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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
EDWARD DUNPHY, :
:
Appellant : No. 35 EDA 2013
Appeal from the PCRA Order December 14, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0010374-2008
BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 05, 2015
Appellant, Edward Dunphy, appeals from the order entered in the
Philadelphia County Court of Common Pleas, dismissing his timely first Post
Conviction Relief Act1 (“PCRA”) petition. He alleges the PCRA court erred by
dismissing his petition alleging trial counsel’s ineffectiveness without an
evidentiary hearing. We vacate and remand for an evidentiary hearing.
We state the facts as set forth by a prior panel of this Court:
On June 7, 2008, at approximately midnight, Appellant
was driving his vehicle while intoxicated, striking and
killing a 20 year old pedestrian, Hannah Cintron, as she
was crossing the northbound lanes of Delaware Avenue, a
* Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9545.
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six-lane divided highway with a speed limit of 35 miles per
hour. Cintron suffered multiple, severe blunt impact
injuries to her head, torso, and legs, sustaining a fractured
hip, a fractured rib, a broken back and a ruptured aorta.
Cintron was pronounced dead at the scene. As a result,
Appellant was arrested and charged with murder in the
third degree, 18 Pa.C.S.A. § 2502(c); involuntary
manslaughter, 18 Pa.C.S.A. § 2504(a); homicide by
vehicle, 75 Pa.C.S.A. § 3732; homicide by vehicle while
driving under the influence, 75 Pa.C.S.A. § 3735(a);
accident involving death or personal injury, 75 Pa.C.S.A. §
3742; and driving under the influence of alcohol, 75
Pa.C.S.A. § 3802(a)(1).
On July 14, 2009, Appellant proceeded to a trial before
a jury. At trial, Dennis Wright, a valet employed at Roxxy
nightclub in the 900 block of North Delaware Avenue,
testified that, shortly after midnight on June 7, 2008, he
heard the sound of a truck suddenly accelerating. He
looked towards the sound, and observed Appellant driving
north on Delaware Avenue at approximately 60 miles per
hour. He also observed the victim, Hannah Cintron,
walking across the northbound lanes of Delaware Avenue,
in the lane closest to the median strip. Wright witnessed
Appellant’s truck slam into Cintron, causing her to fly into
the air, land on the hood of his truck, fly off the truck, and
then land on the street. Wright testified that, after the
impact, Appellant’s truck braked briefly, swerved into the
middle lane, and then sped away at an even greater
speed, without ever coming to a complete stop.
Joseph Stickel, who, at the time of the accident, was
standing on the median strip separating Delaware Avenue,
testified that he witnessed Appellant’s truck come around
the corner, hit Cintron, and then keep going. Stickel
stated that he heard “someone slamming on their brakes,
and [he] looked up and [Cintron] got hit.” Based on
Appellant’s truck hitting Cintron, Stickel observed Cintron’s
body fly down the road and over the truck, and then land
in the middle of the road.
After Appellant’s truck hit Cintron, Robert DeGuzman,
who was working a security detail at Roxxy nightclub,
entered his vehicle in an attempt to locate the person who
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hit Cintron. When he reached Interstate 95, he came upon
Appellant’s truck, which matched the description of the
truck that hit Cintron, and he began to follow it.
DeGuzman testified that Appellant was swerving through
traffic. When Appellant stopped at a house at the corner
of Madison and Tilton Streets, DeGuzman ordered
Appellant out of the truck and handcuffed him. DeGuzman
stated that Appellant smelled strongly of alcohol, and
Appellant said, “I’m sorry, I didn’t mean to do it. I’m
drunk.” DeGuzman observed that Appellant’s truck was
damaged on the driver’s side, including the windshield,
which was “squashed all the way down.”
Officer Michael DeRose arrived at Madison and Tilton
Streets after DeGuzman had stopped Appellant. DeRose
testified that, when he arrested Appellant, he noticed a
very strong odor of alcohol on Appellant. Further, he
stated that Appellant “kept saying over and over and over
again that he was sorry.”
