J-S01019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY JAMES BRUNNER
Appellant No. 663 WDA 2014
Appeal from the PCRA Order February 19, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013465-2009
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 30, 2015
Timothy Brunner (“Appellant”) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 We
affirm.
The trial court opinion sets forth the relevant facts and procedural
history of the case. See PCRA Court Pa.R.A.P. 1925(a) Opinion, September
12, 2014 (“1925(a) Opinion”), pp. 1-8. Therefore, we have no need to
restate them.
Appellant raises one issue for our review:
I. Did the lower court abuse its discretion in dismissing the
PCRA petition without a hearing and allowing counsel leave to
withdraw, insofar as [Appellant] averred that his waiver of his
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
J-S01019-15
right to call character witnesses was involuntary and unknowing
because trial counsel was ineffective for failing to contact,
interview and prepare the character witnesses that [Appellant]
identified to counsel as being willing to testify on his behalf?
Appellant’s Brief, p. 4 (all capitals removed).
In reviewing an order denying PCRA relief, our well-settled standard of
review is “to determine whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,
191-192 (Pa.Super.2013) (internal quotations and citations omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Edward J.
Borkowski, we conclude Appellant’s issue merits no relief. The PCRA court
opinion discusses and properly disposes of the question presented. See
1925(a) Opinion, pp. 8-13 (finding: trial counsel not ineffective for failing to
call character witnesses where Appellant failed to illustrate prejudice – the
alleged witnesses’ testimony would not have negated the substantial
evidence of Appellant’s guilt; the trial court conducted a thorough oral
colloquy with Appellant regarding his right to testify and call character
witnesses during which Appellant acknowledged that he understood his right
to call character witnesses, discussed the right with his attorney, and that he
understood that the decision whether to call character witnesses was his
alone before knowingly, voluntarily, and intelligently waiving his right to call
-2-
J-S01019-15
character witnesses). Accordingly, we affirm on the basis of the PCRA
court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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FILED
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF CC 200913465
PENNSYLVANIA,
APPELLEE
v.
TIMOTHY BRUNNER, 663 WDA 2014
APPELLANT OPINION
FILED BY:
THE HONORABLE
'EDWARDJ. BORKOWSKI
COPIES TO:
Suzanne Swan, Esq.
428 Forbes A v.enue
Suite 1710 Lawyers Building
Pittsburgh,PA 15219
Michael W.Streily, Esq.
Office ·of .the District Attorney
'. . . .. ,., . 401.County'Courthouse. . . - -~ ". .. .
436 Grant Street
Pittsburgh, PA 15219
• '.' ", -'.~. ,.., . ":' <",' ,:., ,< '-', ,< ,",
APP.ENDIXA .
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iN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF CC 200913465
PENNSYLVANIA,
APPELLEE
v.
TIMOTHY BRUNNER,
APPELLANT.
OPINION
BORKOWSKI, 1.
PROCEDURAL HISTORY
Appellant, Timothy Brunner, was charged by criminal information (CC
200913465) with one count of criminal homicide, 1 one count of kidnapping,2 one
count of abuse of corpse,3 and one count of criminal conspiracy4
Appellant proceeded to a jury trial on April 4, 2010, with codefendant
Kristopher Benjamin, at the conclusion of which Appellant was found guilty of
second degree murder, kidnapping, abuse of corpse, and criminal conspiracy .
. ..... ..
:
118 Pa.C.S. § 2502.
2 18 Pa. CoS. § 2901.
!l ' ," . '
18 Pa, c.s. § 35lO. '
4
18 Pa.CoS. § 903.
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)
On July 7, 2010, Appellant was sentenced by the Trial Court as follows:
Count one: second degree murder -life imprisonment without the possibility
of parole;
Count two: kidnapping - four to eight years incarceration to be served
consecutive to the period of incarceration imposed at count one;
Count three: .abuse of corpse - one to two years incarceration to be served
consecutive to the period of incarceration imposed at count two;
Count four: criminal conspiracy - four to eight years incarceration to be
served consecutive to the period of incarceration imposed at count three.
