Opinion
J-S25005-18 No. 785 WDA 2017
08-15-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. PAUL CHARLES HELMICK Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 25, 2017
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000552-2012 BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Paul Charles Helmick, appeals pro se from the order entered in the Washington County Court of Common Pleas, which denied his first petition brought pursuant to the Post-Conviction Relief Act ("PCRA"). We affirm.
In its opinions, the PCRA court fully and correctly set forth the relevant facts and most of the procedural history of this case. Therefore, we have no reason to restate them. We add that on April 18, 2017, Appellant responded pro se to the PCRA court's Pa.R.Crim.P. 907 notice. The PCRA court denied PCRA relief on April 25, 2017. On May 25, 2017, Appellant timely filed a pro se notice of appeal. The PCRA court did not order and Appellant did not file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On page 9, line 19, of the PCRA court's Rule 907 notice opinion, the citation should be a full cite to Commonwealth v. Charles Pierce , 515 Pa. 153, 158, 527 A.2d 973, 975 (1987), to distinguish it from Commonwealth v. Michael Pierce , 567 Pa. 186, 203, 786 A.2d 203, 213 (2001), cited earlier on that page of the court's opinion, which was later abrogated on other grounds by Commonwealth v. Grant , 572 Pa. 48, 813 A.2d 726 (2002).
Appellant raises the following issues for our review:
1) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO SECURE THE SERVICES OF A MEDICAL/FORENSIC EXPERT TO REVIEW THE VICTIM'S INJURIES AND BLOOD SPATTER EVIDENCE AND CALL AN EXPERT AT TRIAL AFTER THE TRIAL COURT HAD APPROVED THE RELEASE OF FUNDS FOR THAT PURPOSE?
2) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO SEEK TO SUPPRESS AND/OR EXCLUDE OR OTHERWISE OBJECT TO THE COMMONWEALTH'S USE OF AN UNRELIABLE STATEMENT MADE BY [APPELLANT] WHILE HE WAS IN A HIGHLY INTOXICATED STATE THAT WAS EXPLOITED BY THE COMMONWEALTH AT TRIAL?
3) DID TRIAL COUNSEL PERFORM INEFFECTIVELY BY FAILING TO CALL OTHER FACT WITNESSES TO THE STAND PREVIOUSLY IDENTIFIED BY [APPELLANT] CAPABLE OF REFUTING THE LAY WITNESS TESTIMONY OFFERED BY THE COMMONWEALTH WITH REGARDS TO THE SERIOUSNESS OF [VICTIM'S] INJURIES AFTER THE ACCIDENT THAT WERE EXAGGERATED AT TRIAL TO NEGATE SERIOUS BODILY INJURY?
4) WAS TRIAL COUNSEL INEFFECTIVE FOR OBJECTING TO THE COMMONWEALTH'S REQUEST TO REMOVE JUROR #2 FOR CAUSE WITHOUT FIRST CONSULTING WITH [APPELLANT] AND INSISTING UPON VOIR DIRE OF THE JUROR IN A SEPARATE HEARING WHERE THE JUROR WAS INATTENTIVE THROUGHOUT THE ENTIRE TRIAL AND IGNORING EVIDENCE BEING PRESENTED?
5) DID TRIAL COUNSEL PERFORM INEFFECTIVELY BY
FAILING TO OBJECT TO THE ADMISSION OF PRIOR BAD ACTS TESTIMONY FROM [VICTIM] AGAINST [APPELLANT] ABSENT A SUFFICIENT OFFER OF PROOF WHERE SAID ACTS WERE NEVER CRIMINALLY CHARGED?(Appellant's Brief at 4-5).
6) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO RECALL [APPELLANT], TAMMY SPROWLS AND JAMES HOBAN TO THE STAND IN SURREBUTTAL TO REFUTE [VICTIM'S] DAMAGING PRIOR BAD ACTS TESTIMONY DENYING [APPELLANT] HIS RIGHT TO TESTIFY IN HIS OWN DEFENSE AND A FAIR TRIAL?
7) WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL COURT'S GIVING OF AN UNWARRANTED JURY CHARGE ON VOLUNTARY INTOXICATION WHERE A VOLUNTARY INTOXICATION DEFENSE WAS NOT PRESENTED AT TRIAL [APPELLANT] WAS PREVENTED BY THE COURT FROM USING INTOXICATION TO EXPLAIN THE MAKING OF AN UNRELIABLE STATEMENT?
