J-S78043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
HERBERT ARTHUR STARBIRD
Appellant No. 848 WDA 2016
Appeal from the PCRA Order May 19, 2016
in the Court of Common Pleas of Blair County Criminal Division
at No(s): CP-07-CR-0002632-2008
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED: March 24, 2017
Appellant, Herbert Arthur Starbird, appeals from the order of the Blair
County Court of Common Pleas denying his first Post Conviction Relief Act 1
(“PCRA”) petition. Appellant claims his trial counsel was ineffective for
stipulating to the proposed testimony of the investigating detective instead
of having the detective testify at trial. We affirm.
This Court previously summarized the factual history of this case.
On October 20, 2007, Helen Holenchek, a teller supervisor
at First Commonwealth Bank (First Commonwealth)
informed Appellant that his account had a negative
balance. N.T., 3/8/10, at 44-45. On October 23, 2007, a
new teller at the bank, Christina Heiling, made a data
entry error, accidentally depositing $280,000.00 into
Appellant’s account, funds which should have gone to
another client’s business account. Id. at 67, 70-71.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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Appellant never contacted the bank to inquire as to why
these funds were deposited into his account. Id. at 188.
Instead, Appellant began withdrawing the money from his
account. During this time, Appellant opened a separate
savings account at Investment Savings Bank (Investment
Savings). Starting on November 16, 2007, Appellant
withdrew $16,400.00 from his First Commonwealth
account and deposited those funds into his Investment
Savings account. Id. at 228, 231. Around the same
period of time, Appellant opened another account at
Citizens Bank (Citizens). He withdrew $27,144.51 from his
First Commonwealth account, and deposited it into his
Citizens account. Id. at 240, 243-247. In February 2008,
Appellant began to withdraw the money at these two
banks and spent it. Id. 235, 248.
First Commonwealth discovered its $280,000.00 error
on February 7, 2008. Id. at 86, 90-91. By that time,
Appellant had written over 200 checks off his account,
withdrawing over $178,000.00. Id. at 104-105. First
Commonwealth immediately froze all of Appellant’s
accounts, recouped the remaining $102,935.46 left in his
checking account, and recouped an additional $14,000.00
from Appellant’s savings account. Id. at 105-106. First
Commonwealth also recouped an additional $624.00
electronically deposited into Appellant’s account from the
United States Treasury. Id. at 106. In sum, First
Commonwealth failed to recoup a total of $157,206.12.
Id. at 121.
On February 8, 2008, the manager of the bank, Randy
Simpson, confronted Appellant about the funds
erroneously deposited into his account. Id. at 114. At
that time, Appellant admitted to Simpson that he did not
make said deposit. Id. at 115. First Commonwealth
offered two solutions through which Appellant could repay
the money. The bank offered Appellant a 20-30 year
mortgage on his home equal to the amount of the missing
funds, secured by Appellant’s residence. Id. at 120, 204-
105. The bank also offered to accept 80% of the net sale
price of Appellant’s residence as partial payment toward
the amount due. Id. at 173-174. Appellant rejected both
of these options. Id. at 174, 204. After attempting to
resolve the dispute for seven months to no avail, First
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Commonwealth turned the matter over to the Altoona
Police Department. On September 19, 2008, Appellant
was arrested for theft of property lost or mislaid by
mistake[2] and receiving stolen property.[3]
Commonwealth v. Starbird, 1301 WDA 2011 (Pa. Super. May 8, 2012)
(unpublished memorandum at 1-3).
Appellant was represented by Thomas Dickey, Esq. (“trial counsel”),
and proceeded to a two-day jury trial during which numerous bank
employees testified. On the second day of trial, Attorney Dickey entered the
following stipulation into the record:
[I]f called Detective Scott Koehle would testify that he
became involved on or about August 20, 2008 when he
responded to the Law Office of Attorney Rick Gieg[, First
Commonwealth’s counsel]. He made the following
notation—the following notation was made in his incident
report and this was a verbatim quote, Your Honor,
according to [two First Commonwealth employees,] Mr.
[James] Boyle and Mr. Simpson, and Attorney Gieg, the
bank has not been successful in collecting any further
monies and request that [Appellant] be arrested for theft.
And that complaint was filed on or about 9-18-2000.
N.T., 3/9/10, at 103-04. Neither party called Detective Koehle to testify at
trial. Appellant testified and asserted that he immediately contacted First
Commonwealth after discovering the mistaken deposit. Id. at 25. He
averred that he used the money after receiving assurances that the deposit
was legitimate and the money was his. Id. at 25-27, 29.