Appellant filed a post sentence motion on July 13, 2010, which was denied
by the Trial Court on August 20, 2010. Appellant filed a timely notice of appeal on
September l7, 2010.
On January 18, 2013, the Superior Court vacated Appellant's judgment of
.sentence and remanded to the Trial Court for resentencing as counts one and two
merged. Appellant filed a Petition for Allowance of Appeal to the Supreme Court
on February IS, 2013, which was denied on July 17, 2013. On September 5,2013,
Appellant was resentenced by the Trial Court as follows:
Count one: second degree murder - life imprisonment without the possibility
., .. , ,.
of parole;
Count two: kidnapping - merged with count one;
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Count three: abuse of corpse - one to two years incarceration to be served
consecutive to the period of incarceration imposed at count one;
Count four: criminal conspiracy - four to eight years incarceration to be
served consecutive to the period of incarceration imposed at count three.
On October 25, 2013, Appellant filed a pro se PCRA petition. The Trial
Court .appointed counsel on October 29, 2013, and appointed counsel filed a
motion to withdraw pursuant to Turner-Finely on January 28, 2014. On January
30,2014, the Trial Court granted counsel's motion to withdraw and filed its notice
of intent to dismiss for the reasons stated in counsel's Turner-Finley letter. On
February 19,2014, the Trial Court denied Appellant's PCRA petition.
This timely appeal follows.
STA TEMENT OF ERRORS ON APPEAL
Appellant raises the following issues on appeal, and they are set forth
exactly.as Appellant framed them:
A. The lower court abused its discretion in finding no merit to the
claims raised in the PCRA petition, and denying the petition
alleging trial counsel's ineffectiveness without a hearing, where
the witnesses Mr. Brunner sought to present at his trial, but whom
counsel failed to contact, interview and call to the stand, would
have given testimony that would have raised a reasonable doubt as
to Mr. Brunner's culpability, particularly as to the degree of
'" homicide charged.
B. The lower court abused its discretion in finding no merit to the
claims raised in the PCRA petition, and denying the petition
,alleging trial counsel's ineffectiveness without ahearing, insofar as
Mr. Brunner claimed in his petition that his waiver of his right to
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call character witnesses was involuntary and unintelligent because
counsel failed to contact, interview and prepare the character
witnesses Mr. Brunner identified to counsel as being willing to
testify on his behalf.
FINDINGS OF FACT
The facts of the case have previously been summarized as follows:
In the early summer of 2009 Amy Kucsmas (victim) was
actively involved in daily drug seeking behavior in the Mt. Oliver and
Carrick section of Allegheny County. (TT 206-208, 223, 245-246)5
In late June or early July Kucsmas spent several days in the apartment
of Timothy Brunner. (T.T 283, 384-385, 738, 813-816) Brunner's
residence was apartment number two (2) of a four (4) unit building
located in Mt. Oliver, and at that time he was residing there with his
girlfriend, Ceira Brown. (T.T. 280-281) Kristopher Benjamin was a
friend and former co-worker of Brunner and lived in that same
apartment building - apartment number four (4), which was located
above Brunner's apartment. (TT. 281-282,679, 774-775, 809)
Shortly after Kucsmas began staying at Brunner's apartment she
"disappeared", taking approximately $200 of Brunner's money as
well as his photo identification card (ID). (TT 282, 385-386,818)
In the evening ofJuly 11,2009 Brunner, Benjamin and Brown
went to the Hazelwood section of the City of Pittsburgh. In the early
morning hours of July 12th they were returning to their Mt. Oliver
apartment building when Benjamin saw Kucsmas walking along
Brownsville Road in the Carrick section of the city. (T T 287, 342)
They were traveling in a pick-up truck driven by Benjamin that
belonged to a neighbor James House. (T.T. 285) Upon observing
Kucsmas, Benjamin stated, "Fucking Amy", and pulled the truck
over. (T.T. 287,343) Brunner and Benjamin got out of the truck and
both men angrily confronted Kucsmas about the stolen money and ID.