After Appellant was arrested, Officer Robert Reppert
interviewed him. Reppert testified that Appellant
consented to a blood test, which was performed at 1:40
a.m. He further testified that he questioned Appellant
about the incident and that, Appellant stated that he had
been at McFadden’s Bar and had consumed “several shots
and several beers” over the course of two or three hours.
Appellant further stated to Reppert that he then got into
his truck and headed to his cousin’s house because he
“didn’t think [he] could make it home.” Appellant told
Reppert that, as he was driving on Delaware Avenue, he
saw pedestrians crossing the street approximately 50 to
100 yards in front of him, but he accelerated to “make the
next light.” When asked if he struck any people with his
truck, Appellant stated, “Not to my knowledge, no, sir.”
Appellant admitted to Reppert that his truck had not been
damaged earlier in the evening.
Richard D. Cohn, Ph.D., testified as an expert for the
Commonwealth in the areas of pharmacology and forensic
toxicology. Cohn testified that Appellant’s blood alcohol
content was .183% at the time his blood was drawn. Cohn
concluded that Appellant would have consumed a
minimum of ten or eleven drinks for his blood alcohol to be
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.183% at the time his blood was drawn. Cohn further
testified that, in his opinion, Appellant was incapable of
safely operating a vehicle.
Officer William Lackman of the Philadelphia Police
Department’s Accident Investigation Division testified as
an expert on accident reconstruction on behalf of the
Commonwealth. Lackman testified that Citron’s body
came to rest about 178 feet north of where she was
originally hit by Appellant’s truck, and that she was either
airborne or on the hood of the truck for 135 feet. Lackman
stated that the Airbag Control Module of Appellant’s truck
confirmed that he was traveling between 59 and 60 miles
an hour when he hit Cintron, and that Cintron was
traveling approximately 50 miles per hour when she flew
off the hood of the truck. Lackman further stated that
there were skid marks at the scene, which indicated that
Appellant applied his brakes after striking Cintron, but
never came to a complete stop. Lackman concluded that
Appellant’s truck striking Cintron caused her death.
Commonwealth v. Dunphy, 20 A.3d 1215, 1217-18 (Pa. Super. 2011)
(citations and footnote omitted).
We add that during his opening argument, Appellant’s counsel argued
Appellant was guilty “beyond a reasonable doubt” of homicide by vehicle
while driving under the influence, accidents involving personal injury or
death, and driving under the influence. N.T., 7/14/09, at 49-50. Mid-trial,
based upon perceived conflicting evidence, Appellant’s counsel stated he
may retract his opening argument and argue Appellant was innocent of
homicide by vehicle. N.T. Trial, 7/15/09, at 114. The trial court was less
than pleased and, at sidebar, expressed apparent frustration at what it
believed was counsel’s lack of preparation:
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The court: Well, the problem I have is the way you opened
to the jury in this case, you took a lot of issues out of the
case. And one of the issues you took out of the case was
causation.
[Commonwealth]: Right.
The court: You didn’t tell the jury that at the end of the
case you were going to ask them to find that it wasn’t
because he was drunk that he hit the pedestrian; that it
was because he was speeding that he hit the pedestrian;
that being drunk had nothing to do with it. You didn’t say
that.
You said, “At the end of the case you’re going to find
beyond a reasonable doubt that he’s guilty of homicide by
vehicle while DUI,” which carries—remember I asked you,
does your client know that’s a mandatory three to six
years? And you said, yes, you had discussed that with
him.
Now I don’t know what to colloquy him on exactly
because I don’t know what his perception is of what you’re
doing. And I’m not sure what you’re doing, [Appellant’s
counsel]. You seem to have put an issue back in the case,
or try to.
In other words, we can put the issue back in the case,
we can ask the jury to decide it and to disregard—you can
ask the jury; I wouldn’t. I’ll just charge them on the law
but to disregard what you said earlier. And I have to now
figure out with your client when I colloquy him, is he to
say he understands all this?
[Appellant’s counsel]: We’ve discussed it completely, Your
Honor.
The court: That now he understands that you’re trying to
put an issue in the case that you originally admitted to the
jury?
[Appellant’s counsel]: Yes, he does, Your Honor.
