NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF PENNSYLVANIA v. : : DAMIEN MICHAEL SCHLAGER, : No MDA 2012 : Appellant : Appeal from the Order Entered July 5, 2012, in the Court of Common Pleas of York County Criminal Division at No. CP-67-CR BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 22, 2013 Appellant appeals from the order dismissing his first petition brought pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A Finding no error, we affirm. 1 follows: The facts of this case, as aptly summarized by the trial court, are as Appellant was accused of murdering Christina Colon and her unborn child. It was alleged that Appellant killed Ms. Colon after she claimed to be pregnant with his child and refused to get an abortion. At Appellant s trial, the Commonwealth played a tape recording of a conversation between Appellant and * Retired Justice specially assigned to the Superior Court. 1 In some instances, our rationale does not match that of the trial court. However, it is well settled that an appellate court can affirm on any basis. See In re Jacobs, 15 A.3d 509, n.1 (Pa.Super. 2011) ( [This Court is] not bound by the rationale of the trial court, and may affirm on any basis. ).

2 Larry Harcum. The Court admitted the recording into evidence. Mr. Harcum testified on December 12, 2005 that he consented to being wired by the police with a disk recorder. The resulting tape recording of a conversation between Mr. Harcum and Appellant was played in court. In his testimony, Mr. Harcum identified voices on the tape as his and [appellant s]. In that recording, Appellant admits to committing the murder; specifically, Appellant, referring to Ms. Colon, said I shot her and she fell right down onto the stones. But it, it blew, I shot her in the back of the head, it blew right out the front. Appellant was also recorded asking Mr. Harcum to dispose of Ms. Colon s body and giving Mr. Harcum specific directions to the location of the body. The recording also includes several statements made by Appellant indicating that Ms. Colon had told him that she was pregnant; for example, Appellant said, referring to Ms. Colon, She over six months pregnant, that means she got pregnant in February. The Commonwealth presented additional witnesses including several police officers involved either in the wire-tap operation and who interviewed Appellant before his arrest, an expert in forensic entomology who studied certain bugs found on the victim s body and testified as to the date of Ms. Colon s [death] within a reasonable degree of scientific certainty, and experts in forensic pathology, forensic anthropology and OB/GYN. Other testimony was presented, including that of David Killean, a manager assistant at Verizon Wireless who testified to the records of calls received or made by Ms. Colon s phone, and Melissa Bohin, a friend of Ms. Colon, who testified that Ms. Colon had called her child s father and that the number called belonged to Appellant. [Appellant] himself testified at trial. The Defense also presented the expert testimony of a forensic pathologist who could not say within a reasonable degree of medical certainty that Ms. Colon was pregnant at the time of her death

3 Friends, family and other people Appellant has had relationships with also testified. Trial court opinion, 7/5/12 at 2-3 (citations omitted). Following a jury trial, wherein appellant was represented by Gerald Lord, Esq. ( Attorney Lord ), the appellant was found guilty of first degree murder and murder of an unborn child but the jury rejected the death penalty. On February 22, 2006, appellant was sentenced to serve two consecutive life sentences; two fines of $50,000 were also imposed. Appellant s timely post-sentence motion was denied by operation of law. A direct appeal was filed, and on March 4, 2008, judgment of sentence was affirmed in part and vacated in part on the basis that the trial court imposed a monetary fine of $100,000 without having held a hearing to determine appellant s ability to pay. Commonwealth v. Schlager, 953 A.2d 606 (Pa.Super. 2008). Petition for reargument denied May 7, On October 17, 2008, the Pennsylvania Supreme Court denied appellant s petition for allowance of appeal. Commonwealth v. Schlager, 598 Pa. 788, 959 A.2d 929 (2008). On April 20, 2009, the United States Supreme Court denied appellant s writ of certiorari in an unpublished opinion. Schlager v. Pennsylvania, U.S., 129 S.Ct (2009). On November 10, 2009, appellant filed a pro se PCRA petition, and counsel was appointed on behalf of appellant; an amended petition was not filed. A hearing was held from November 15, 2011 to November 17, Three issues were essentially raised: (1) that trial and appellate counsel - 3 -

