Com. v. Crews, D.

J-S39004-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DAVID CREWS

Appellant No. 1725 MDA 2015

Appeal from the PCRA Order Dated May 21, 2015
In the Court of Common Pleas of Luzerne County
Civil Division at No: CP-40-CR-0003228-2010

BEFORE: STABILE, PLATT *, and STRASSBURGER*, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 11, 2016

Appellant David Crews appeals from the May 21, 2015 order of the

Court of Common Pleas of Luzerne County (“PCRA court”), denying his

petition for collateral relief under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46. PCRA counsel has filed a no-merit brief and

petitioned to withdraw under Turner/Finley.1 Upon review, we affirm and

grant the petition to withdraw.

The facts and procedural history of this case are undisputed. As

summarized by a prior panel of this Court in Appellant’s direct appeal:

Appellant was serving a sentence on an unrelated matter
at the State Correctional Institution at Dallas. On October 14,
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S39004-16

2009, appellant was involved in an incident with another inmate
in the showers. Appellant, who was aware that he had tested
positive for the HIV virus, threw fecal matter at five prison
guards; some of the guards were actually hit in the face and
mouth. Appellant also later threatened another guard by
averring he would throw feces at him. On September 7, 2010,
Appellant was charged with five counts of aggravated assault, 18
Pa.C.S.A. § 2702(a)(2); five counts of assault by prisoner, 18
Pa.C.S.A. § 2703(a); five counts of simple assault, 18 Pa.C.S.A.
§ 2701(a)(3); five counts of recklessly endangering another
person, 18 Pa.C.S.A. § 2705; and one count of terroristic threats
with intent to terrorize another, 18 Pa.C.S.A. § 2706(a)(1).

On October 18, 2011, Appellant entered an open guilty
plea to five counts of assault by prisoner and one count of
terroristic threats with intent to terrorize another. Following the
plea, Appellant was immediately sentenced to an aggregate term
of 6 to 12 years’ incarceration consecutive to the sentence he
was currently serving. Thereafter, Appellant accused counsel of
misrepresenting the Commonwealth’s plea offer concerning the
statutory consecutive sentence. Appellant requested substitute
conflict counsel and presented an oral motion to withdraw his
guilty plea. The trial court denied his request for new counsel
but granted his motion to withdraw his guilty plea.

A jury trial commenced on October 18, 2011 and Appellant
was convicted of the same charges to which he pled guilty. At
the end of the trial, Appellant acted out and the trial court found
him to be in contempt. On November 29, 2011, appellant was
sentenced to an aggregate term of 10 to 20 years’ incarceration
consecutive to the sentence Appellant was previously serving;
thus, the court imposed an increased sentence. Furthermore,
Appellant was sentenced to an additional six months consecutive
to all other sentences on the contempt count.

Commonwealth v. Crews, No. 614 MDA 2012, unpublished memorandum

at 1-3 (Pa. Super. filed January 31, 2013). We affirmed Appellant’s

judgment of sentence. Our affirmance was upheld by our Supreme Court.

Commonwealth v. Crews, 70 A.3d 809 (Pa. 2013).

On July 30, 2013, Appellant pro se filed a PCRA petition, raising a

plethora of ineffective assistance of counsel claims. PCRA court appointed

counsel, who filed an amended PCRA petition. PCRA court held a hearing on

May 21, 2015, following which it denied Appellant relief. Appellant timely

-2-
J-S39004-16

appealed to this Court. In his Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, Appellant raised five assertions of error:

1. [T]rial counsel was ineffective in failing to obtain video
footage near where the incident occurred, video footage that
the Commonwealth possessed.

2. Trial counsel was ineffective in failing to properly use
inconsistent statements of witnesses that would be
inconsistent with their statements in the Affidavit of Probable
Cause.

3. Trial counsel was ineffective in failing to object to two jurors
who knew corrections officer and victim, Joe Wilds.
4. Trial counsel was ineffective on appeal for failing to properly
challenge the underlying conviction.

5. Trial counsel was ineffective in failing to challenge the Pre-
Sentence Investigation which was incorrect and listed it in
[sic] improper conviction that increased the prior record
score.