Kucsmas denied taking the money and eventually became so
frightened during the confrontation that she urinated on herself. (TT
209-216, 287-292, 387) Brunner took Kucsmas' ,purse and searched
The designation "T.T" followed by numerals refers to Trial Transcript of April 4-14, 2010,
'5
which 'is comprised of two (2) volumes.
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through it until he found the ID that had been stolen. (T.T. 213, 290,
347,387-388)
Once Brunner discovered his ID, he and Benjamin told
Kucsmas that she was going with them, and they began pulling her
toward the truck. (T.T. 214) Kucsmas initially resisted, but Brunner
assured her that everything would be okay and that she should come
home with them; Kucsmas ceased her resistant andgot into the truck,
followed by Brunner and Benjamin. (T.T. 214, 291)
Benjamin drove to an isolated and hilly area of a nearby park
where Kucsmas was ordered out of the truck. (T.T. 294, 394) Brunner
and Benjamin again angrily confronted Kucsmas about the money and
repayment, threatening to throw her over the hill. (T.T. 295-296, 397-
401) Kucsmas was scared and crying, assuring the men that she would
pay the money back. (T.T. 296-297) Kucsmas was ordered back into
the truck whereupon they drove back to their apartment building.
(T.T.298-299)
Once there Brown was ordered by Brunner to take Kucsmas by
the hand to prevent her from fleeing, and Kucsmas was escorted to
Brunner's apartment by Brunner, Benjamin, and Brown. (T.T. 301)
Once in the living room, Benjamin behan yelling at Kucsmas about
the money and made her take off her clothes whereupon he retrieved
$60 from her "private area", which in tum was given to Brunner. (T.T.
413, 425-427) Brunner, now armed with a handgun, and Benjamin
begin to beat and yell at Kucsmas. (T.T. 304,415, 845-849) During
this time Brunner cocked the weapon and fired a shot into the floor of
the apartment. (T.T. 304, 415) Brown retreated to her bedroom, but
heard Brunner and Benjamin continue the beating, as well as Kucsmas
pleading with the two men to stop. (T.T. 306, 845-848)
Eventually the beating stopped and Kucsmas was ordered to go
to the bathroom and shower. (T.T. 307, 849) While Kucsmas was in
the bathroom Brunner and Benjamin had a discussion regarding the
serious nature of the injuries they had inflicted on her, and they came
to an agreement that she could not leave the apartment because of
that. (T. T. 310, 418, 852)
When Kucsmas finished showering Brown witnessed Brunner
go into the bathroom and help Kucsmas out of the shower. (T. T. 311)
As Kucsmas began to walk out of the bathroom Brown saw Brunner
put his .arm around her neck from behind, and Benjamin approach her
from the front. (IT. 311., .327, 855) Brown thenput her head under
the covers of her bed, but she heard Kucsmas struggling and gasping
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for air. (T. T. 311) Kucsmas was punched in the head, which knocked
her to the bathroom floor. As she lay there her chest was stomped on,
and bloody foam oozed out of her mouth and nose. (TT. 855) When
the struggling and gasping stopped, Brown heard Brunner remark to
Benjamin, "she fought hard". (T.T. 311, 368) Brown took her head
out from under the covers and saw Kucsmas laying motionless on the
bathroom floor with Brunner and Benjamin standing around her (T.T.
312) Brunner and Benjamin picked Kucsmas up and laid her on the
floor in front of Brown's bed. (TT 313) Brown was ordered to go
outside and make certain that no one was .around. (T.T. 313)
Brunner went.to the basement of the building and returned with
a roll of carpet. (TT 558-560, 857-862) Brunner and Benjamin rolled
Kucsmas' body in the carpet and placed her in the back of the pick-up
. truck. (T.T. 865-868) At Benjamin's suggestion they then drove to
Hunter Park in Wilkinsburg Borough Where the body was left in a
weeded/wooded area. (T.T. 868) Benjamin was familiar with this area
because he grew up nearby.