4 were ineffective; (2) that newly acquired evidence would likely compel a different verdict; and (3) that the trial court did not have jurisdiction to hear the case. At the hearing, appellant, Attorney Lord, and Christopher Morris testified as well as Private Investigator Charles Kleber. By order dated June 25, 2012, and docketed July 5, 2012, the PCRA court denied appellant s petition. On August 28, 2012, appellant was granted allowance of appeal nunc pro tunc. (Docket #154.) Notice of appeal was filed September 5, Appellant complied with the trial court s order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. Appellant presents the following three issues for our review: I. Whether trial counsel s failure to retain the services of expert witnesses in the fields of gunshot residue, ballistics, gynecology and prenatal care, and orthopedics and occupational therapy in preparation for trial amounted to ineffective assistance of counsel so much so that the denial of the claim by the PCRA court amounts to reversible error? II. III. Whether trial counsel s failure to adequately attempt to locate April Grey for purposes of testifying at trial amounted to ineffective assistance of counsel so much so that the denial of the claim by the PCRA court amounts to reversible error? Whether the PCRA court committed reversible error when it denied the Appellant a new trial based upon newly-discovered evidence in the - 4 -

5 Appellant s brief at 4. form of the testimony of Christopher Andre Morris? Initially, we recite our standard of review: This Court s standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795, 799 n. 2 (2005). The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001). Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). In his first claim on appeal, appellant argues that Attorney Lord was ineffective for failing to call certain witnesses. [W]e begin with the presumption that counsel was effective. A claimant establishes ineffective assistance of counsel when he demonstrates that [1] the underlying claim is of arguable merit; [2] that counsel s action or inaction was not grounded on any reasonable basis designed to effectuate the appellant s interest; and finally, [3] that counsel s action or inaction was prejudicial to the client. For an action (or inaction) by counsel to be considered prejudicial to the client, there must be a reasonable probability that the outcome of the proceedings would have been different. All three prongs of this test must be satisfied. If an appellant fails to meet even one prong of the test, his conviction will not be reversed on the basis of ineffective assistance of counsel

6 Commonwealth v. O Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal denied, 580 Pa. 696, 860 A.2d 123 (2004) (citations and internal quotation marks omitted). Where a defendant claims that counsel was ineffective for failing to call a particular witness, we require a defendant to demonstrate 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. Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 599 (2007). The PCRA provides that where a petitioner requests an evidentiary hearing, the petition shall include a signed certification as to each intended witness stating the witness's name, address, date of birth and substance of testimony and shall include any documents material to that witness's testimony. 42 Pa.C.S.A. 9545(d). Our Supreme Court has also made clear that: [w]hen a defendant claims that some sort of expert testimony should have been introduced at trial, the defendant must articulate what evidence was available and identify the witness who was willing to offer such evidence. Commonwealth v. Williams, 537 Pa. 1, 29, 640 A.2d 1251, 1265 (1994) citing Commonwealth v. Holloway, 524 Pa. 342, 572 A.2d 687 (1990). Claims of ineffectiveness of trial counsel cannot be considered - 6 -

7 in a vacuum. Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989). First, appellant claims Attorney Lord should have called Fred Wentling ( Wentling ) as an expert in gunshot residue and the transfer of gunshot residue to dispute the theory of the Commonwealth on the manner in which the murder was committed. Appellant claims such testimony could have served to discredit the testimony of Harcum who averred that appellant shot the victim with a handgun in a remote area of York County and then returned to his home in Lancaster driving his own vehicle. The Commonwealth did not present any physical evidence connecting appellant to the crime such as gunshot residue, DNA, fingerprints, or ballistic evidence. Appellant claims that Wentling would have testified as to the expected presence of gunshot residue on the interior and exterior of the passenger side of appellant s vehicle. Appellant fails, however, signed certification or otherwise, to provide any objective proof that Wentling was ready, willing, and able to testify on his behalf. See 42 Pa.C.S.A. 9545(d)(1). Nor did he call Wentling at the PCRA hearing as a witness to support his claim. As appellant s trial counsel is presumed to have rendered him effective assistance, he will not be deemed ineffective for failing to call an expert witness based solely on appellant s unsubstantiated allegations concerning the witness existence and willingness to testify on his behalf. Washington, supra. See also - 7 -