* * *
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The court: . . . I mean, this is the first time you figured out
that maybe you could argue that it wasn’t the alcohol, it
was the speed?
[Appellant’s counsel]: Your Honor, I—I really can say that
it was as the testimony was coming about that I realized
that his calculation was from 300 feet away, but there was
a possibility that from the statement that it was 150 feet
away. And when that calculation is made, it only leaves
ten feet—if the jury assumes that it was actually 150 feet
away, it only leaves ten feet for the avoidance of an
accident.
The court: What was only 150 feet away?
[Appellant’s counsel]: If the range that [Appellant] gave
that he said he observed people on the roadway was 50 to
a hundred yards and Officer Lackman indicated that that
was 150 to 300 feet—
The court: Yes.
[Appellant’s counsel]: —all Officer Lackman’s assumptions
were based on 300 feet.
The court: [Appellant’s] statement.
[Appellant’s counsel]: Right.
The court: Yes.
[Appellant’s counsel]: But if the jury believes that it was
150 feet away and that—
The court: On what basis would they believe that?
[Appellant’s counsel]: It was, according to [Appellant], 50
yards, which would be 150 feet, or 300 feet.
The court: Yes.
[Appellant’s counsel]: If they reject that it was 300 feet
away.
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The court: But you always had your client’s statement, so
you always knew that calculation; yes?
[Commonwealth]: [Appellant] said in his statement he saw
the pedestrians in the road 50 to a hundred yards away.
The court: Yes.
[Commonwealth]: So [Appellant] perceived the hazard in
the road. This isn’t a situation that he didn’t perceive it.
The court: No. I just don’t understand why having had
these numbers from the day you [i.e., Appellant’s
counsel,] first got your client’s statement, which was in the
first discovery packet, which was at the time of his arrest—
[Appellant’s counsel]: I didn’t have the conclusion, Your
Honor, that it was 87.9 feet per second, which would
translate into 140 feet at 1.6 seconds of delay time.
[Commonwealth]: He had 300 feet of notice that there
were people crossing the road. He didn’t react.
[Appellant’s counsel]: 150 to 300 feet, whichever the jury
decides is accurate.
The court: Well, it’s his own testimony.
[Commonwealth]: Right. It’s his statement; that he
perceived the danger in the road.
The court: But I just don’t understand why you didn’t see
this possibility of arguing this a long time ago and avoid
this problem that we now have of where are we in this
case.
What are the charges that he’s admitting?
I take it he’s admitting to leaving the scene of the
accident; he’s admitting to DUI; and he’s admitting to—
that’s it. And that the other two charges you think should
go to the jury for their decision. And then you’re asking
for an involuntary manslaughter charge.
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[Appellant’s counsel]: Yes, Your Honor.
The court: On the basis that it could have been the shorter
distance.
[Appellant’s counsel]: Yes.
The court: And then you think you can argue to the jury
that if it was the shorter distance, nobody could have
avoided the accident?
[Appellant’s counsel]: That’s what my argument will be,
Your Honor, yes.
The court: All right. Let’s go. And you can make your
motion and I’ll do the colloquy.
[Appellant’s counsel]: Yes.
Id. at 117-24 (capitalization omitted).
On July 15, 2009, after the parties presented their
evidence and arguments to the jury, Appellant pleaded
guilty to driving under the influence of alcohol and accident
involving death or personal injury. The jury subsequently
found Appellant guilty of third degree murder. On
September 16, 2009, the trial court sentenced Appellant to
seven to fourteen years’ imprisonment for third degree
murder; a consecutive term of one to two years’
imprisonment for accident involving death or personal
injury; and sixth months’ probation for driving under the
influence of alcohol, to be served concurrently with his
other sentences.
Dunphy, 20 A.3d at 1218. Appellant appealed, and this Court affirmed on
May 6, 2011. See id. Appellant did not file a petition for allowance of
appeal with our Supreme Court.
On April 13, 2012, Appellant timely filed a counseled PCRA petition.
