Opinion
J-S30033-17 No. 1998 MDA 2016
05-08-2017
COMMONWEALTH OF PENNSYLVANIA v. HOWARD WILLIAM DEWEESE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 8, 2016 in the Court of Common Pleas of Dauphin County, Criminal Division, No(s): CP-22-CR-0003531-2010 BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Howard William DeWeese ("DeWeese") appeals from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm in part and reverse in part the Order denying PCRA relief, vacate DeWeese's underlying judgment of sentence, and remand for resentencing in accordance with this Memorandum.
In its Opinion, the PCRA court concisely set forth the relevant factual and procedural history underlying this appeal. See PCRA Court Opinion, 11/10/16, at 1-2. We adopt the PCRA court's recitation as though fully set forth herein, see id., with the following addendum.
At trial, the trial court precluded some of the witnesses proffered by the defense. Specifically, as this Court previously explained,
the [trial] court precluded [DeWeese] from calling some of his so-called "mantra" witnesses [(hereinafter "the excluded mantra
witnesses"), most of whom had served as volunteers on DeWeese's political campaigns, ruling that] the proffered testimony would have been cumulative. The trial court noted for the record that the [excluded] []mantra[] witnesses would have testified that [DeWeese] told [his staff] that "if you engage in campaign time you have to use leave slips[]" [(hereinafter referred to as "the mantra")].Commonwealth v. DeWeese , 83 A.3d 1067 (Pa. Super. 2013) (unpublished memorandum at 2-3) (citation to record omitted, footnote in original moved to body). However, we explained that "eight of [DeWeese's] witnesses testified to the mantra" at trial. Id. (unpublished memorandum at 8) (quotation marks omitted). Additionally, at sentencing, the trial court ordered that the restitution imposed as part of DeWeese's sentence ($116,668.52) shall be paid directly to the Commonwealth.
DeWeese appealed his judgment of sentence, asserting, inter alia, that the trial court erred and deprived him of due process by precluding the excluded mantra witnesses from testifying. We ruled that this issue had been waived for lack of preservation, stating that "[b]ecause we have no record of what [DeWeese] presented to the [trial] court regarding the [excluded mantra] witnesses' testimony, we are unable to conduct meaningful appellate review of his allegation that the court abused its discretion in finding that the proffered testimony was cumulative." Id. (unpublished memorandum at 9); see also id. (stating that "the offers of proof for [the excluded mantra] witnesses are not in the certified record, in spite of [DeWeese's] attempt to argue now that the proffered testimony would not have been cumulative."). The Supreme Court of Pennsylvania subsequently denied DeWeese's Petition for allowance of appeal. See Commonwealth v. DeWeese , 81 A.3d 75 (Pa. 2013).
On November 26, 2014, DeWeese filed a PCRA Petition, after which he filed an Amended PCRA Petition in March 2015. On April 22, 2016, the PCRA court conducted an evidentiary hearing on the Petition (hereinafter "the PCRA hearing"). Therein, several witnesses testified, including DeWeese's trial/direct appeal counsel, William C. Costopoulos, Esquire (hereinafter "trial counsel"), and fourteen of the excluded mantra witnesses, each of whom stated that they would have presented testimony concerning the mantra at trial.
Several of the excluded mantra witnesses testified as defense character witnesses at trial.
By an Order entered on November 8, 2016, the PCRA court dismissed DeWeese's PCRA Petition. Thereafter, DeWeese filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
DeWeese now presents the following issues for our review:
1. Did the PCRA court err in [dismissing DeWeese's] PCRA Petition alleging ineffective assistance where [DeWeese] established that [trial] counsel was ineffective for failing to adequately proffer, or preserve for direct appeal, the testimony of fourteen [] [of the excluded mantra] witnesses[,] whose noncumulative testimony was essential to [DeWeese's] defense[,] and which undermined the credibility of the Commonwealth's primary witnesses on factual elements critical to the charges at issue?
2. Whether the restitution order in this case was illegal because the Commonwealth cannot be a victim under the subject criminal statutes?Brief for Appellant at 4.
This Court examines PCRA appeals in the light most favorable to the prevailing party at the PCRA level. Our review is limited to the findings of the PCRA court and the evidence of record. Additionally, we grant great deference to the factual findings of the PCRA court[,] and will not disturb those findings unless they have no support in the record. In this respect, we will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. However, we afford no deference to its legal conclusions.Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa. Super. 2014) (en banc) (internal citations, quotation marks and brackets omitted).
"To obtain relief on a claim of ineffective assistance of counsel, a petitioner must demonstrate that the underlying claim is of arguable merit, no reasonable basis existed for counsel's action or inaction, and counsel's error caused prejudice such that there is a reasonable probability that the result of the proceeding would have been different absent such error." Commonwealth v. Beasley , 967 A.2d 376, 383 n.5 (Pa. 2009) (citation omitted). Concerning the third prong of the ineffectiveness test (hereinafter "the prejudice prong"), if it is clear that a petitioner has failed to demonstrate that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone, without a determination of whether the petitioner met the first and second prongs. Commonwealth v. Travaglia , 661 A.2d 352, 357 (Pa. 1995); see also 42 Pa.C.S.A. § 9543(a)(2)(ii) (noting that in order to be entitled to relief, a PCRA petitioner alleging ineffective assistance of counsel must establish that it was of the type "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."). This prejudice inquiry requires consideration of the totality of the evidence. Commonwealth v. Spotz , 870 A.2d 822, 834 n.15 (Pa. 2005).