Rule 1925(b) Statement, 7/14/15. In response, the PCRA court issued a

Pa.R.A.P. 1925(a) opinion, concluding that, based on the testimony

presented at the PCRA hearing, Appellant’s first and third assertions of error

lacked a factual predicate. Resolving any conflicts in testimony against

Appellant, the PCRA court determined that there was no evidence that a

video footage of the fecal flinging incident existed or that counsel was aware

that some jurors knew the corrections officer. With respect to Appellant’s

second assertion of error, the PCRA court concluded that he failed to identify

any inconsistent statements by the Commonwealth’s witnesses. Addressing

Appellant’s fourth assertion of error, the PCRA concluded that Appellant

would not have been able to demonstrate prejudice because sufficient

-3-
J-S39004-16

evidence of record supported his convictions for assault.2 Finally, the PCRA

court determined that Appellant’s PSI-related claim lacked merit.3

On February 17, 2016, Appellant’s PCRA counsel filed in this Court an

application to withdraw as counsel and filed a no-merit letter, wherein

counsel repeats the same assertions of error raised in Appellant’s Rule

1925(b) statement. Turner/Finley Brief at 1.

Before we may consider this issues, we must address whether PCRA

counsel has met the requirements of Turner/Finley. For PCRA counsel to

withdraw under Turner/Finley in this Court:

(1) PCRA counsel must file a no-merit letter that details the
nature and extent of counsel’s review of the record; lists
the appellate issues; and explains why those issues are
meritless.

(2) PCRA counsel must file an application to withdraw; serve
the PCRA petitioner with the application and the no-merit
letter; and advise the petitioner that if the Court grants
the motion to withdraw, the petitioner can proceed pro se
or hire his own lawyer.

(3) This Court must independently review the record and
agree that the appeal is meritless.

____________________________________________

2
Similarly, the record would not have supported any argument that
Appellant’s verdict was against the weight of the evidence.
3
Our review of the record reveals that the calculation of Appellant’s prior
record score was proper and that Appellant acquiesced to the same. Even if
the prior record score had included an incorrect conviction, the inclusion or
exclusion of such conviction would not have had an impact on Appellant’s
classification as a repeat felony offender (RFEL). See 204 Pa.Code §§
303.4(a)(2), 303.16(a).

-4-
J-S39004-16

See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011)

(citing or quoting Turner, Finley, Commonwealth v. Pitts, 981 A.2d 875

(Pa. 2009), and Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.

2008), overruled in part by, Pitts).

We find that PCRA counsel has complied with Turner/Finley. PCRA

counsel has petitioned for leave to withdraw and filed a Turner/Finley no-

merit letter. Finally, PCRA counsel informed Appellant of his right to hire a

new lawyer or file a pro se response.4

We now turn to this appeal to determine whether it is indeed

meritless. “On appeal from the denial of PCRA relief, our standard of review

requires us to determine whether the ruling of the PCRA court is supported

by the record and free of legal error.” Widgins, 29 A.3d at 819.

After careful review of the record on appeal, and the relevant case law,

we conclude that the PCRA court’s Rule 1925(a) opinion, authored by Judge

Fred A. Pierantoni III, cogently disposes of issues raised in Appellant’s Rule

1925(b) statement. See PCRA Court Opinion, 8/19/15, at 20-23. Moreover,

PCRA counsel has complied with Turner/Finley. As stated, we have

reviewed the record, and we are convinced that no meritorious appellate

issues exist. We, therefore, affirm the PCRA court’s May 21, 2014 order

____________________________________________

4
In his pro se response, Appellant appears to raise only a single
ineffectiveness challenge. He argues that his trial counsel was ineffective in
failing to seek disqualification of jurors who allegedly knew the victim.

-5-
J-S39004-16

denying Appellant PCRA relief. We direct that a copy of the PCRA court’s

August 19, 2015 Rule 1925(a) opinion be attached to any future filings in

this case.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016

-6-
 ) ) Circulated 06/30/2016 04:26 PM

COMMONWEALTHOF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS

OF LUZERNE COUTNY
v.
-CRIMINAL-LAW
DAVID CREWS,

Defendant
: NO: 3228 OF 2010
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The procedural history in the above captioned matter is extensively set

forth in both the trial court opinion of April 17, 2012 by Senior Judge

Kenneth D. Brown and the Superior Court Memorandum of January 31,

2013, affirming the defendant's sentence.1

As observed by Superior Court, on October 14, 2009 David Crews

was an inmate at the State Correctional Institute at Dallas. Defendant was

aware that he had tested positive for the HIV virus and threw fecal matter at

five prison guards; some of the guards were actually hit in the face and

mouth. The defendant later threatened another guard by stating he would

throw feces at him. Almost a year later, on September 7, 2010 the defendant

1
Memorandum ( No. 614 MDA 2012); Ford Elliot, P.J.E., Panella And Allen, JJ.

1

.)
was charged with five counts of aggravated assault, five counts of assault by

prisoner, five counts of simple assault, five counts of recklessly endangering

another person and one count of terroristic threats.