On October 26, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice. On
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November 30, 2012, the PCRA court heard arguments on its Rule 907
notice. On December 17, 2012, the PCRA court dismissed Appellant’s PCRA
petition. Appellant timely appealed. The PCRA judge retired on December
31, 2012, and the case was reassigned to a new judge.
On January 23, 2013, the PCRA court ordered Appellant to comply with
Pa.R.A.P. 1925(b) within twenty-one days. Appellant’s PCRA counsel filed an
untimely Rule 1925(b) statement on February 27, 2013.2 Because the PCRA
judge had retired at the end of 2012, a responsive Rule 1925(a) decision
was not prepared.
Appellant raises the following issue:
Whether, in violation of the United States and
Pennsylvania constitutions, the PCRA court erred in
dismissing [Appellant’s PCRA] petition on grounds of
ineffective assistance of counsel without an evidentiary
hearing?
Appellant’s Brief at 2.
Appellant contends that the PCRA court should have held an
evidentiary hearing when the trial court announced at trial that his counsel
failed to prepare for trial and was causing the jury to be confused with an
abrupt change of defense strategy. Id. at 22. Appellant maintains that the
record reflects trial counsel had no excuse for his confusion and lack of
2
We decline to find waiver, however. Cf. Commonwealth v. Britt, 83 A.3d
198, 203 (Pa. Super. 2013) (holding untimely filing of Rule 1925(b)
statement by counsel is per se ineffective assistance of counsel).
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preparation. He insists trial counsel was ineffective for failing to object to
the trial court’s mid-trial guilty plea colloquy as counsel was unprepared for
trial. We hold Appellant is due limited relief, as set forth below.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1267 (Pa. 2008). With respect to claims of counsel’s
ineffectiveness, we state the following as background:
[C]ounsel is presumed to have provided effective
representation unless the PCRA petitioner pleads and
proves that: (1) the underlying claim is of arguable merit;
(2) counsel had no reasonable basis for his or her conduct;
and (3) Appellant was prejudiced by counsel’s action or
omission. To demonstrate prejudice, an appellant must
prove that a reasonable probability of acquittal existed but
for the action or omission of trial counsel. A claim of
ineffective assistance of counsel will fail if the petitioner
does not meet any of the three prongs. Further, a PCRA
petitioner must exhibit a concerted effort to develop his
ineffectiveness claim and may not rely on boilerplate
allegations of ineffectiveness.
Commonwealth v. Perry, 959 A.2d 932, 936 (Pa. Super. 2008)
(punctuation marks and citations omitted). Our Supreme Court has made
“clear this Court’s strong preference that counsel be heard from before being
found ineffective.” Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa.
2010).
In determining whether counsel’s action was reasonable, the court
does not consider “whether there were other more logical courses of action”
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counsel could have pursued, but simply examines whether counsel’s decision
had any reasonable basis. Commonwealth v. Washington, 927 A.2d 586,
594 (Pa. 2007). Conversely, to merit relief, counsel’s action, given all the
other available alternatives, must be “so unreasonable that no competent
lawyer would have chosen it.” Commonwealth v. Miller, 431 A.2d 233,
234 (Pa. 1981) (citation omitted).
A failure to satisfy any prong of the test for ineffectiveness requires
rejection of the claim. Washington, 927 A.2d at 594. “In the context of a
PCRA proceeding, [the defendant] must establish that the ineffective
assistance of counsel 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.’” Id.
(citations omitted). The defendant must establish actual prejudice, or
demonstrate that the alleged act of ineffectiveness falls within a narrow
range of circumstances in which there is a presumption of prejudice.
Commonwealth v. Reed, 971 A.2d 1216, 1224-25 (Pa. 2009).
Given the unique set of facts and trial counsel’s strategy, as set forth
above, and the absence of any PCRA court opinion, out of an abundance of
caution, we think it prudent to remand for an evidentiary hearing at which
trial counsel can testify. See Colavita, 993 A.2d at 895; see also
Washington, 927 A.2d at 594; Miller, 431 A.2d at 234. The PCRA court
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shall also render its findings and conclusions on the record and prepare a
written opinion.
Order vacated. Case remanded for an evidentiary hearing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2015
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