8 Commonwealth v. Wayne, 553 Pa. 614, 644, 720 A.2d 456, (1998) ( The mere failure to obtain an expert witness is not ineffectiveness. Appellant must demonstrate that an expert witness was available who would have offered testimony designed to advance appellant's cause. ); Commonwealth v. Jones, 652 A.2d 386 (Pa.Super. 1995), appeal denied, 541 Pa. 635, 663 A.2d 688 (1995) (where trial counsel is alleged to have been ineffective for failing to call witnesses but there is no positive evidence that witness would have provided testimony helpful to the defense there is no evidentiary basis for grant of new trial). Therefore, appellant has not met the burden of showing that counsel was ineffective for failing to call Wentling as a witness. Consequently, no relief is due. 2 Secondly, appellant claims that Attorney Lord was ineffective as he did not present expert testimony to contradict the testimony of Dr. Bayliss, an expert in obstetrics and gynecology. Appellant argues that Attorney Lord should have presented expert testimony to prove the fetus was not living at the time of the murder and contradict the testimony of Dr. Bayliss. Appellant has failed to identify any such expert who would have provided testimony to counter the Commonwealth's theory of the case. Appellant has not identified or even alleged the existence of a particular expert witness who was available at the time of trial and known to trial 2 Moreover, the testimony of an expert as to the existence of gunshot residue on the passenger side door would not have overcome appellant s taped confession to shooting Colon

9 counsel but whom trial counsel failed to call. Neither did appellant provide the PCRA court or this court with an offer of proof as to the precise type of expert testimony he proposes to prove his claim that Dr. Bayliss testimony could be contradicted. Appellant offers nothing more than unsupported allegations. Washington, supra; Durst, supra. No relief is due. Finally, appellant baldly asserts trial counsel was ineffective for failing to call an expert to testify about an alleged injury to appellant s arm. He avers that an expert would have testified that firing a gun would have been difficult and, if fired, would have resulted in visible swelling and bruising to appellant s arm. Again, he fails to identify such a witness and offers no proof that such a witness was willing and able to testify at trial on his behalf. No error has been shown. In his second issue, appellant argues that trial counsel was ineffective for failing to adequately attempt to locate April Gray. (Appellant s brief at 16.) He claims her testimony could have cast doubt upon the credibility of a Commonwealth witness, Harcum, and the Commonwealth s theory. Again, appellant fails to establish that Gray was available to testify and would have provided testimony influencing the outcome of his trial. Gray did not testify at the PCRA hearing, and appellant did not present a signed certification or an affidavit on her behalf. 3 3 Further, Attorney Lord made efforts to procure Gray for trial. Defense counsel was informed about Gray on November 28, 2005 in an from Charles Kleber, the private investigator hired by the defense. According to - 9 -

10 The final issue presented is whether the PCRA court erred in denying appellant a new trial based upon after-discovered evidence; specifically, the testimony of Christopher Morris. At the PCRA hearing, Morris testified that on May 12, 2007, he wrote a letter to Attorney Lord indicating that he had seen Harcum with the victim on two separate occasions between 2003 and Morris had never met the victim but recognized her from a photograph. He testified that he was not aware that appellant had been accused of killing the victim but that, had he known, he would have come forward with this information. (Id. at 5-18.) Appellant avers that this testimony would severely undercut Harcum s testimony that he did not know the victim. We agree with the PCRA court that appellant has not met his burden of proof. We first observe that Morris statement is facially not exculpatory; Morris testified that he had no information about the actual murder and that his testimony would be limited to the fact that he had seen Harcum with the victim. Appellant essentially argues that Morris testimony would be used as impeachment evidence. (Appellant s brief at ) After-discovered evidence used solely to impeach credibility of a witness will not warrant a Kleber s billing records, he began to look for Gray nine days later on December 7, Further, Kleber ed Attorney Lord that Gray might be difficult to find. At the PCRA hearing, Attorney Lord testified that both the Commonwealth and the Lancaster police were having a difficult time locating Gray. (Notes of testimony, 11/15-17/11 at 277, )

11 new trial. Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa.Super. 2010). Further, trial counsel attacked Harcum s credibility on crossexamination and questioned him concerning pending legal matters and his desire for leniency in his own sentencing. Harcum was also cross-examined concerning his motives to lie and as to his weak alibi. Moreover, as the Commonwealth asserts, this new evidence does not address the most damaging evidence against appellant -- his recorded confession. Appellant is not entitled to relief on this basis. Order affirmed. Judgment Entered. JosephD.Seletyn,Esq. Prothonotary Date: 10/22/