As observed by Judge Brown, the defendant was originally

represented by the Public Defender's Office of Luzerne County and

thereafter, on September 7, 2011, conflict counsel was appointed as stand-by

counsel. Pro se pretrial motions filed by the defendant were dismissed and

he thereafter entered a negotiated guilty plea. Following the guilty plea,

Judge Brown immediately sentenced the defendant to an aggregate sentence

of 7 to 14 years to be served consecutive to the sentence he was currently

servmg.

The defendant then accused conflict counsel of misrepresenting the

Commonwealth's plea offer regarding the consecutive sentence and

requested substitute counsel be appointed and to withdraw his guilty plea.

The defendant additionally made a motion to withdraw his prose status and

requested conflict counsel represent him during trial.

Subsequent to a jury trial concluding on October 19, 2011 the

defendant was found guilty of five counts of assault by a prisoner; five

counts of simple assault; five counts of recklessly endangering another

person and one count of terroristic threats.
2
 On October 29, 2011 Judge Brown sentenced the defendant to an

aggregate term of 10 to 20 years at a state correctional facility which

sentence was to be served consecutive to and not concurrent with the

sentence the defendant was presently serving.

The defendant filed an appeal from that determination arguing the

sentence imposed violated the double jeopardy clause of both the United

States and Pennsylvania Constitution and further that the court abused its

discretion in sentencing in the aggravated range of the sentencing guidelines.

As previously indicated, on January 3 1, 2013 Superior Court issued a

memorandum affirming the sentence imposed by Judge Brown. The court

observed that during the course of the jury trial, the trial court gathered more

information about the nature and extent of the crimes Mr. Crews committed.

Further, Superior Court noted a trial court is not precluded or forbidden from

extending a proper degree of leniency in return for a guilty plea.

A prose PCRA petition was filed on July 30, 2014 and on August 6,

2014 this court appointed Jeffrey A. Yelen, Esquire as counsel for the

petitioner. A supplement to the PCRA petition was filed on December 23,

2014. On that date counsel also submitted a "COMPREHENSIVE BRIEF

3
IN SUPPORT OF DEFENDANT'S PRO SE AND COUNSEL'S

SUPPLEMENTAL PETITION FOR POST-CONVICTION COLLATERAL

RELIEF UNDER THE POST -CONVICTION RELIEF ACT". The

Commonwealth, on January 9, 2015 filed a motion to dismiss the

aforementioned supplemental petition. Additionally, on January 26, 2015

the Commonwealth submitted a responsive brief.

A PCRA hearing was conducted on May 21, 2015 at the conclusion of

which this court denied and dismissed the petition.

A notice of appeal was filed on April 27, 2015 and an order issued

pursuant to Pa.R.A.P. 1925 (b) on June 25, 2015.

Appellate counsel submitted a concise statement, which is essentially

a verbatim repetition of the purported issues set forth in the aforementioned

supplement to the PCRA petition, on July 14, 2015. The Commonwealth

submitted a response on July 21, 2015.

ISSUES RAISED

The following is a verbatim iteration of the errors complained of on

appeal.

4
 1. Defendant alleges that trial counsel was ineffective in failing to

obtain video footage near where the incident occurred, video

footage that the Commonwealth possessed.

2. Trial counsel was ineffective in failing to properly use inconsistent

statements of witnesses that would be inconsistent with their

statements in the Affidavit of Probable Cause.

3. Trial counsel was ineffective in failing to object to two jurors who

knew corrections officer and victim, Joe Wilds.

4. Trial counsel was ineffective on appeal for failing to properly

challenge the underlying conviction.

5. Trial counsel was ineffective in failing to challenge the Pre-

Sentence Investigation which was incorrect and listed it in

improper conviction that increased the prior record score.

HEARING SUMMARY

Robert M. Buttner, Esquire was initially called and indicated he was

assigned to Mr. Crews in his then capacity as conflict counsel in Luzerne

County. (May 21, 2015 N.T. 6). Attorney Buttner would serve as appellate

counsel and initially discussed the matter with defendant's trial counsel,

David Lampman, Esquire. (Id. N.T. 7).
5
 In determining what issues to pursue on appeal Attorney Buttner

indicated that although he considered raising other issues the one pursued

was the discretionary aspect of sentence. (Id. N.T. 7).