2
18 Pa.C.S. § 3924.
3
18 Pa.C.S. § 3925(a).
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On March 9, 2010, the jury found Appellant guilty of theft and
receiving stolen property and determined the amount taken was over
$2000.4 On May 13, 2010, the trial court sentenced Appellant to seven
years’ probation for theft5 and $157,206.12 in restitution, as well as $100 in
fines.
Appellant took a direct appeal, and this Court affirmed the judgment of
sentence on May 8, 2012. Starbird, 1301 WDA 2011. Appellant did not
petition the Pennsylvania Supreme Court for allowance of appeal.
The PCRA court received Appellant’s first, timely, pro se PCRA petition
on December 6, 2012. On April 2, 2015, appointed counsel, Attorney Lucas
A. Kelleher, Esq., filed an amended petition asserting trial counsel was
ineffective for failing to call Detective Koehle as a witness.6 The court
conducted an evidentiary hearing on April 11, 2016. Appellant testified that
4
See 18 Pa.C.S. § 3903(a.1) (grading a theft offense involving more than
$2,000 as a third-degree felony).
5
The trial court merged the count of receiving stolen property.
6
The PCRA court initially appointed Timothy S. Burns, Esq., on December
18, 2012. On March 13, 2013, Attorney Burns informed Appellant he was
not eligible for court-appointed counsel based on his income. On August 20,
2013, the court appointed Paul M. Puskar, Esq. to represent Appellant.
Attorney Puskar filed a motion to withdraw as counsel on May 13, 2014,
asserting a breakdown in the attorney-client relationship. On October 28,
2014, following a hearing, the PCRA court appointed Lucas A. Kelleher, Esq.,
who had represented Appellant in his direct appeal, subject to Appellant
withdrawing his ineffectiveness claims against Attorney Kelleher and waiving
any potential conflicts. Appellant waived all potential conflicts with Attorney
Kelleher.
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he instructed trial counsel to ensure Detective Koehle was present for trial.
N.T., 4/11/16, at 15. Appellant asserted that the detective made
misstatements in his investigative report and affidavit of probable cause.
Id. at 18-19, 23-24, 26-29. Appellant further suggested that the detective’s
testimony at trial was necessary to establish that he initially made a “good
faith” payment of $5,500 to the bank. Id. at 8. No other witnesses were
called at the hearing.
On May 19, 2016, the PCRA court entered the instant order denying
relief. The court reasoned, in relevant part:
[Appellant] cannot show that he was prejudiced by any
ineffectiveness of his trial counsel as Detective Koehle was
not a potential fact witness. Detective Koehle could only
testify as to his investigation, testimony which would have
been full of objectionable hearsay. Even if [trial counsel]
had called Detective Koehle as an adverse witness, and
shown him to be an unreliable witness, it would not have
made any difference to the outcome of this case. The
Commonwealth had overwhelming evidence against
Petitioner and Detective Koehle could provide no proof or
absolution to the charges for which the jury found
Petitioner guilty. This case rested entirely on the bank
records, the testimony of bank employees, and the
testimony of [Appellant]. Detective Koehle’s absence did
not prejudice [Appellant] from cross-examining the bank
employees or challenging the bank’s records. The
evidence against [Appellant] stands with or without
Detective Koehle.
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PCRA Ct. Op. & Order, 5/19/16, at 6-7. The court further suggested that
trial counsel’s decision to stipulate to Detective Koehle’s testimony was
reasonable. Id. at 7. This timely appeal followed.7
Appellant presents the following interrelated questions for review:
A. Whether the PCRA Court erred/abused its discretion by
failing to find Appellant’s 6th Amendment right to
confront his accuser was violated, as the affiant who
filed the charges against Appellant did not appear to
testify at trial[?]
B. Whether the PCRA Court erred/abused its discretion by
failing to find Appellant’s prior counsel ineffective for
failing [to] subpoena the Commonwealth’s affiant to
testify at trial, and for stipulating to the his testimony,
as the record demonstrates the inability to cross
examine the affiant prejudiced the Appellant’s
defense[?]
Appellant’s Brief at 4.
