm on the basis of the PCRA court's opinion.
In Appellant's remaining issue (six), Appellant argues trial counsel failed to request an adverse inference instruction relating to the destruction of Appellant's blood sample and the police station surveillance video. Appellant avers counsel should have requested an instruction specifically addressing the loss of this evidence to allow the jury to infer that the missing evidence would have been unfavorable to the Commonwealth and favorable to Appellant. Appellant alleges an adverse inference instruction could have partially mitigated counsel's initial failure to obtain, preserve, and analyze the blood sample and to obtain the video. Appellant concludes this Court should "arrest judgment on the count of Murder-3° and grant him a new trial." ( See Appellant's Brief at 47.) We disagree.
"Under Brady [ v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] and subsequent decisional law, a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature." Commonwealth v. Roney , 622 Pa. 1, 22, 79 A.3d 595, 607 (2013), cert. denied, ___ U.S. ___, 135 S.Ct. 56, 190 L.Ed.2d 56 (2014). "To establish a Brady violation, an appellant must prove three elements: (1) the evidence at issue was favorable to the accused, either because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued." Id. When the Commonwealth fails to preserve "potentially useful" evidence, as opposed to "materially exculpatory" evidence, no due process violation occurs unless the defendant can prove the Commonwealth acted in bad faith. Commonwealth v. Chamberlain , 612 Pa. 107, 30 A.3d 381 (2011), cert. denied, 566 U.S. 986, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012). "Potentially useful evidence is that of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Id. at 143, 30 A.3d at 402 (internal quotations marks omitted).
Instantly, Appellant wanted to use both the blood sample and the police station video to show he was intoxicated when he gave his inculpatory statement to police. The video surveillance and the blood evidence obtained from Appellant at the time of his statement, however, were only "potentially useful," as the evidence could have been subjected to tests that might have assisted in Appellant's defense. See id. Because the evidence was potentially useful at best, Appellant was required to show that the Commonwealth acted in bad faith regarding the destruction of the evidence at issue. See id. Here, Appellant failed to submit any evidence that the Commonwealth acted in bad faith or to contradict the assertions that the video evidence was recycled in due course. Trial counsel indicated only that by the time he requested the video surveillance, it was no longer available.
As for the blood samples, the Commonwealth utilized them for DNA analysis, whereas Appellant wanted the blood samples to show he was inebriated when he made his statement to the police. The crime lab, however, disposed of the blood samples pursuant to lab protocol, which provided for specimens to be retained for thirty days. The blood evidence might have been "potentially useful" but, absent more, the evidence was not "materially exculpatory." Appellant failed to prove any due process violation occurred as a result of the disposal of the blood evidence. See id.
As to the potential to use the evidence to demonstrate Appellant's incapacity to form the specific intent to kill, we observe the jury convicted Appellant of third-degree murder, which does not require the specific intent to kill. See Commonwealth v. Clemons , ___ A.3d ___, 2019 WL 286565 (Pa. filed January 23, 2019) (reiterating voluntary intoxication for diminished capacity purposes serves only to reduce first-degree murder to third-degree murder); Commonwealth v. Reed , 583 A.2d 459 (Pa.Super. 1990), appeal denied, 528 Pa. 629, 598 A.2d 282 (1991) (explaining evidence of voluntary intoxication may reduce first-degree murder to third-degree murder, but cannot reduce third-degree murder to manslaughter). Appellant's voluntary intoxication had already been used to mitigate the specific intent to kill. Thus, Appellant's claim regarding an adverse inference instruction related to the surveillance video and blood samples lacks arguable merit. Because Appellant's underlying claim lacks arguable merit, he fails to meet the first prong of the test for ineffective assistance of counsel. See Williams , supra ; Kimball , supra ; Pierce , supra. Therefore, counsel cannot be deemed on PCRA review as ineffective for failing to pursue a meritless claim and Appellant's sixth issue warrants no relief. Accordingly, we affirm.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/11/2019
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