This witness specifically stated he considered raising the issue of

sufficiency of the evidence, however, when the elements of the crime were

examined in the context of the testimony presented "[Tjhere was no way I

could establish that there was insufficient evidence as to aggravated assault".

(Id. N.T. 11 ). In further discussing the standard of review employed by the

appellate court Attorney Buttner indicated that all evidence presented must

be considered and any reasonable inferences drawn from the evidence inures

to the benefit of the verdict winner, in the instant matter, the

Commonwealth. (Id. N.T. 12).

Attorney Buttner further related discussing with trial counsel the

testimony of a physician [Dr. Stanley Stanish ]2 who testified regarding the

defendant's participation in an HIV clinic. Attorney Buttner stated "The

fact of the matter was the evidence -- if not directly, circumstantially and by

way of reasonable inference, established that Mr. Crews either should have

known or at least believed that he was HIV positive." (ld.N.T. 13).

2
The trial testimony of Dr. Stanish appears at pages 117 through 147 of the trial transcript of October 18
and 19, 2011.

6
 Attorney Buttner posited the possibility of writing about the weight of

the evidence but subsequently noted it was not raised and therefore could not

be pursued.3 Attorney Buttner continued to explain why he did not pursue a

sufficiency claim stating that sometimes such a claim is pursued since there

is essentially nothing else to write about, but in the instant matter he

declined to raise a nonmeritorious issue since he did not "want to call

attention away from the issue regarding the aggravated range sentence

imposed.'' (Id.N.T. 15, 16).

Attorney Buttner additionally indicated he examined the trial

transcript in considering whether to raise a sufficiency claim including the

aforementioned testimony of Dr. Stanish. (N.T. 16 through 18).

On cross examination, petitioner's counsel questioned Attorney

Buttner regarding the weight of the evidence. "It's difficult to win a weight

of evidence argument in the Superior Court because they hate weighing

whether somebody is credible, incredible or inconsistencies. They hate

overruling a jury". (Id. N.T. 22).

David Crews was called and initially questioned regarding purported

"video footage" of the incident for which he was convicted. The petitioner

3
See: Pa.R.Crim. P. 607

7
indicated he believed a video tape would have been beneficial because "I

think it would be useful because I noticed the testimony of the ones

involved, they was changing the testimony, and the video wouldn't change.

The video would have been still the same. It wouldn't change." (Id. N.T.

28). Crews additionally asserted "It would show that I didn't make no

verbal gestures. They was saying that I was saying that. The camera showed

that I didn't make no verbal gestures and that I didn't throw no feces at

them. They were saying- - I didn't throw no feces at them. It would show

that." (Id. N.T. 29).

The petitioner was next questioned regarding an assertion that two

unidentified jurors were not excused or challenged for cause by trial counsel

despite "their knowledge of one of the victims". (Id. N.T.32). The

petitioner testified that "one juror" stated he knew one of the alleged victims

and "that they used to teach their children karate lessons, give them karate

lessons and stuff'. (Id. N.T. 34).

The petitioner was next asked about, again unidentified, asserted

inconsistent statements "made within the affidavit of probable cause and at

trial" (Id. N.T. 34). The petitioner was unable to reference, with any

specificity, any statements.

8
 Regarding what is apparently the sufficiency issue, petitioner

indicated "The facts is that besides you saying that I knew, that I had

knowledge, should have known, that was neither here or there. There was

neither here or there because an injured party never was even established.

How was they injured? It was never established that an injury was proven".

(Id. N.T. 3 7). Thereafter, over objection, the petitioner asserted "[T]he

Commonwealth really don't have no standing on those charges because no

injured party was ever proven, ever established". (Id. N.T. 38).

Finally, the petitioner was questioned concerning a prior conviction

for possession of a controlled substance. The record reflects petitioner's

counsel advising the court regarding a stipulation that the original

presentence investigation contained a 1999 charge that was subsequently

determined not to be related to Mr. Crews. Petitioner's counsel suggested

the absence of this offense would have changed the petitioner's prior record

score. (Id. N.T. 39, 40). Parenthetically, we observe that Maria Augello,

employed by the Luzerne County Probation and Parole Department, who

prepared the presentence investigation, testified during the course of this

hearing. ( Id. N.T. 68 through 71 ). Ms. Augellos testimony established she

prepared the original presentence investigation and reviewed the PSI in

preparation for her testimony in the instant matter. Ms. Augello calculated

9
the petitioner's sentence after removing the referenced possession

conviction. This did not change the petitioner's prior record score. (Id. N.T.

