Com. v. Garner, J.

J-S80033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

JACK CLARK GARNER

Appellant No. 453 MDA 2016

Appeal from the PCRA Order February 17, 2016
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003867-2010

BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.: FILED JANUARY 11, 2017

Appellant, Jack Clark Garner, appeals from the February 17, 2016

order, denying his petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

On April 14, 2011, a jury convicted Appellant of three counts of official

oppression and two counts of impersonating a public servant 1 as a result of

his actions in May 2010.2 Appellant, an elected constable for South Hanover

Township, Dauphin County, followed and blocked in two cars with young

female occupants in Lower Paxton Township, Dauphin County. Appellant

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1
18 Pa.C.S. § 5301 and 18 Pa.C.S. § 4912, respectively.
2
See PCRA Court Opinion (PCO), 1/20/16, at 1-5, for a more detailed
factual history of this case; see also Notes of Testimony (N. T.), 6/29/11, at
51.
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testified that he conducted these stops after witnessing Andrea Sherman cut

off another vehicle, and after witnessing Jessica Bender throw a cigarette

butt from the passenger window of a car driven by Lauren Christen.

Appellant demanded the women provide him with licenses, registration, and

other personal information. He referred to himself as an “officer” during the

course of these encounters and flashed his constable’s badge.

At trial, Appellant presented his brother as a character witness to

testify to his reputation in the community. The Commonwealth presented a

number of rebuttal witnesses to testify to his bad reputation in the

community, specifically that he did not have a good reputation in the

community for being law-abiding or honest.

On June 29, 2011, the trial court sentenced Appellant to an aggregate

of four to twenty-four months of intermediate punishment, followed by eight

years of probation, 250 hours of community service, and a prohibition

against holding public office. Appellant timely filed post-sentence motions,

which the court denied.

Appellant timely filed a direct appeal, arguing that the jury’s verdict

was against the weight of the evidence presented at trial. This Court

affirmed his judgment of sentence on July 9, 2012. See Commonwealth v.

Garner, 55 A.3d 126 (Pa. Super. 2012) (unpublished memorandum).

Appellant did not petition for allowance of appeal to the Pennsylvania

Supreme Court.

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On August 8, 2013, Appellant timely filed a counseled PCRA petition.

After a year of continuances, Appellant filed an amended PCRA petition,

raising numerous allegations of ineffective assistance of counsel.

Specifically, Appellant claimed counsel was ineffective for 1) failing to

challenge the sufficiency of the evidence on direct appeal; 2) failing to

submit jury instructions or object to those instructions given to the jury that

did not explain the lawful authority to encounter citizens or the test to

determine what type of encounter occurred; 3) failing to properly advise

Appellant about the consequences of calling character witnesses; and 4)

failing to object to the prejudicial mannerisms of the trial court.

The PCRA court held an evidentiary hearing on April 1, 2015. Trial

counsel testified that with regard to the jury charges, he had prepared jury

instructions for the court. Id. at 26-27. With regard to Appellant’s

character witnesses, trial counsel would have advised Appellant about the

presentation of character witnesses. Id. at 52. With regard to questioning

about the trial court’s demeanor, counsel was familiar with the court and the

dynamics of that courtroom and “chose his battles” so as not to make a

potentially hostile situation worse for his client. Id. at 31-34. He did not

feel the court’s remarks or demeanor were so egregious as to lodge an

objection at that time. Id. at 34-35.

On January 19, 2016, the PCRA court found that Appellant was not

entitled to PCRA relief and issued an order giving Appellant notice of its

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intent to dismiss. On February 17, 2016, the court dismissed Appellant’s

petition.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The PCRA court issued a statement in lieu of a Pa.R.A.P. 1925(a)

opinion, incorporating its previous memorandum opinion and addressing

additional issues raised by Appellant in his statement.

Appellant raises four issues on appeal, all relating to ineffective

assistance of counsel:

A. Whether the PCRA court erred in denying Appellant’s claim
that appellate counsel was ineffective for failing to raise on direct
appeal claims of sufficiency of the evidence to both criminal
offenses Appellant was convicted of, when Appellant was acting
under lawful authority as a constable and where the encounter
with the complainants were “mere encounters” and were
therefore justified under the law?