When Brunner returned to his apartment he awakened Brown
and told her that .they had left Kucsmas behind a dumpster, and he
planned to go back and bum the body. (T.T. 317, 319) Brown was
instructed to clean up some blood spots on the living room carpet, as
well as some pieces of cut carpet that Kucsmas' body had been
wrapped in. (T.T 317-318,419-420) Brunner instructed Brown that if
she were ever questioned by the police, that she was to acknowledge
the confrontation with Kucsmas on the street and the return with her
to the apartment building, but to inform the police that upon their
return they went their separate ways and Kucsmas never went into
Brunner's apartment. (T T. 324)
On July 23, 2009 a tree cutting crew was dumping wood chips
at Hunter Park, when they discovered the carpet and partially
decomposed body of Amy Kucsmas dumped by Brunner and
Benjamin eleven (II) days earlier. CTT. 71-73, 89, 96)
The medical examiner was not able to determine the exact
cause of death due to the advanced stage of decomposition, however
there were multiple areas of blunt force trauma to the body including
broken ribs and head trauma. (T.T. 140-142) Given all the
circumstances presented, including the trauma to the body and where
and how the body was found, the pathologist concluded that the
manner·of death was homicide. (T.T. 141-146, 167)
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Superior Court Memorandum Opinion, January 18, 20l3, pp. 1-4, quoting Trial
Court Opinion, 1120112, at 3-8.
DISCUSSION
An appellate court's role in reviewing PCRA appeals is "limited to
determining whether the findings of the PCRA court are supported by the record
and free from legal error." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.
2009). The scope of review is .limited to the PCRA court's findings and the
evidence of record, which are to be viewed in the light most favorable to the
Commonwealth. Commonwealth v. Koehler, 36 A.3d 121, l31 (Pa. 2012). A denial
will not be disturbed unless it is found that the certified record does not support the
PCRA court's findings. Commonwealth v. Gandy, 38 A.3d 899, 902 Pa. Super.
2012). The law surrounding dismissing a PCRA Petition without a hearing has
been stated thusly:
The PCRA court has discretion to dismiss a petition without a
hearing when the court is satisfied that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings. To obtain reversal of a
PCRA court's decision to dismiss a petition without a hearing,
an appellant must show that he raised a genuine issue of fact
which, if resolved in his favor, would have entitled him to
relief, or that the court otherwise abused its discretion in
denying a hearing. We stress that an evidentiary hearing is not
meant to function as a fishing expedition for any possible
evidence that may support some speculative claim of
ineffecti venes s.
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Commonwealth v. Roney, 79 A.3d 595, 604-605 (Pa. 2013) (citations and
quotations omitted).
1.
Appellant first claims that the PCRA Court erred in denying his claim of
ineffective assistance of counsel for failing to call character witnesses based on the
argument that their testimony would have raised a reasonable doubt as to
culpability and the degree of homicide charged. This claim is without merit.
The standard of review for ineffective assistance of counsel claims is well
settled:
In evaluating claims of ineffective assistance of counsel, we
presume that counsel is effective. To overcome the presumption
of effectiveness, Appellant must establish three factors: first
that the underlying claim has arguable merit; second, that
counsel had no reasonable basis for his action or inaction; and
third, that Appellant was prejudiced. Counsel's assistance is
deemed constitutionally effective once this Court determines
that the defendant has not established anyone of the prongs of
the ineffecti veness test.
Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citations and
quotations omitted).. When the claim of ineffective assistance of counsel is based
on the failure to call a potential witness, petitioner must establish 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
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witness was so prejudicial as to have denied the defendant a fair trial."
Commonwealth v. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012). Accordingly,
"counsel will not be found ineffective for failing to call a witness unless the
petitioner can show that the witness's testimony would have been helpful to the
defense." Sneed, 45 A.3d at 1109.
Here, the jury heard substantial evidence connecting Appellant to the
kidnapping and murder of Amy Kucsmas, as well as the subsequent attempted
cover-up. This evidence included the testimony of Appellant and Appellant's
girlfriend. While Appellant had several witnesses available to testify to his own
good character and the bad character of his co-defendant, none of these witnesses
would have negated the substantial evidence implicating Appellant. Appellant
failed to show that the witnesses would have been helpful to the defense given the
substantial amount of evidence against Appellant and the heinous nature of the
cnmes.
