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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
BRANDON WILLIAM GROVER :
:
Appellee : No. 1251 WDA 2017
Appeal from the PCRA Order August 10, 2017
In the Court of Common Pleas of Potter County
Criminal Division at No(s): CP-53-CR-0000047-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 07, 2019
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Potter County Court of Common Pleas, which granted the first
petition of Appellee, Brandon William Grover, filed pursuant to the Post
Conviction Relief Act (“PCRA”)1, vacated the judgment of sentence, and
granted Appellee a new trial. Based on the following reasons, we vacate and
reinstate Appellant’s judgment of sentence.
The relevant facts and procedural history of this case are as follows. On
August 13, 2011, Appellee and his then-girlfriend, Jessica Snyder, engaged in
a physical altercation with another couple. The Commonwealth charged
Appellee on January 11, 2013, with one count each of aggravated assault,
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1 42 Pa.C.S.A. §§ 9541-9546.
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simple assault, and harassment.
Appellee proceeded to a jury trial on May 8, 2014. At trial, Patrick
Nelson (“Victim 1”), testified that on the night of the incident, he and his wife,
Karen Nelson (“Victim 2”), visited a local bar where Appellee and Ms. Snyder
were present. Victim 1 testified he and Victim 2 did not know or interact with
Appellee or Ms. Snyder prior to the altercation. Victim 1 explained as he and
Victim 2 exited the bar, he noticed tension among some women gathered
outside. Victim 1 said he observed Ms. Snyder aggressively yelling and
running towards Victim 2, which was the last detail he recalled from that
evening before losing consciousness.
Victim 2 also testified at trial. Victim 2 stated she did not interact with
Appellee or Ms. Snyder while inside the bar. Victim 2 said when she exited
the bar, Ms. Snyder asked her, “What are you looking at?” Victim 2
responded, “Not much,” and walked away from Ms. Snyder. Victim 2 testified
that while walking to the car, a hard object hit the back of her head, causing
her to fall to the ground. Victim 2 stated Ms. Snyder jumped on top of her
and hit her in the face. Victim 2 explained while Ms. Snyder attacked her,
Appellee repeatedly kicked the upper body of Victim 1, who was rendered
unconscious.
Jonathan Huff, the disc jockey at the bar the night of the incident, also
testified. Mr. Huff stated Appellee and Ms. Snyder walked around the bar as
though they were attempting to “pick a fight.” Mr. Huff notified a bartender
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of Appellee’s and Ms. Snyder’s behavior, and a bar employee escorted the
couple outside. Mr. Huff stated that as he was later loading his equipment
into his vehicle outside the bar, he heard a bottle break, turned, and saw
Victim 2 falling to the ground. Mr. Huff said he observed Victim 1 approach
Victim 2 in a manner indicating that he sought to break up the altercation.
Mr. Huff stated that as Victim 1 attempted to break up the fight, Appellee
punched Victim 1, knocking him to the ground. Mr. Huff added Appellee then
kicked Victim 1 in the head and upper torso, while Victim 1 assumed a
“defensive posture.”
The jury also heard testimony from Chandra Livingston, a bartender
working at the bar on the night of the incident. Ms. Livingston testified she
did not notice Appellee and Ms. Snyder act aggressively until Mr. Huff notified
her of two “verbally aggressive” patrons. Ms. Livingston stated that after
observing the couple’s behavior, she had them escorted out of the bar. Ms.
Livingston did not witness the physical altercation, but afterward she observed
Victim 1 unconscious on the ground outside the bar.
Trooper Andrew Mincer, the responding officer, also testified. Trooper
Mincer stated that when he arrived to the scene, Victims 1 and 2 were
receiving medical treatment. Trooper Mincer named Appellee and Ms. Snyder
as suspects after he interviewed eyewitnesses to the fight; Mr. Huff specifically
identified Appellee. Trooper Mincer also stated he unsuccessfully attempted
to interview Appellee, who refused to speak with the trooper. Trooper Mincer
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opined Victim 1 did not use unlawful force against Appellee to justify Appellee’s
attack.
The jury also heard the testimony of Trooper Mark Vanvolkenburg, who
concluded the investigation of the altercation. Trooper Vanvolkenburg
interviewed Victims 1 and 2, reviewed their medical records from the incident,
and filed charges against Appellee. Trooper Vanvolkenburg also testified
regarding three of Appellee’s prior criminal cases involving allegations of
assaultive behavior. Trooper Vanvolkenburg was not present for the prior
incidents nor did he conduct the investigations in the prior cases. Trooper
Vanvolkenburg learned of the prior incidents when he reviewed the earlier
case files during his investigation of the current incident.