B. Whether the PCRA court erred in denying Appellant’s claim
that trial counsel was ineffective for failing to submit sufficient
jury instructions or object to the instructions given to the jury,
where the instructions given did not explain the lawful authority
of constables to encounter citizens, or the test to determine
what type of encounter occurred?

C. Whether the PCRA court erred in denying Appellant’s claim
that trial counsel was ineffective for failing to advise Appellant
that the law would permit the Commonwealth to call rebuttal
witnesses to testify to his bad reputation in the community as to
the relevant character trait if Appellant opened the door by
calling his own character witness?

D. Whether the PCRA court erred in denying Appellant’s claim
that trial counsel was ineffective for failing to object to the
prejudicial mannerisms of the trial court before the jury which
tended to belittle Appellant and his defense to the charges?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

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We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. See Commonwealth v. Ragan, 923 A.2d

1169, 1170 (Pa. 2007). We afford the court’s findings deference unless

there is no support for them in the certified record. Commonwealth v.

Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

We first note that the PCRA court has misapprehended the state of

current law regarding waiver by suggesting that Appellant’s claims of

ineffective assistance of counsel are waived for failure to raise them on

direct appeal and properly layer them. Claims of ineffective assistance of

counsel must be raised on collateral review and not direct appeal. See

Commonwealth v. Stollar, 85 A.3d 635, 651-52 (Pa. 2014) (quoting

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002)).3 Despite the

PCRA court’s error, “[w]e may affirm a PCRA court's decision on any grounds

if it is supported by the record.” Commonwealth v. Burkett, 5 A.3d 1260,

1267 (Pa. Super. 2010).

Appellant raises a number of issues relating to ineffective assistance of

appellate and trial counsel. Ultimately, they are meritless.

____________________________________________

3
Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013), outlines
two exceptions to this rule, but neither exception applies here.

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We presume counsel is effective. Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish

the ineffective assistance of counsel, a PCRA petitioner must prove, by a

preponderance of the evidence, that: (1) the underlying legal issue has

arguable merit; (2) counsel’s actions lacked an objective reasonable basis;

and (3) actual prejudice befell the petitioner from counsel’s act or omission.

Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations

omitted). “A petitioner establishes prejudice when he demonstrates that

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

errors, the result of the proceeding would have been different. Id. A claim

will be denied if the petitioner fails to meet any one of these requirements.

Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)

(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). Further,

counsel cannot be deemed ineffective for failing to raise a meritless claim.

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).

In his first issue, Appellant contends appellate counsel was ineffective

for failing to challenge on direct appeal the sufficiency of the evidence.

Appellant avers that the evidence was insufficient because he was acting

under common law authority as a constable to investigate violations of the

crimes code. According to Appellant, constables have the authority to make

warrantless arrests, and he had the right to initiate “mere encounters” with

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the complainants. Appellant concludes that, due to counsel’s failure to

pursue the sufficiency claim on appeal, he was denied due process of law.

Appellant’s Brief at 17-19.

Our analysis begins with the first prong of the ineffectiveness test:

whether there is arguable merit to the underlying claims. See Johnson,

966 A.2d at 533. A sufficiency claim alleges that the evidence admitted at

trial failed to establish all the elements of a crime beyond a reasonable

doubt. See Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super.

2011).

The elements of official oppression are:

A person acting or purporting to act in an official capacity or
taking advantage of such actual or purported capacity commits a
misdemeanor of the second degree if, knowing that his conduct
is illegal, he:

(1) subjects another to arrest, detention, search, seizure,
mistreatment, dispossession, assessment, lien or other
infringement of personal or property rights; or

(2) denies or impedes another in the exercise or enjoyment of
any right, privilege, power, or immunity.

18 Pa.C.S. § 5301. With regard to the mens rea required to commit an act

of official oppression, this Court has noted that “knowing” means the

accused must have been acting in bad faith when subjecting the other to the

proscribed activities. See Commonwealth v. Eisemann, 453 A.2d 1045,

1048 (Pa. Super. 1982). Thus, to establish Appellant’s guilt for official

oppression, the Commonwealth was required to prove beyond a reasonable

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doubt that Appellant, purporting to act in an official capacity, knowingly

subjected the complainants to an illegal detention. See 18 Pa.C.S. § 5301;

Eisemann, 453 A.2d at 1048.