Upon reviewing the record, the PCRA Court found that there were no
genuine issues of material fact, that Petitioner was not entitled to post-conviction
relief as he had failed to establish prejudice, and no legitimate purpose would be
served by a further proceeding. The PCRA Court properly dismissed Appellant's
PCRA claim without a hearing. See Commonwealth v. Pire/a, 726 A.2d 1026, 1035
{Pa. 1999) (defendant failed to establish prejudice for counsel's failure to call
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character witnesses during the sentencing hearing, and evidence of a troubled past
might be perceived as an attempt to trivialize the gravity of the crime).
Appellant's claim is without merit.
II.
Appellant alleges in his second claim that the PCRA Court erred in denying
his claim of ineffective assistance of counsel based on the argument that
Appellant's waiver of his right to call character witnesses was involuntary and
unintelligent. This claim is without merit.
Defendants have the right to call character witnesses in their defense at trial,
but may choose to waive that right as follows:
Where the defendant chooses not to call character witnesses, the
trial judge shall ascertain from the defendant whether this is a
knowing, voluntary and intelligent waiver. A waiver colloquy,
on the record, should be conducted by defense counsel, but may
be supplemented by the Court andlor the Attorney for the
Commonwealth. In a jury trial, the colloquy shall be held
outside the presence of the jury before the defense rests its case.
All. C. R. Crill. P. 602.2. Appellant's claim that he involuntarily waived his right
to call character witnesses, couched in an ineffective assistance of counsel claim, is
examined as follows:
When a presumptively-valid waiver is collaterally attacked
under the guise of ineffectiveness of counsel, it must be
analyzed like any other ineffectiveness claim. Such an inquiry
is not resolved by the mere absence of an oral waiver colloquy;
instead, the analysis must focus on the totality of relevant
circumstances. Those circumstances include the defendant's
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knowledge of and experience with jury trials, his explicit
written waiver (if any), and the content of relevant off-the-
record discussions counsel had with his client.
Commonwealth v. Birdsong, 24 A.3d 319, 339 (Pa. 2011) (in the context of a jury
waiver colloquy claim). In order to prevail, Appellant must demonstrate that: (1)
he did not understand the right that he was waiving; (2) that counsel caused the
failure to understand; and, (3) that but for counsel's ineffectiveness, Appellant
would not have waived that right. Birdsong, 24 A.3d at 340.
Appellant's claim here is based on the assertion that counsel's ineffective
assistance of counsel in failing to call character witnesses caused Appellant to
involuntarily waive his right to call character witnesses. As noted above, counsel
was nOLineffective for failing to call character witnesses. See supra pp. 9-10.
Further, Appellant's claim that his waiver was involuntary is belied by the record.
Following the close of the Commonwealth's case, the Trial Court conducted a
thorough oral colloquy with Appellant and his co-defendant regarding their rights
to testify and to call character witnesses. (T.T. 665-671). Appellant acknowledged
that he understood his right to call character witnesses, that he had discussed if
with his attorney, and that it was Appellant's decision alone whether to call
character witnesses. (T. T. 669-670). Thus, Appellant stated under oath that it was
his decision not to call character witnesses, and that he had not been threatened or
promised anything in exchange for making that decision. (T.T. 670-671). Trial
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counsel William Brennan further stated that he believed Appellant was making a
knowing, intelligent, voluntary, and fully-informed decision to not call character
witnesses. (T.T. 671). Given the oral colloquy, the demeanor of Appellant, and his
concurrent decision to testify in his own defense, the Trial Court found that
Appellant had made a knowing, voluntary, intelligent, and fully informed decision
not to call character witnesses. The PCRA Court properly denied Appellant'S claim
that his waiver was involuntary. See Birdsong, 24 A.3d at 341 (defendant failed to
establish that ineffective assistance of counsel caused him to waive his right to a
jury based on a bald allegation of prejudice).
Appellant'S claim is without merit.
--'eeNCLUSION
Based upon the foregoing, the judgment of sentence imposed by this Court
should be affirmed.
By the Court,
§ier;4t6~;L/'J.I 7.0 11
Date
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