8) IS THE ORDER OF APRIL 25, 2017[,] DENYING PCRA RELIEF WITHOUT A HEARING A FINAL ORDER WHERE NOT ALL ISSUES WERE ADDRESSED BY THE PCRA COURT?
As a prefatory matter, "issues not raised in the [PCRA] court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a); Commonwealth v. Mason , 634 Pa. 359, 130 A.3d 601 (2015) (stating failure to include issue in PCRA petition or in court-approved amendment to petition constitutes waiver). Instantly, in his supplemental PCRA petition, Appellant raised an issue of trial court error for giving a voluntary intoxication instruction to the jury. In his appellate brief, however, Appellant styled issue seven under the framework of ineffective assistance of counsel for failing to object to the trial court's jury instruction of voluntary intoxication. Therefore, this issue is waived because Appellant did not raise this distinct claim before the PCRA court in the first instance. See id.
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, 109 (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, 515 (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, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Wah , 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Gary M. Gilman, we conclude Appellant's issues merit no relief. The PCRA court opinions comprehensively discuss and properly dispose of the questions presented. ( See PCRA Court Rule 907 Order and Notice Opinion, filed March 8, 2017, at 10-18, 23) (finding: (1) (pgs 10-12) Appellant did not identify potential expert witness and rests his ineffective assistance claim solely on speculation that such witness might have existed and opined favorably to advance Appellant's defense; Appellant's bald assertion and speculation does not constitute ineffective assistance of counsel; further, after colloquy, Appellant voluntarily withdrew trial continuance request on July 9, 2012, with knowledge that potential expert might not have time to review evidence properly or testify at trial; (2) (pgs 15-16) Appellant's own statement, "I killed that bitch dead," made on night of incident, falls under hearsay rule exception of admission by party-opponent; Appellant would not have prevailed on motion to suppress statement, and counsel cannot be ineffective for failing to pursue meritless claim; (3) (pgs 12-15) regarding Appellant's claim that trial counsel failed to call Linda Barton, Tasha Garcia, Christy Garcia, and Ryan Gallagher, police report indicated that all four witnesses heard Appellant "beating on the door, but did not witness anything"; Appellant's conjecture that these potential witnesses would have offered favorable evidence to defense does not merit relief; Appellant's complaint that trial counsel failed to call other witnesses cannot satisfy prejudice prong of ineffective assistance test because those witnesses were not eyewitnesses and Appellant cannot show there is reasonable probability that their testimony would have changed outcome of trial; (5-6) (pgs 17-18) Appellant employs hindsight analysis in argument, which does not satisfy test for ineffective assistance of counsel; Appellant discusses several instances where he believes counsel should have objected or recalled witnesses, but Appellant does not demonstrate prejudice; (8) (pg 23) Appellant did not raise any genuine issue of material fact in his PCRA petition to warrant evidentiary hearing or PCRA relief). See also PCRA Court Order and Opinion, filed April 25, 2017, at 2-3 (finding: (4) at trial, Commonwealth moved to strike Juror #2 based on observations that Juror was looking at ground throughout trial, did not make eye contact with attorneys or witnesses, and generally appeared hostile; defense counsel objected to Commonwealth's motion based on counsel's observations that Juror had made eye contact and appeared attentive; defense counsel noted that while Juror "seems somewhat on the hostile side...[d]efensively, it's a tactic that can work for me"; there was insufficient evidence to remove Juror; trial court noted both attorneys accepted Juror through voir dire, and there was no evidence of sleeping, dozing, or not paying attention to testimony; Appellant's ineffective assistance of counsel claim for this issue lacks arguable merit). The record supports the PCRA court's reasoning. Accordingly, we affirm on the basis of the PCRA court opinions.
To the extent the PCRA court also discusses trial counsel's "reasonable basis" regarding the forensic evidence admitted at trial, we decline to affirm on that ground, because the PCRA court did not hold an evidentiary hearing. See Commonwealth v. Hanible , 612 Pa. 183, 211, 30 A.3d 426, 442 (2011), cert. denied, 568 U.S. 1091, 133 S.Ct. 835, 184 L.Ed.2d 662 (2013) (stating PCRA court generally "should not glean from record whether counsel had a reasonable basis for his action or inaction absent evidentiary hearing).
Appellant has also filed a motion to compel the preservation of all evidence in this criminal matter, pending the exhaustion of appellate remedies. We grant Appellant's motion for the preservation of evidence at this time. Upon the resolution of all appeals, the Commonwealth can move the trial court for permission to dispose of the preserved criminal evidence in due course.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/15/2018
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