The authority of a constable is not entirely clear. Constables are duly

elected officials in cities of the second class, cities of the third class,

boroughs, incorporated towns, or townships. See 44 Pa.C.S. § 7111. They

may “perform all duties authorized and imposed on them by statute.” See

44 Pa.C.S. § 7151. These duties include keeping the peace during elections,

serving process, collecting taxes, arresting offenders against forest laws,

executing on judgments, and recovering trespassing livestock. See 44

Pa.C.S. §§ 7152-59.

Constables are not police officers and do not share the same general

powers as police officers. See 53 Pa.C.S. § 2162 (listing various types of

law enforcement officials which may be considered duly employed municipal

police officers, constables excluded); see also Commonwealth v. Taylor,

677 A.2d 846, 851 n.6 (Pa. Super. 1996) (rejecting asserting that constables

are police officers); see also Commonwealth v. Dietterick, 631 A.2d

1347, 1350 (noting that when vesting a group with police powers and

duties, the legislature does so with specificity); see also 18 Pa.C.S. § 103

(defining the term police officer to include sheriffs, but not constables); see

also 44 Pa.C.S. §§ 7132-33 (constables may also be employed as police

officers).

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For example, police officers are empowered, by the Municipal Police

Jurisdiction Act, to effectuate warrantless arrests within their jurisdiction

and, outside of their jurisdiction, to effectuate warrantless arrests when

certain exceptions are met. See 44 Pa.C.S. §§ 8952-53 (noting that police

officers may act outside of their primary jurisdiction when, for example, they

are in hot pursuit, or on official business and witness and view an offense,

etc.). In contrast, the statutory authority of constables is more limited.

Title 44 of the Pennsylvania Consolidated Statutes provides that a constable

of a borough may, without warrant and upon view, arrest and commit for a

hearing any person who is guilty of a breach of the peace, engaged in the

commission of an unlawful act that may imperil the personal security or

endanger the property of citizens, or violates any ordinance of the borough

for which a fine or penalty is imposed. See 44 Pa.C.S. § 7158. Appellant,

however, was not a borough constable, but a constable of South Hampton

Township. Title 44 is silent as to the warrantless arrest powers of township

constables, and particularly under what authority constables may conduct

warrantless arrests outside of their jurisdiction.

Constables are prohibited from enforcing the Motor Vehicle Code based

upon their lack of statutory authority to do so. See Commonwealth v.

Roose; 710 A.2d 1129, 1130 (Pa. 1998); see, generally, Commonwealth

v. Roose, 690 A.2d 268, 270-71 (Pa. Super. 1997) (noting inherent

problems with lack of statutory authority allowing constables to perform

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traffic stops, which involve seizures and all of their constitutional

implications); see also 75 Pa.C.S. § 6308 (providing that police officers may

stop vehicles of anyone suspected to have violated the Motor Vehicle Code)

(emphasis added).

Case law has confirmed, to some extent, the common law power of

constables to arrest for felonies and breaches of the peace committed in

their presence. See Taylor, 677 A.2d at 852. Constables may not make

warrantless arrest for misdemeanors or summary offenses unless they

constitute a breach of the peace. See Taylor, 677 A.2d at 852 (emphasis

added). Appellant’s own definition of breach of the peace is taken from a

1954 case, which suggests that a breach of the peace includes all indictable

offenses, i.e., any offense other than a summary offense. See

Commonwealth v. Magaro, 103 A.2d 449, 452 (Pa. Super. 1954); see

also 42 Pa.C.S. § 102.

While Appellant acknowledges that constables are not allowed to

enforce the Motor Vehicle Code, he argues that he was instead “enforcing

violations of the Crimes Code.” Appellant’s Brief at 16 (citing in support 18

Pa.C.S. §§ 2705, 6501). Appellant avers that he detained Ms. Sherman

under suspicion that she had committed the offense of recklessly

endangering another person (REAP), 18 Pa.C.S. § 2705, a misdemeanor,

and similarly that Ms. Bender and Ms. Christen had committed the offense of

scattering rubbish, 18 Pa.C.S. § 6501, a summary offense. Thus, Appellant

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concludes, he was justified in stopping the cars of these young women or in

having “mere encounters” with them. However, this assertion is not

supported by the law for a number of reasons.

