J-A34041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAUL NELSON HANSEN
Appellant No. 1945 MDA 2014
Appeal from the PCRA Order August 8, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003860-2010
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 06, 2016
Paul Hansen (“Appellant”) appeals from an order denying his first,
timely petition under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et
seq. We affirm.
The PCRA court recounts the underlying factual and procedural history
as follows:
Appellant was convicted of first degree murder (18 Pa.C.S. §
2502(a)), terroristic threats (18 Pa.C.S. § 2706(a)(1)), and
simple assault (18 Pa.C.S. § 2701(a)(1)) following a jury trial
held [on] July 11 through July 13, 2011. On August 24, 2011,
we sentenced Appellant to the mandatory term of life
imprisonment on the first-degree murder conviction. Appellant
filed an appeal to the Superior Court challenging the weight and
sufficiency of the evidence, and the Superior Court affirmed the
judgment of sentence by way of [a] decision dated August 17,
2012 [at] 1856 MDA 2011. Appellant filed a PCRA petition on
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April 30, 2014,[1] and we held an evidentiary hearing on August
8, 2014. Appellant was present at the PCRA hearing with
counsel. Appellant now seeks relief from our order of August 8,
2014 denying his PCRA petition.
Appellant’s conviction stems from an altercation that occurred on
June 12, 2010. Appellant attended a house party hosted by the
victim, Melissa Barnes. When attempting to leave the party,
Appellant’s vehicle became stuck in the mud of a makeshift dirt
road leading to the victim’s house, and Appellant enlisted the
assistance of others to dislodge his vehicle. A confrontation
ensued between Appellant and one such volunteer, Holly
McMichael, who made remarks regarding Appellant’s driving. At
that point Appellant placed Ms. McMichael in a chokehold and
threatened to break her neck. N.T. Trial, 7/11/11 at 183. Ms.
Barnes - upset by Appellant’s conduct - quickly approached the
scene and began swearing at and pushing Appellant. Appellant
reached to his side, pulled out a pistol, and shot Ms. Barnes in
the head. N.T. Trial, 7/11/11 at 111.
PCRA Court Opinion, 1/14/15, at 1-2. The jury rejected Appellant’s defense
that the shooting was an accident.
On June 1, 2015, counsel for Appellant filed a Turner/Finley2 letter
brief in this Court and a petition for leave to withdraw as counsel.
Before we may address the merits of Appellant’s claims, “we must
determine if counsel has satisfied the requirements to be permitted to
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1
We note that after the Superior Court affirmed Appellant’s judgment of
sentence, he filed a petition for allowance of appeal in the Supreme Court,
which denied this petition on February 4, 2013. Appellant did not appeal to
the United States Supreme Court. Thus, his one-year limitation period for
filing a PCRA petition began running ninety days after February 4, 2013, or
on Monday, May 6, 2013. See 42 Pa.C.S. § 9545(b)(1), (3). Appellant filed
his PCRA petition less than one year later.
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa.1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).
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withdraw from further representation.” Commonwealth v. Freeland, 106
A.3d 768, 774 (Pa.Super.2014). Competent PCRA counsel must conduct an
independent review of the record before we can authorize counsel’s
withdrawal. Id. The independent review
requires counsel to file a ‘no-merit’ letter detailing the nature
and extent of his review and list[ing] each issue the petitioner
wishes to have examined, explaining why those issues are
meritless. The PCRA court, or an appellate court if the no-merit
letter is filed before it, then must conduct its own independent
evaluation of the record and agree with counsel that the petition
is without merit.
Id. (internal citation omitted). PCRA counsel must also
serve a copy on the petitioner of counsel’s application to
withdraw as counsel, and must supply to the petitioner both a
copy of the ‘no-merit’ letter and a statement advising the
petitioner that, in the event that the court grants the application
of counsel to withdraw, he or she has the right to proceed pro se
or with the assistance of privately retained counsel.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super.2011) (quoting
Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.2006), abrogated in
part by Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa.2009)).
Here, counsel reviewed the record and the applicable law, listed the
issues Appellant wished to have examined, and explained why the issues are
meritless. Counsel also mailed a copy of the no-merit letter and a copy of
his motion seeking permission to withdraw as counsel to Appellant and
informed Appellant of his right to proceed pro se or with privately-retained
counsel to raise any points he deemed worthy of consideration. Following
receipt of counsel’s letter, Appellant filed a pro se response requesting that
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this Court deny counsel’s motion to withdraw and direct him to file a brief on
the merits. Accordingly, we determine that PCRA counsel substantially
complied with Turner/Finley.