69). Additionally, the witness stated that "with his other convictions he

reached REFEL status and felony drug convictions don't contribute to that

status. It's only felony one and felony two convictions." (Id. N.T. 70).

Ms. Augello also deleted another felony two conviction which didn't

change the petitioner's status as well as a burglary which was previously

counted as a felony one and changed to a felony two "for the sake of

argument" which still did not change the defendant's status as a RFEL.4 (Id.

N.T. 70). Indeed, at the conclusion of the hearing the court took a recess to

provide petitioner's counsel additional time to examine the prior record

score, after which, both counsel and the petitioner agreed that there existed

no present issue concerning the presentence investigation and/or the

petitioner's prior record score. (Id. N.T. 71, 72)

During cross examination the petitioner was questioned regarding trial

counsel's alleged ineffectivness for failing to obtain video footage

concerning the incident. The petitioner acknowledged that the lack of a

4
The transcript abbreviation for repeat felon is erroneous; See: 204 Pa.Code§303.4(a)(2); 303.16(b).

10
video recording was discussed at trial and raised by trial counsel. (Id. N.T.

44).

The Commonwealth additionally attempted to cross examine the

petitioner regarding the purported inconsistent statements, however, the

petitioner was unable to identify any statement, yet alone one which was

inconsistent with an identified witness who testified during trial.

Trial counsel, David Lampman, Esquire, initially indicated there was

no transcript of jury selection as it was agreed a stenographer was

unnecessary. "It's been my experience that in just about all the cases I've

done jury selection is off the record". (Id. N.T. 49, 50). Furthermore,

Attorney Lampman had no recollection of any jurors' potential relationship

with a witness or victim or that the defendant, during jury selection, called

his attention to any issue. (Id. N.T. 50).

Regarding statements of witnesses, Attorney Lampman stated he had

in his possession reports of interviews of the correction officers who testified

during trial. (ld.N.T. 51 ).

During cross examination by petitioner's counsel, Attorney Lampman

indicated he could state "without any hesitation" that if potential jurors

articulated a relationship with alleged victims he would have moved to strike

11
the potential juror for cause and if not granted he would have used a

preemptory challenge. (Id. N.T. 56).

Corporal Christopher Wilson, a member of the Pennsylvania State

Police, was called by the Commonwealth and initially stated he was

responsible for approximately ninety-five percent ofthe criminal

investigations which have occurred over the last 10 years at the State

Correctional Institute at Dallas.

This witness indicated there are a number of areas under video

surveillance at the institution as well as "a lot of areas that are not under

video surveillance". This witness further explained that the surveillance

system is recorded via camera and then put on a hard drive. It is a

continuous recording device and the span of time that the images remain

available "depends on how active the camera is as to whether or not it's a

static camera or whether or not it is a motion - activated camera. It has been

my experience over the last 10 years that right around 30 days is just about

as far as you can get images off of that". (Id. N.T.62).

If an investigator wishes to view something he or she must actually go

into a secure server room with a DVD and copy the relevant time frame

from and individual camera. (Id. N.T. 62, 63).

12
 Parenthetically, as previously indicated, the time frame between the

incident and the actual arrest of the petitioner in the above captioned matter

is approximately one year.

Corporal Wilson additionally testified a review of the state police file

in this case reflects no DVD was created from the security system and there

was no DVD listed on any property record in possession of the state police.

(Id. N.T. 63). Corporal Wilson explained that had a DVD been requested by

the investigating officer, it would have been made part of the property

record.

During cross examination by petitioner's counsel Corporal Wilson

painstakingly explained there are no cameras inside the actual housing units

nor would there be a camera inside the shower area in question. Rather, the

camera in the restricted housing unit in which the petitioner was located is

outside and depicts a view of the hallway of the inmates coming down into

the shower area and "briefly glimpses the door". (Id. N.T. 65). Corporal

Wilson further explained the camera "does not even show far enough inside

the door to even get a picture of the closest cell, which is where the

individual showered. In a restricted unit when individuals are taking a

shower they are actually in cells within the shower unit." (Id. N.T. 65).