First, despite Appellant’s assertions, the interactions which occurred in

this case were not mere encounters, but investigatory detentions. See

Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. 2000) (noting that an

investigative detention is an interaction which carries an official but

temporary compulsion to stop and respond). By contrast, a mere encounter

does not carry an official compulsion to stop and respond. Id. Appellant

was not authorized to make these traffic stops, despite his arguments that

he was acting within his lawful authority as a constable and peace officer

when he detained the complainants. See In Re Act 147 of 1990, 598 A.2d

986 (Pa. 1991) (noting that a constable is a “peace officer.”)

In the instant case, Appellant’s actions rose to the level of an

investigative detention. Despite having no authority to conduct a traffic

stop, Appellant blocked the victims’ cars in to their spaces, flashed his

badge, and introduced himself as “an officer.” Appellant’s actions led the

victims to believe that he was a police officer subjecting them to traffic stops

for allegedly committing crimes. Appellant demanded the victims’ license

and registration. All of these actions, in conjunction, rose to the level of an

investigative detention.

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Further, Appellant’s arguments that he was enforcing the Crimes Code

are not persuasive. The offenses that Appellant was allegedly enforcing

were a misdemeanor and summary offense respectively. Thus, the only way

he conceivably had the authority to conduct an arrest was if those offenses

constituted breaches of the peace. As noted above, Appellant’s definition of

“breach of the peace” is any indictable offense. However, “breach of the

peace” is an archaic term that has not been codified in the Crimes Code.

Black’s Law Dictionary defines the term as the criminal offense of creating a

public disturbance or engaging in disorderly conduct, particularly by making

an unnecessary or distracting noise. BREACH OF THE PEACE, Black’s Law

Dictionary (10th ed. 2014).

Even if we accept Appellant’s arguments that he was enforcing the

Crimes Code, this argument can only be half correct. When Appellant

stopped Ms. Sherman’s car, he argued that she had committed REAP. REAP,

as an indictable offense, could potentially be considered a breach of the

peace and potentially within Appellant’s purview of lawful authority.

However, when Appellant detained Ms. Christen and Ms. Bender, the alleged

“offense” was scattering rubbish. By Appellant’s own definition, scattering

rubbish cannot be a breach of the peace, as it is a summary offense and not

indictable. Thus, it was reasonable for a jury to discount Appellant’s

argument and conclude that Appellant had acted in bad faith for allegedly

“investigating” that crime.

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Finally, evidence was introduced at trial that was sufficient for the jury,

as a fact-finder, to conclude that Appellant had acted in bad faith in his

detentions of the victims. Specifically, the evidence introduced at trial

established the following.

Appellant purported to act in an official capacity. He approached

drivers outside of South Hanover Township, stopped them, displayed his

badge, and demanded their licenses, registration, and insurance information.

He ordered these young women to remain by their cars. In the course of

effectuating these detentions, Appellant referred to himself as an “officer,”

and the complainants testified they believed they were being subjected to

traffic stops by a police officer and were not free to leave. However,

Appellant did not make an arrest. He did not issue citations. He did not

issue warnings. The complainants were never charged with any crime nor

made to pay any fines. The only actions Appellant took were to detain each

woman and record her personal information. The complainants testified to

their confusion and fear; Ms. Christen specifically denied driving in a reckless

manner.

Appellant called his brother to testify to his good character for

truthfulness, peacefulness, and for being law abiding. See N. T. Trial at

158. However, the Commonwealth presented four witnesses to testify to

Appellant’s bad reputation in the community for being dishonest and not law

abiding. N. T. Trial at 196-215.

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Thus, considering the circumstances surrounding the detentions and

the plethora of character witnesses to testify as to Appellant’s reputation for

dishonesty, it was reasonable for the jury as a factfinder to conclude that

Appellant had acted in bad faith when detaining the complainants. Thus,

because Appellant had acted in bad faith, it was proper for the jury to

conclude that Appellant possessed the mens rea necessary to find him guilty

of official oppression.