As to the first prior case, Trooper Vanvolkenburg testified that in 2002,
Appellee entered a school to seek out a student with whom Appellee had a
feud. Trooper Vanvolkenburg explained Appellee refused to leave the school
and threatened the staff when they asked him to leave. The Commonwealth
charged Appellee with disorderly conduct, terroristic threats, criminal
trespass, and harassment and stalking. Ultimately, Appellee entered a guilty
plea to disorderly conduct only. After Trooper Vanvolkenburg discussed this
episode, the Commonwealth introduced and the court admitted Exhibit 5.
Exhibit 5 contained copies of the following documents in the Commonwealth’s
prosecution of Appellee for the 2002 incident: criminal complaint, criminal
information, plea order, and sentencing order.
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Trooper Vanvolkenburg also testified regarding a second prior
conviction, which stemmed from a 2004 dispute between Appellee and his ex-
girlfriend. Trooper Vanvolkenburg explained that after she had a dispute with
Appellee in the car, Appellee’s ex-girlfriend exited the vehicle, flagged down
another vehicle, and asked that vehicle’s driver to drive her away. Appellee
subsequently backed into the vehicle his ex-girlfriend entered multiple times.
The Commonwealth charged Appellee with two counts each of aggravated
assault, simple assault, recklessly endangering another person (“REAP”), and
harassment, and one count each of criminal mischief, lack of registration and
title to vehicle, careless driving, and reckless driving. Trooper Vanvolkenburg
explained Appellee entered a guilty plea to two counts each of simple assault
and REAP, and one count of criminal mischief. The Commonwealth then
introduced and the court admitted Exhibit 6, which contained the complaint,
criminal information, plea order, and sentencing order in the prosecution of
the 2004 episode.
The third prior conviction Trooper Vanvolkenburg testified to stemmed
from a 2010 bar fight, during which Appellee struck the victim in the face.
The Commonwealth charged Appellee with simple assault, harassment, and
disorderly conduct. Appellee later entered a guilty plea to one count each of
simple assault and disorderly conduct. After Trooper Vanvolkenburg’s
testimony, the Commonwealth introduced and the court admitted Exhibit 7,
which contained, inter alia, the following documents in the criminal case
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arising from the 2010 episode: complaint, criminal information, plea order,
and sentencing order. At trial, Appellee failed to object to Trooper
Vanvolkenburg’s testimony regarding all three prior convictions and the
court’s admission of Exhibits 5, 6, and 7 into evidence.
Next, Tonya Butler testified. Ms. Butler is an emergency room nurse
who treated Victims 1 and 2 following the altercation with Appellee. Ms. Butler
stated Victim 1 appeared to have memory loss as a result of the fight, because
he repeatedly asked for the whereabouts of his wife, Victim 2. Ms. Butler also
stated that Victim 1 suffered a broken nose, a concussion, and contusions on
the side of his head and face.
Dr. Waldemar Szczupak, the emergency room doctor who treated
Victims 1 and 2, testified as an expert in emergency medicine, specifically
relating to the treatment of assault victims. Dr. Szczupak stated Victim 1
presented at the hospital with a nasal fracture, swelling on his face and head
from contusions, and a serious concussion. Dr. Szczupak characterized Victim
1’s injuries from the altercation as severe.
Appellee also testified at trial. Appellee stated that when he left the bar,
he saw Ms. Snyder and Victim 2 arguing. Appellee said he watched Victim 2
raise a beer bottle in a manner indicating she was going to hit Ms. Snyder with
the bottle. Appellee explained Ms. Snyder “took [Victim 2] to the ground” and
began hitting her. Appellee testified Victim 1 then jumped on Ms. Snyder’s
back, which prompted Appellee to yell at Victim 1 to get off Ms. Snyder. When
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Victim 1 did not comply, Appellee struck Victim 1 in the head. Appellee
testified Victim 1 subsequently grabbed Ms. Snyder again, and Appellee again
told Victim 1 to let Ms. Snyder go. Appellee struck Victim 1 in the head a
second time, when Victim 1 failed to comply. Appellee stated when the same
pattern of events occurred a third time, he kicked Victim 1 once in the head,
and left the premises with Ms. Snyder. Appellee explained he struck Victim 1
merely to protect Ms. Snyder.