Appellant argues that trial counsel’s stipulation that First
Commonwealth “was unsuccessful in collecting any further monies”
precluded further examination of the detective. Id. at 11. According to
Appellant, cross-examination of the detective was critical to establish (1)
Appellant’s “negotiations and efforts with the bank to repay the money[,]”
(2) “other inconsistencies in the Commonwealth’s evidence[,]” such as most
of his withdrawals being under $100 before the mistaken deposit and over
$100 after the mistaken deposit, and (3) the lack of basis for the detective’s
7
The PCRA court did not order a Pa.R.A.P. 1925(b) statement, although
Appellant did file a statement
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opinion that Appellant had committed theft. Id. at 11-13. Appellant
contends that he was prejudiced by trial counsel’s inaction because the
examination of the detective would have established Appellant did not intend
to deprive the bank of the money permanently and because the detective
would admit that the evidence against Appellant was “dubious.” Id. at 11-
14. Appellant further claims trial counsel’s inactions deprived him of his
right to confront his accuser. Id. at 14. No relief is due.
The following standards and principles govern our review:
“In reviewing the propriety of an order granting or
denying PCRA relief, an appellate court is limited to
ascertaining whether the record supports the
determination of the PCRA court and whether the ruling is
free of legal error.” We pay great deference to the
findings of the PCRA court, “but its legal determinations
are subject to our plenary review.”
***
To be eligible for relief based on a claim of ineffective
assistance of counsel, a PCRA petitioner must
demonstrate, by a preponderance of the evidence, that (1)
the underlying claim is of arguable merit; (2) no
reasonable basis existed for counsel’s action or omission;
and (3) there is a reasonable probability that the result of
the proceeding would have been different absent such
error. With regard to the second, i.e., the “reasonable
basis” prong, this Court will conclude that counsel’s chosen
strategy lacked a reasonable basis only if the appellant
proves that “an alternative not chosen offered a potential
for success substantially greater than the course actually
pursued.” To establish the third prong, i.e., prejudice, the
appellant must show that there is a reasonable probability
that the outcome of the proceedings would have been
different, but for counsel’s action or inaction.
...
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[w]hen raising a claim of ineffectiveness for the
failure to call a potential witness, a petitioner
satisfies the performance and prejudice requirements
of the [Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed.2d 674 (1984) ] test by
establishing that: (1) the witness existed; (2) the
witness was available to testify for the defense; (3)
counsel knew of, or should have known of, the
existence of the witness; (4) the witness was willing
to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to
have denied the defendant a fair trial. . . .
“To demonstrate Strickland prejudice, a petitioner must
show how the uncalled witnesses’ testimony would have
been beneficial under the circumstances of the case.”
Counsel will not be found ineffective for failing to call a
witness “unless the petitioner can show that the witness’s
testimony would have been helpful to the defense. A
failure to call a witness is not per se ineffective assistance
of counsel for such decision usually involves matters of
trial strategy.”
Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (en
banc) (citations omitted).
Following our review, we agree with the PCRA court that Appellant did
not establish prejudice because the evidence of Appellant’s guilt was
overwhelming. Additionally, although Appellant asserts that Detective
Koehle’s alleged testimony was necessary to establish that he made a
$5,500 payment to First Commonwealth, that fact was presented to jury.
See N.T., 3/8/10, at 203; N.T., 3/9/10, at 43. Moreover, Appellant’s
contention that it was necessary to rebut Detective Koehle’s assertions
regarding the pattern of his checks before and after the mistaken deposit
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provides no basis for relief, because no evidence of such patterns was
presented as evidence at trial. Lastly, there was no violation of the
Confrontation Clause, because the detective did not testify against Appellant
and the detective’s assertions and opinions were not admitted into evidence.
See generally Commonwealth v. Williams, 84 A.3d 680, 684 (Pa. 2014)
(reiterating that the right to confrontation is basically a trial right that
ensures the reliability of the evidence against a criminal defendant).
Consequently, we discern no support for Appellant’s assertions that the
detective’s testimony was necessary to ensure fairness of his trial, or that
the outcome at trial would have been different had he examined the
detective. Thus, we agree with PCRA court that Appellant’s claims of
ineffectiveness did not warrant relief.8 See Matias, 63 A.3d at 810-11.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2017
8
We further note that Appellant did not call Detective Koehle or trial counsel
to testify at the PCRA hearing. Therefore, Appellant did not carry his burden
of establishing the detective was willing to concede that the case against
Appellant was dubious, or that trial counsel lacked a reasonable basis for his
decision to stipulate to Detective Koehle’s trial testimony and not call the
detective. See Matias, 63 A.3d at 810-11.
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