13
 Corporal Wilson additionally explained the substantial unlikelihood of

observing "the changing of the people coming in and maybe things flying

outside the door if the door was being held open [ ]". (Id.N.T. 66,67).

APPLICABLE LAW

Recently, in Commonwealth v. Feiguin Akbarr, (2604-2011; slip

opinion filed May 13, 2015) this court set forth the analytical framework

within which to consider claims of ineffective assistance of counsel.

We begin by observing the Pennsylvania Supreme Court, quoting

Strickland vs. Washington, 104 S.Ct. 2052( 1984), instructs judicial scrutiny of

counsel's performance must be highly deferential and every effort must be

made to eliminate the distorting effects of hindsight. Commonwealth v.

Saranchak., 866 A.2d 292, 304 (Pa. 2005.) The Saranchak court concluded that

if counsel's actions were strategically reasonable given the information

available to him or her, or stated alternately from his or her perspective at the

time, no ineffectiveness can be found.

In Commonwealth v. Reaves, 923 A.2d I 119 (Pa. 2007) Justice Castille,

writing for the court, reviewed applicable authority relating to an

ineffectiveness claim. The standard, commonly referenced as the

14
Strickland/Pierce" test requires that a petitioner must plead and prove both that

his counsel's performance was deficient and that the deficient performance

prejudiced the defense. To demonstrate actual prejudice, the defendant must

show that there is a reasonable probability, but for counsel's unprofessional

errors, that the result of the proceeding would have been different.6 Reaves

indicates to better focus the Strickland analysis our Supreme Court has applied

the performance part of the test by looking both to the arguable merit of the

claim lodged against counsel as well as the objective reasonableness of the path

taken, or not taken, by counsel. The constitutional ineffectiveness standard

requires a petitioner to rebut the presumption of professional competence by

demonstrating; (1) the underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; (3) but for counsel's ineffectiveness there is

a reasonable probability that the outcome of the proceedings would have been

different. A failure to satisfy any prong of the test for ineffectiveness requires

rejection of the claim.

5
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).

6
The Pennsylvania Supreme Court has refused to find ineffectiveness where the defendant does not
demonstrate prejudice, that is, the verdict is implicated. Commonwealth v. Clark, 961 A.2d 80, 91, 93 (Pa.
2008).

15
 It cannot be overemphasized that the aforementioned precedent

establishes it is incumbent upon a petitioner to both plead and prove counsel's

performance was deficient and that the deficient performance prejudiced the

defense. The analytical framework and determinations voiced in the

aforementioned Pennsylvania Supreme Court opinions were reiterated in

Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008) and Commonwealth v.

Daniels, 963 A.2d 409 (Pa. 2009). The Steele Court rejected numerous

ineffective assistance claims in the context of a conviction for three counts of

first degree murder and the imposition of the death penalty. In finding multiple

issues regarding forensic evidence waived, the opinion instructs it is incumbent

upon the petitioner to set forth and individually discuss substantively each

prong of the Pierce test. Where a petitioner/appellant fails to set forth all three

prongs of the ineffectiveness test and meaningfully discuss each of them, he is

not entitled to relief, and a reviewing court will be constrained to find such

claims waived for lack of development. (Id., 961 A.2d at 797). This

admonition was echoed by the Daniels court. 963 A.2d at 419.

Generally, where matters of strategy and tactics are concerned, counsel's

advice is deemed constitutionally effective if he or she chooses a particular

course that has some reasonable basis designed to effectuate the client's

interest. A claim of ineffectiveness cannot succeed through comparing, in

16
hindsight the strategy employed with alternatives not pursued. Commonwealth

v. Puksar, 951 A.2d 267 (Pa. 2008). Indeed, the ultimate focus of the

ineffectiveness inquiry is always upon counsel, and not upon an alleged

deficiency in the abstract. Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa.

2010). Colavita notes with approval authority establishing the deference to

trial counsel that is required under Strickland/Pierce is a deference that arises

from the appreciation of the art involved in the practice of law generally, and in

the defense function particularly. (Id. 993 A.2d at 895). In reversing the lower

court's finding of ineffective assistance, the Supreme Court instructs care must

be taken to recognize the limits of finding counsel ineffective based on a

hindsight evaluation. (Id. 993 A.2d at 894 n. 13). Additionally, Colavita

reiterates the Commonwealth bears absolutely no burden where a defendant

raises a claim of counsel's ineffectiveness.