During cross-examination, the Commonwealth attempted to elicit
testimony from Appellee regarding his prior criminal cases. Before Appellee
responded, the court interjected and called for a side bar. Following the side
bar discussion, the court stated on the record: “Strangely [Appellee’s counsel]
is not objecting, but I would believe that it is improper and laying ground for
PCRA to have, retry these cases that were in the past. They came in without
objection…, I’m just expressing a concern about possible serious errors on the
part of the record.” (N.T. Trial, 5/8/14, at 103-04). After further side-bar
discussion, the Commonwealth changed the line of questioning and moved on.
Finally, Ms. Snyder testified. Ms. Snyder stated Victim 1 did not
physically interact with her during the altercation.
On May 8, 2014, the jury convicted Appellee of one count each of
aggravated assault and simple assault. That same day, the court convicted
Appellee of harassment, a summary offense. The court sentenced Appellee
on June 10, 2014, to an aggregate term of seventy-two (72) to one-hundred-
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fifty (150) months’ incarceration. This Court affirmed the judgment of
sentence on May 22, 2015. See Commonwealth v. Grover, No. 1708 WDA
2014, unpublished memorandum (Pa.Super. filed May 22, 2015). Appellee
sought no further direct review.
On May 20, 2016, Appellee timely filed his first pro se PCRA petition. In
his petition, Appellee alleged trial counsel was ineffective for, inter alia, failing
to object to: Trooper Vanvolkenburg’s testimony regarding Appellee’s prior
criminal cases; and the Commonwealth’s presentation of Exhibits 5, 6, and 7
as evidence. The PCRA court appointed counsel, who subsequently filed an
amended PCRA petition on September 6, 2016. The PCRA court conducted an
evidentiary hearing on May 1, 2017. On August 10, 2017, the PCRA court
granted Appellee relief, vacated the judgment of sentence, and ordered a new
trial. The Commonwealth filed a timely notice of appeal on August 28, 2017.
The PCRA court ordered the Commonwealth on August 31, 2017, to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b); the Commonwealth timely complied on September 12, 2017.
The Commonwealth raises the following issues for our review:
DID THE PCRA COURT COMMIT AN ERROR OF LAW WHEN
IT CONCLUDED THAT TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILING TO OBJECT TO THE TESTIMONY OF THE
INVESTIGATING OFFICER ON THE BASIS THAT THE
OFFICER HAD NO PERSONAL KNOWLEDGE OF [APPELLEE]’S
PRIOR CONVICTIONS DESPITE TESTIMONY FROM THE
OFFICER THAT HE WAS FAMILIAR WITH THE PREVIOUS
CASES AGAINST [APPELLEE]?
DID THE PCRA COURT COMMIT AN ERROR OF LAW WHEN
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IT CONCLUDED THAT TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILING TO OBJECT TO EXHIBITS THAT PERTAINED TO
[APPELLEE]’S PRIOR CONVICTIONS FOR ASSAULTIVE
BEHAVIOR WHERE THE SUPERIOR COURT HAD ALREADY
RULED THAT THE “TRIAL COURT PROPERLY ADMITTED” THE
SAME IN ITS OPINION OF MAY 22, 2015[?]
DID THE PCRA COURT COMMIT AN ERROR OF LAW WHEN
IT CONCLUDED THAT TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILING TO OBJECT TO [APPELLEE]’S PRIOR
CONVICTIONS OF ASSAULTIVE BEHAVIOR, THEREBY
FINDING PREJUDICE TO [APPELLEE], WHERE: (A.) THE
EVIDENCE WAS PROPERLY ADMITTED UNDER PA.R.E.
404(A)(2) AND 404(B)(2); (B.) THE JURY WAS ADVISED OF
THE OFFENSES TO WHICH [APPELLEE] PLED GUILTY; (C.)
THE TRIAL COURT GAVE AN APPROPRIATE LIMITING
INSTRUCTION; AND (D.) FAILURE TO OBJECT WAS
HARMLESS ERROR IN LIGHT OF THE OVERWHELMING
EVIDENCE OF [APPELLEE]’S GUILT?
(Commonwealth’s Brief at 2).
In its issues combined, the Commonwealth argues Trooper
Vanvolkenburg’s testimony regarding Appellee’s prior criminal cases was
admissible under Pa.R.E. 404(a)(2), 404(b)(2), and 602, and the court gave
the jury a sufficient limiting instruction regarding those prior cases. The
Commonwealth submits Appellee did not suffer undue prejudice from the
admission of the prior bad acts evidence to call the verdict into question. The
Commonwealth posits that even if the evidence of Appellee’s prior criminal
cases was improperly admitted, trial counsel’s failure to object does not
constitute ineffective assistance, where admission of the evidence was
harmless error in light of the overwhelming properly admitted evidence of
Appellee’s guilt. The Commonwealth concludes this Court should reverse the
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PCRA court’s order vacating the judgment of sentence and granting Appellee
a new trial. We agree.