DeWeese first argues that the PCRA court erred in determining that he was not entitled to collateral relief on his claim that trial counsel was ineffective for failing to proffer, or preserve for direct appeal, the testimony of the excluded mantra witnesses. See Brief for Appellant at 33-57. According to DeWeese, the proposed testimony of the excluded mantra witnesses
was essential to the very crux of [DeWeese's] case theory, and it impeached the Commonwealth's key witnesses by calling into question [these witnesses'] allegations that [DeWeese] had rarely made efforts to enforce compliance[, i.e., with the mantra] .... However, trial counsel's failure to make such an offer of proof waived [DeWeese's] ability to challenge [the trial court's] decision[, i.e., to preclude the excluded mantra witnesses' testimony,] on direct appeal, as [the Superior] Court ruled that it was without a proper record to determine the content of the [excluded mantra] witnesses' testimony. By doing so, [trial counsel] waived a substantial, meritorious appellate issue that, if preserved, would have provided a reasonable probability that, upon remand[,] and armed with testimony essential to [DeWeese's] defense, the outcome of the proceeding would likely have differed.Id. at 33 (citation to record omitted).
In its Opinion, the PCRA court concluded that DeWeese's claim of trial counsel's ineffectiveness does not entitle him to relief, determining that (1) DeWeese failed to establish the prejudice prong; (2) the excluded mantra witnesses' testimony was cumulative to that already presented by the defense; and (3) even if the trial court erred in precluding the testimony of the excluded mantra witnesses, such error was harmless and caused DeWeese no prejudice. See PCRA Court Opinion, 11/10/16, at 7-11. We agree with the PCRA court's analysis and determination. Given the cumulative nature of the proposed testimony of the excluded mantra witnesses, even if trial counsel had proffered their testimony (or adequately preserved the issue for review on direct appeal), there is no reasonable probability that there would have been a different result (1) if the excluded mantra witnesses had testified at trial; or (2) concerning DeWeese's claim regarding the excluded mantra witnesses raised on direct appeal. See Travaglia , supra. Accordingly, we affirm based on the PCRA court's Opinion in rejecting DeWeese's first issue. See PCRA Court Opinion, 11/10/16, at 7-11.
We have reviewed the testimony offered by the excluded mantra witnesses at the PCRA hearing. This testimony supports the PCRA court's determination that it would have been cumulative of the evidence presented at trial by several defense witnesses concerning the mantra, who stated that DeWeese had frequently repeated the mantra, on many separate occasions, over a period of years. Moreover, we observe that all of the excluded mantra witnesses stated on cross-examination at the PCRA hearing that (1) they did not work for DeWeese during the relevant time period; and (2) they did not know whether DeWeese's staff performed campaign work during the business day. See generally N.T., 4/22/16. Additionally, at trial, the jury considered considerable incriminatory evidence, including, inter alia, the testimony of several of DeWeese's staff that DeWeese ordered them to perform campaign work on legislative time at the office, a matter about which the excluded mantra witnesses conceded they have no knowledge.
In his second issue, DeWeese contends that the restitution portion of his sentence is illegal and must be vacated because the Pennsylvania Supreme Court has held that the Commonwealth cannot be considered a direct victim (nor a reimbursable compensating government agency), under 18 Pa.C.S.A. § 1106, for purposes of restitution. Brief for Appellant at 57 (citing Commonwealth v. Veon , 150 A.3d 435, 456 (Pa. 2016) (holding that a restitution order directing payment to the Commonwealth as the victim of a crime constitutes an illegal sentence)). We agree.
Section 1106, governing the payment of restitution, provides, inter alia, that "[u]pon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor." 18 Pa.C.S.A. § 1106(a).
Though DeWeese did not raise this claim in his court-ordered Pa.R.A.P. 1925(b) Concise Statement, it is nevertheless preserved for our review, since challenges to the legality of a sentence cannot be waived. See Commonwealth v. Foster , 17 A.3d 332, 336 (Pa. 2011) (plurality) (noting that a challenge to the legality of a sentence presents a non-waivable jurisdictional issue).
The Commonwealth concedes that the restitution portion of DeWeese's sentence is illegal under Veon. See Brief for the Commonwealth at 51-52. --------
Here, the Commonwealth is not a victim or a reimbursable compensating government agency under section 1106. See Veon , 150 A.3d at 454-55. Accordingly, DeWeese's sentence of restitution to the Commonwealth is illegal, and must be vacated. Id. at 455-56.
Because vacating DeWeese's restitution sentence may disrupt the trial court's overall sentencing scheme, we vacate his judgment of sentence and remand for resentencing. See Commonwealth v. Hill , 140 A.3d 713, 718 (Pa. Super. 2016) (stating that where vacating a sentence disrupts a trial court's overall sentencing scheme, this Court will remand to the trial court for resentencing); see also Veon , 150 A.3d at 456 (same).
Based on the foregoing, we vacate DeWeese's judgment of sentence and remand for resentencing consistent with this Memorandum. We affirm the PCRA court's denial of PCRA relief on DeWeese's claim of ineffectiveness of trial counsel, as the claim lacks merit.
Order denying PCRA relief affirmed in part. Judgment of sentence vacated and case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/8/2017
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