We again remind all counsel, as our court did in Commonwealth v.

Robinson, 99 Luz. Leg. Reports 115 (2009), that it is simply not enough to

make a bald faced assertion that trial counsel was ineffective in doing or failing

to do something, it is rather petitioner's absolute obligation to plead and prove

each of the Strickland-Pierce prongs. It is not this court's obligation,

inclination, or prerogative to contemplate or construct how each and every

prong of the tripartite test has been satisfied.

17
 Pennsylvania jurisprudence regarding the alleged ineffective assistance

of appellate counsel is clear. Firstly, we observe that a criminal defendant has

no constitutional right to compel an appointed lawyer to argue non -frivolous

issues that a defendant wishes to press but counsel decides and determines, in

the exercise of his or her professional judgment, not to present to an appellate

court.Jones v. Barnes, 463 U.S. 745, 751- 752 ( 1983).

In Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011) the Pennsylvania

Supreme Court reviews several principles regarding appellate advocacy.

Quoting from previous precedent the opinion observes that criminal defendants

often believe that the best way to pursue their appeal is by raising the greatest

number of issues, actually, the opposite is true: selecting the few most

important issues succinctly stated, presents the greatest likelihood of success.

The opinion further notes it is well settled that appellate counsel is entitled, as a

matter of strategy, to forego even meritorious issues in favor of those he or she

believes pose a greater likelihood of success. This process of winnowing

weaker arguments and focusing on those more likely to prevail, far from being

evidence of incompetence, is the hallmark of effective advocacy. Experienced

advocates since time immemorial emphasize the importance of winnowing out

weaker arguments on appeal and focusing on one central issue if possible, or at

most on a few key issues. For judges to second-guess reasonable professional

18
judgments and impose on appointed counsel a duty to raise every colorable

claim suggested by a client would disservice the very goal of vigorous and

effective advocacy. ( Id. 23 A.3d at 1042, 1043; citations and quotations

omitted.)

To establish the ineffectiveness of appellate counsel evidence presented

during the PCRA hearing must demonstrate exactly how appellate counsel was

ineffective. This, as noted by the Pennsylvania Supreme Court in

Commonwealth v. Koehler, 36 A.3d 121, 141 (Pa. 2012), would typically entail

the presentation of evidence demonstrating appellate counsel's thought process

in presenting the claim. Alternately stated, the PCRA petitioner must

demonstrate that appellate counsel was ineffective in the manner by which he

litigated the claim on appeal. The petitioner must show appellate counsel's

ineffectiveness by offering additional evidence or controlling authority, missed

by direct appeal counsel, that would have changed the appeal outcome; or by

specifically alleging the winning claim or distinct legal theory that appellate

counsel failed to recognize; and then by showing how the appeal, as pursued,

was inconsistent by comparison. If the petitioner fails to demonstrate how

appellate counsel's presentation on direct appeal was constitutionally deficient

he has failed to demonstrate the arguable merit of his effectiveness claim, and is

not entitled to relief.

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 ANALYSIS

Appellate counsel asserts trial counsel was ineffective in failing to obtain

video footage "near where the incident occurred, video footage that the

Commonwealth possessed". We simply note there is not a scintilla of evidence

in the instant record demonstrating the Commonwealth possessed video footage

of the incident. Indeed the record establishes the opposite, that no video existed

and that the defendant's arrest occurred approximately 1 year after the incident

occurred. Furthermore, Corporal Wilson's testimony unequivocally establishes

that assuming video had been available its usefulness, in all likelihood, was

negligible. In any event the alleged error is neither postured nor analyzed

pursuant to the aforementioned tripartite test.

Appellate counsel next asserts trial counsel was ineffective "in failing to

properly use inconsistent statements of witnesses that would be inconsistent

with their statements in Affidavit of Probable Cause". The petitioner has failed

to identify any purported statement or statements by a Commonwealth witness

or witnesses or how these statements were inconsistent, as that term is

understood in Pennsylvania jurisprudence, with any statement uttered during

trial; and if identified and inconsistent how counsel's failure to employ them

establishes ineffective assistance under Pierce/Strickland. Indeed, this

assertion of error is frivolous in every sense of the word.
20
 Appellate counsel next asserts trial counsel was ineffective "in failing to

object to two jurors who knew corrections officer and victim Joe Wilds".