We will now address the merits of the claim raised. Appellant did not
file a pro se brief or a brief by privately-retained counsel, so we will review
the merits of the claim raised in his 1925(b) statement and discussed in the
Turner/Finley letter.
Appellant raises nine issues on appeal, all of which concern alleged
ineffectiveness of counsel:
1. Trial counsel was ineffective for failing to present evidence of
Appellant’s mental health diagnoses and diminished capacity;
2. Trial counsel was ineffective for not introducing testimony to
establish the victim’s height and weight;
3. Trial counsel was ineffective for failing to object to statements
regarding Appellant’s knowledge or experience in the martial
arts;
4. Trial counsel was ineffective for failing to highlight on cross
examination Hudson Bethard’s statement that several
individuals approached the scene of the altercation;
5. Trial counsel was ineffective for failing to present evidence
that Appellant’s pistol was carried in a left- handed holster,
despite testimony indicating Appellant brandished and fired
the weapon using his right hand;
6. Trial counsel was ineffective for failing to present character
witnesses at trial;
7. Trial counsel was ineffective for advising Appellant not to
testify at trial;
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8. Trial counsel did not adequately prepare for the trial or
explore various defenses; and
9. Appellate counsel was ineffective for failing to raise the above
issues on direct appeal.
PCRA Court Opinion, at 2-3. Our standard of review from the denial of post-
conviction relief “is limited to examining whether the court’s determination is
supported by the evidence of record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) that the underlying claim has merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) but for
the errors or omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different.” Ousley, 21 A.3d at
1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279
(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove
any one of the three [ineffectiveness] prongs results in the failure of
petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).
With regard to prong (2) of the ineffective assistance standards,
our courts repeatedly have held or implied that an attorney’s
basis for making one strategic or tactical decision over another,
whether at trial or on appeal, is not subject to judicial
speculation. The reasonableness of an attorney’s strategic or
tactical decisionmaking is a matter that we usually consider
when evidence has been taken on that point.
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Commonwealth v. DuPont, 860 A.2d 525, 533 (Pa.Super.2004).
Appellant’s first four arguments allege that trial counsel failed to take
some action to bolster Appellant’s self-defense claim. The PCRA court
reasoned:
Appellant … has maintained from the day of the shooting that
the firing was purely accidental. N.T. PCRA, 8/8/14 at 7-8. In
other words, no self-defense claim was properly before the jury.
As such, Appellant’s state of mind was not at issue because it
had no bearing on whether the trigger was pulled accidently.
Trial counsel explained his rationale for not introducing the self-
defense argument as follows:
[T]he night that this incident occurred [Appellant]
actually was arrested by an off-duty police officer
who was a neighbor, and he was taken into the
police station where he made a pretty full and
thorough statement, and I felt we were pretty much
locked into that statement where he said he kept
telling the police officer it was a mistake. It was not
on purpose. It was a mistake. My recollection is
there was no talk about being self-defense in there,
and to come in and go in front of a jury and change
what we said happened I thought was just a fatal
flaw. It was never going to work in front of a jury...
N.T. PCRA 8/8/14 at 32-33. Appellant agreed to take trial
counsel’s advice in this regard. N.T. PCRA, 8/8/14 at 7-8.
Appellant made this decision voluntarily after being colloquied by
the court and taking a recess to discuss the matter with counsel.
N.T. Trial, 7/11/11 at 366-71. We find Appellant failed to
demonstrate this course of action was chosen by counsel without
a reasonable basis. To the contrary, we find the trial strategy to
be reasonable in light of Appellant’s prior statements to police
and the record as a whole.
PCRA Court Opinion, at 4. We agree with the PCRA court’s analysis that trial
counsel made a reasonable tactical decision not to claim self-defense.
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Appellant’s fifth argument is that that trial counsel was ineffective for
failing to present evidence that Appellant carried his pistol in a left-handed
holster. The PCRA court correctly determined that this claim lacked arguable
merit, that trial counsel had good reason not to raise it, and that it did not
cause Appellant prejudice:
Appellant believes this [fact] is important in light of eyewitness
testimony that Appellant had pulled the pistol and shot the
victim with his right hand. We find this claim has no merit.
Appellant has never contested the undisputed evidence that he
brandished the pistol and shot the victim. Rather, his contention
is that the shooting was an accident. Trial counsel commented
that the lack of focus on the left-handed holster was intentional,
as he felt picking at irrelevant details would only insult the jury.
N.T. PCRA, 8/8/11 at 38. Further, Appellant has not
demonstrated prejudice resulting from this decision.
PCRA Court Opinion, at 5. Based on this analysis, we conclude that this
argument does not entitle Appellant to relief.