With regard to impersonating a public servant:

A person commits a misdemeanor of the second degree if he
falsely pretends to hold a position in the public service with
intent to induce another to submit to such pretended official
authority or otherwise act in reliance upon that pretense to his
prejudice.

18 Pa.C.S. § 4912. The evidence introduced at trial was sufficient to support

the jury’s conviction. Appellant stopped each woman while driving.

Appellant flashed his constable badge to the women, and introduced himself

as an “officer.” Each woman believed Appellant was a police officer

effectuating a traffic stop. Each woman was subjected to a seizure, to their

prejudice. As discussed above, Appellant was not a police officer and was

not acting within his lawful authority at the time of the detentions.

Consequently, the evidence was sufficient to show that Appellant was

guilty of the crimes charged. Counsel cannot be ineffective for failure to

litigate a meritless claim. See Fears, 86 A.3d at 804.

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In his second issue, Appellant contends that trial counsel was

ineffective for failing to submit sufficient jury instructions or object to the

jury instructions given. Appellant argues that the instructions should have

explained the lawful authority of constables to encounter citizens and the

test to determine what type of encounter occurred, because Appellant’s

interactions with the women did not rise to the level of investigative

detentions. Appellant’s Brief at 4.

When evaluating jury instructions, this Court considers whether the

instructions as a whole were prejudicial. Commonwealth v. Carson, 913

A.2d 220, 255 (Pa. 2006). A trial court is not required to use any particular

jury instructions, or particular forms of expression, so long as those

instructions clearly and accurately characterize the relevant law. Id. The

trial court is not required to give every charge that is requested by the

parties, and its refusal to give a requested charge does not require reversal

unless the Appellant was prejudiced by that refusal. Commonwealth v.

Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013) (citation omitted). Jury

instructions regarding offenses and defenses are not warranted unless there

is evidence to support such instructions. Commonwealth v. Browdie, 671

A.2d 668, 674 (Pa. 1996).

We have examined the record, and the trial court’s jury charge

correctly and accurately sets forth the elements of the crimes of official

oppression and impersonating a public official. Further, the trial court

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properly charged the jury on mere encounters and investigative detentions.

Trial counsel did submit proposed jury instructions that included a section

titled “Law Enforcement Authority of Constables,” and apparently, the court

did not accept counsel’s proposed instructions. However, the court did

instruct the jury on the lawful authority of constables to encounter citizens

and to make warrantless arrests for breaches of the peace. N. T. Trial, 252-

60. Thus, although Appellant did not receive the exact instructions he

wished to receive, he could not have been prejudiced by the instructions

read to the jury. Counsel cannot be ineffective for failure to litigate a

meritless claim. See Fears, 86 A.3d at 804.

In his third issue, Appellant contends that trial counsel failed to advise

Appellant that, if he called a character witness, the Commonwealth would be

permitted to call rebuttal witnesses to testify to his bad reputation.

Appellant’s Brief at 4.

When deciding whether to call a character witness, counsel should

inform a defendant of the right to present character witnesses and should

discuss with the client whether such witnesses would be advisable under the

circumstances of the evidence and defenses available. See

Commonwealth v. Carter, 597 A.2d 1156, 1162 (Pa. Super. 1991). Here,

counsel testified he discussed the ramifications of calling character witnesses

with Appellant. N. T., 4/1/15, at 52. The PCRA court found this testimony

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credible. We defer to this finding. See Brown, 48 A.3d at 1277.

Consequently, Appellant’s claim is without merit.

In his final issue, Appellant contends that trial counsel was ineffective

for failing to object to the “prejudicial mannerisms” of the trial court, which

“tended to belittle Appellant and his defense to the charges.” At the

evidentiary hearing, trial counsel testified extensively to his familiarity with

the trial court’s courtroom demeanor and that he felt it best to pick his

battles so as to avoid harming his client’s case. Counsel’s actions had a

reasonable basis, and thus, he was not ineffective. See Johnson, 966 A.2d

at 533.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/11/2017

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