Our standard of review of the grant or denial of a PCRA petition is limited
to examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error. Commonwealth
v. Conway, 14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687,
29 A.3d 795 (2011). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d
1190, 1194 (Pa.Super. 2012).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). Under the
traditional analysis, to prevail on a claim of ineffective assistance of counsel,
a petitioner bears the burden to prove his claims by a preponderance of the
evidence. Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007),
appeal denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must
demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable strategic basis for the asserted action or inaction; and (3) but
for the errors and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. Id. See also
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Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).
The actual prejudice required under Strickland/Pierce2 is a higher
standard than the harmless error analysis typically applied to allegations of
trial court errors. Commonwealth v. Gribble, 580 Pa. 647, 676, 863 A.2d
455, 472 (2004).
Prejudice is established when [a defendant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The defendant must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In [Kimball, supra], we held that a criminal
defendant alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(internal citations and quotation marks omitted). In other words, the “actual
prejudice” standard is, as a general and practical matter, a more exacting
standard, when litigated through the lens of counsel ineffectiveness, which
makes it more difficult for the defendant to prevail. Gribble, supra at 676,
863 A.2d at 472. Under the Pierce prejudice standard, the petitioner must
show that counsel’s conduct had an actual adverse influence on the outcome
of the proceedings because, in a collateral attack, we “presume counsel is
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2 Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674, ___ (1984); Commonwealth v. Pierce, 537 Pa. 514, 524, 645
A.2d 189, 194 (1994).
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effective, and that not every error by counsel can or will result in a
constitutional violation of a defendant's Sixth Amendment right to counsel.”
Commonwealth v. Howard, 538 Pa. 86, 100, 645 A.2d 1300, 1307 (1994).
In determining prejudice in the context of ineffective assistance of
counsel, a court “must consider the totality of the evidence before the judge
or jury.” Commonwealth v. Simmons, 569 Pa. 405, 430, 804 A.2d 625,
640 (2001). “If it is clear that the prejudice prong cannot be met, the claim
may be dismissed on that basis alone and there is no need to examine the
other two prongs.” Commonwealth v. Arroyo, 555 Pa. 125, 144, 723 A.2d
162, 171 (1999). See also Commonwealth v. Steele, 599 Pa. 341, 360,
961 A.2d 786, 797 (2008) (stating: “Where it is clear that a petitioner has
failed to meet any of the three, distinct prongs of the [ineffective assistance
of counsel] test, the claim may be disposed of on that basis alone, without a
determination of whether the other two prongs have been met”).
Instantly, the jury heard testimony from several other witnesses who
described Appellee’s assault on Victim 1. Both Victim 2 and Mr. Huff explained
Appellee punched and kicked Victim 1. Victim 2 also stated Appellee continued
to attack Victim 1 after he fell unconscious. Mr. Huff added Appellee knocked
Victim 1 to the ground and kicked Victim 1 in the upper body while Victim 1
assumed a defensive posture. Trooper Mincer, the responding officer,
explained he interviewed eyewitnesses to the altercation and identified
Appellee and Ms. Snyder as suspects. Dr. Szczupak, who treated Victim 1
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after the fight, testified Victim 1’s injuries were severe and consistent with
repeated blows to the head. Notably, Appellee conceded he struck Victim 1
several times during the altercation. Appellee testified he did not start the
fight, but he did hit Victim 1 because Victim 1 had allegedly attacked Ms.
Snyder. Ms. Snyder, however, unequivocally testified that Victim 1 made no
physical contact with her throughout the ordeal.
Viewing the prejudice question under the proper standard, the totality
of admissible evidence overwhelmingly demonstrated Appellee’s guilt,
notwithstanding trial counsel’s failure to object to Appellee’s prior bad acts.
See Chambers, supra; Simmons, supra. Given the strength of the
Commonwealth’s evidence as a whole against Appellee, we conclude Appellee
failed to satisfy his burden to prove trial counsel’s omission had an actual
adverse effect on the jury’s verdict, to warrant a new trial. See Chambers,
supra; Gribble, supra. Based on the foregoing, Appellee’s claim of
ineffective assistance of counsel fails. See Arroyo, supra. Accordingly, we
vacate the PCRA court’s order granting Appellee a new trial and reinstate the
judgment of sentence.
Order vacated; judgment of sentence reinstated.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2019
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