Appellant’s sixth argument is that trial counsel failed to present
character witnesses. Trial counsel may be ineffective if he fails to
investigate, interview, and call character witnesses and has no strategic
basis for failing to do so. Commonwealth v. Weiss, 606 A.2d 439, 442-43
(Pa.1992). To establish that trial counsel is ineffective for failing to call
witnesses, a defendant must show, in addition to meeting the general
standard to establish ineffective assistance of counsel, that the witnesses
existed, were available and willing to testify on defendant’s behalf; that
counsel knew of or should have known of the existence of the witnesses;
and that defendant was prejudiced by the absence of the testimony which
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would have been offered. Commonwealth v. Brown, 767 A.2d 576, 581-
82 (Pa.Super.2001). Among other things, a defendant must show the
proposed testimony would have been beneficial, i.e., the absence of other
good- character evidence “was so prejudicial as to have denied the
[defendant] a fair trial.” Commonwealth v. Johnson, 966 A.2d 523, 536
(Pa.2009). Finally, trial counsel will not be found ineffective for failing to call
a witness whose testimony would be cumulative. Commonwealth v.
Gibson, 951 A.2d 1110, 1134 (Pa.2008).
The record does not support Appellant’s claim that trial counsel failed
to call character witnesses, because counsel called Appellant’s ex-wife as a
character witness. Appellant argues, however, that trial counsel should have
called additional character witnesses. Trial counsel testified at the PCRA
hearing, however, that he did not recall Appellant asking him to introduce
additional character witnesses. N.T. PCRA, 8/8/14 at 36. Counsel also
testified that had Appellant identified an additional character witness, he
would have “certainly” spoken with that witness to determine whether his or
her testimony would be helpful. Id. at 41-42. Appellant failed to produce
any testimony or affidavits of uncalled witnesses at the PCRA hearing. Nor
did Appellant identify what character trait was at issue or what the nature of
the uncalled witness’s testimony would have been. Finally, Appellant failed
to demonstrate how the testimony of additional character witnesses would
have been beneficial to him and not cumulative. Accordingly, we agree with
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the PCRA court that Appellant’s character witness argument lacked arguable
merit.
In his seventh argument, Appellant contends that trial counsel was
ineffective for advising him against testifying in his own defense during trial.
During trial, Appellant stated at the conclusion of the Commonwealth’s case-
in-chief that he decided not to testify based on counsel’s advice. N.T. Trial,
7/11/11 at 356-66. Appellant admitted during PCRA proceedings that it was
his decision not to testify. N.T. PCRA, 8/8/14 at 13. Trial counsel testified
that he discussed the advantages and disadvantages of testifying with
Appellant. Trial counsel advised Appellant that testifying was not in his best
interests, because trial counsel was concerned that Appellant would claim
self-defense and thus contradict counsel’s defense that the shooting was
accidental. Id. at 33. The PCRA court concluded, and we agree, that
counsel’s advice was reasonable trial strategy. Moreover, the jury heard
Appellant’s audiotaped statement to police on the night of the incident in
which Appellant claimed that the shooting was an accident. Testifying would
have subjected Appellant to cross-examination unnecessarily, because his
audiotaped statement communicated his version of the events without him
taking the stand.
Appellant’s eighth argument is that trial counsel did not adequately
prepare for trial. The thrust of this argument appears to be that the
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Commonwealth presented expert witnesses but Appellant did not. The PCRA
court correctly determined that this argument lacked merit:
[T]he defense had hired Mr. Blumberg as an expert to explore
Appellant’s psychological diagnoses. [Trial counsel testified that]
Mr. Blumberg did not testify because ‘he didn’t think he could
give us anything that was positive at the trial.’ N.T. PCRA,
8/8/14 at 35. Additionally, the defense hired an expert to
determine the trigger pull of the pistol. While he did not
ultimately testify, he was available and on call at the time of the
trial. The Commonwealth’s expert, however, admitted the points
the defense was trying to make, hereby negating the need for
the defense expert to testify. N.T. PCRA 8/8/14 at 39-40. Trial
counsel is not ineffective for failing to call an expert witness if
counsel can effectively cross examine the prosecution witness
and elicit helpful testimony. See Commonwealth v. K.M., 680
A.2d 1168, 1172 (Pa.Super.1996).
PCRA Court Opinion, at 6-7.
In his ninth and final argument, Appellant claims that appellate
counsel was ineffective for failing to raise the foregoing issues on direct
appeal. This argument fails because none of the foregoing issues would
have entitled Appellant to relief.
For these reasons, we conclude that the PCRA court properly dismissed
Appellant’s PCRA petition.
Order affirmed. Application for leave to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2016
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