Initially, to the extent required for our determination of this issue, we

resolve the issue of credibility against the petitioner and in favor of trial

counsel, who as previously indicated, did not recall any potential juror

articulating a relationship with an alleged victim or any discussion with the

petitioner regarding the petitioner's desire to strike a potential juror. Moreover,

neither petitioner's counsel during the proceedings, nor appellate counsel, has

made even a meager attempt at demonstrating how trial counsel was ineffective

pursuant to Strickland/Pierce.7

Appellate counsel next argues trial counsel was ineffective "on appeal for

failing to properly challenge the underlying conviction". We are perplexed at

this assertion for several reasons. Initially, if one actually examines the trial

transcript, it is readily apparent that trial counsel "demurrered" to the

Commonwealth's evidence at the conclusion of the case in chief.8 Trial counsel

7
The existence of a relationship with a victim or witness, itself, is not determinative of disqualification.
See generally, Commonwealth v Briggs, 12 A.3d 291, 333-334 (Pa. 2011).

8
The use of the term demurrer is archaic. Pa.R.Crim.P.606 (a) (1) provides, in part, that challenges to the
sufficiency of evidence may be made pursuant to a motion for judgment of acquittal at the conclusion of
the Commonwealth's case in chief. The Rule's comment provides that the inadvertent use of the word
"demurrer" when "motion for judgment of acquittal" is now appropriate does not affect an otherwise
valid sufficiency challenge.

21
argued the Commonwealth failed to establish the elements of aggravated assault

because the evidence did not establish the defendant intended to cause serious

bodily injury. Additionally, trial counsel argued the Commonwealth failed to

establish the defendant in fact has HIV, referencing Dr. Stanish's testimony.

Trial counsel additionally argued the Commonwealth failed to prove the

defendant was aware of his HIV or possible HIV status, again referencing Dr.

Stanish's testimony. (Trial Transcript N.T. 178 through 180).

In rejecting trial counsel's arguments Judge Brown noted that the issues

raised are ones of fact for the jury to consider. Specifically, Judge Brown noted

"[T]he defendant's knowledge of HIV, it's hard for me to believe that a doctor

would treat him for HIV but not let the defendant know he had HIV. It doesn't

make a lot of sense." (Id. N.T. 181 ).

Judge Brown further referenced case law considering the sufficiency of

evidence in context where blood, saliva and feces are thrown at correctional

officers. These cases, Commonwealth v. Alston, 748 A.2d 667 (Pa. Super.

2000) and Commonwealth v. Brown, 605 A.2d 425 (Pa. Super. 1992) are

specifically referenced in the trial transcript. (Id. N.T. 181, 182).

Having reviewed the trial transcript we categorically agree with Judge

Brown. Moreover, having considered the testimony of Attorney Buttner

regarding his decision not to pursue a sufficiency argument, we find absolutely
22
no basis to conclude Attorney Buttner was ineffective. Again, neither

petitioner's counsel nor appellate counsel has made any attempt to articulate

how Attorney Buttner was ineffective as that term is understood pursuant to the

case law previously discussed in this opinion.9

Finally, appellate counsel asserts that trial counsel was ineffective in

failing to challenge the presentence investigation which was incorrect and listed

an improper conviction "that increased the prior record score". Not only is

there no evidence to support this assertion of error, the testimony of Ms.

Augello and the agreement of petitioner's counsel and the petitioner establish

its absolute lack of merit.

END OF OPINION

ORDER A TT ACHED AS PAGE 24

9
The import of Dr. Stanish's testimony regarding defendant's knowledge of his disease requires nothing
more that the ability to understand the English language and the application of logic and common sense.

23
 ) )

COMMONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS

OF LUZERNE COUTNY
V.
-CRIMINAL-LAW
DA YID CREWS,

Defendant
: NO: 3228 OF 2010

ORDER
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AND NOW, this fg_ day of August, 2015, it is hereby ORDE~ ii ~

ADJUDGED AND DECREED:
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1. The Clerk of Courts of Luzerne County is ORDERED AND

DIRECTED to serve a copy of this Order and Opinion on all

Counsel of Record pursuant to Pennsylvania Rule of Criminal

Procedure No. 114.

2. The Clerk of Courts of Luzerne County is ORDERED AND

DIRECTED to docket this Order and Opinion and to forthwith

transmit same to the Superior Court of Pennsylvania.

cc:District Attorney's Office
Matthew P. Kelly, Esq.

24