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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARREN RICHARD GENTILQUORE :
:
Appellant : No. 295 MDA 2019
Appeal from the PCRA Order Entered January 14, 2019
In the Court of Common Pleas of Susquehanna County Criminal Division
at No(s): CP-58-CR-0000183-2006
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY BOWES, J.: FILED: MARCH 18, 2020
Darren Richard Gentilquore appeals from the order denying his petition
filed pursuant to the Post-Conviction Relief Act (“PCRA”). Upon review, we
affirm.
A previous panel of this Court summarized the relevant factual history
of this case as follows:
In 2005, Shaun Bigelow (“Shaun”), a resident of New
Jersey, purchased property in Susquehanna County,
Pennsylvania, that bordered [Appellant’s] property. Shaun and
[Appellant] became friends. On May 26, 2006, Shaun and his
brother, Ryan Bigelow (“Ryan”) (collectively “the Bigelows”),
along with their wives and children, arrived at Shaun's property
to camp for Memorial Day [w]eekend.
Tommy McCormick (“McCormick”), another neighbor of
Shaun’s, invited the Bigelows to come to his property to sit around
the fire. After the Bigelows’ wives and children went to bed,
Shaun and Ryan rode their ATVs to McCormick’s property.
[Appellant] began to follow the Bigelows on his [all-terrain vehicle
(“ATV”)]. While on the trail to McCormick’s property, Ryan slowed
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down and [Appellant] ran his ATV into the back of Ryan's ATV,
causing damage. [Appellant] agreed to pay for the damage,
resolving the situation without any incident.
The Bigelows, [Appellant], McCormick, Jim Velcheck, and
two of McCormick’s guests sat around the fire and imbibed
alcoholic beverages. After a few hours, Ryan left the McCormick’s
[property] to go back to Shaun’s property. Later in the evening,
[Appellant] started a fight with McCormick’s guest, Anthony
Saverino (“Saverino”). Saverino and McCormick asked
[Appellant] to leave McCormick’s property and [Appellant]
obliged. Shortly after [Appellant] left, gunshots were fired. The
gunshots woke the Bigelows’ wives and children. Shaun’s wife
yelled to [Appellant] to stop shooting because it was scaring the
kids. There was a pause in the shooting, but shortly thereafter,
gunshots began again. Ryan decided he was going to go to
[Appellant’s] property to tell him to stop.
Ryan went to [Appellant’s] property, began banging on the
storm door, and “told him to cut this shit.” [Appellant] did not
respond to Ryan. Ryan told [Appellant] to come outside and
yelled, “Stop shooting the fucking gun, I got kids that are sleeping
down there and you're scaring the shit out of them.” [Appellant]
did not respond so Ryan got back on his ATV and began to head
towards McCormick’s property to get Shaun. Ryan believed that
Shaun would be able to get [Appellant] to stop shooting the gun
since they were friends.
The Bigelows rode their ATVs from McCormick’s property to
[Appellant’s] property. Shaun arrived first and quietly knocked on
the door. When Ryan arrived, he ran his ATV into [Appellant’s]
ATV because he was angry and as retaliation for [Appellant]
hitting his ATV earlier in the evening. Ryan proceeded to come to
[Appellant’s] front door to his house and bang on the door.
[Appellant] came to the front door with a gun. Shaun said to
Ryan, “Ryan, let it go he's got a gun, let it go, we'll deal with it
tomorrow.” Ryan approached the door, at which time, [Appellant]
told him to get off his property or else he was going to “blow the
barrel.” Ryan told [Appellant] if he did not come outside and face
him without a gun, he would “gut him like a pig” and threatened
to burn his house down.
[Appellant] proceeded to stick the barrel of the gun out of
the storm door and poked Ryan with the gun. Ryan then called
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[Appellant] “a fucking pussy” and said, “you don't have a hair on
your ass to pull that trigger.” [Appellant] pulled the trigger,
shooting Ryan in the abdomen at point blank range. Shaun began
screaming at [Appellant], “Darren what the fuck are you doing?
It's Shaun, it's Shaun, what are you doing.” [Appellant] turned
towards Shaun and shot him in the abdomen.
Commonwealth v. Gentilquore, 107 A.3d 222 (Pa.Super. 2014)
(unpublished).
Appellant was charged with two counts of attempted homicide and four
counts of aggravated assault. Appellant proceeded to a jury trial, where he
testified that he acted in self-defense, but was convicted on all charges. On
December 21, 2006, Appellant was sentenced to two consecutive terms of
twenty to forty years of imprisonment at the attempted homicide convictions.
Appellant received no further penalty on the remaining charges, which merged
with the attempted homicide counts.
Appellant filed a timely notice of appeal. On appeal, Appellant sought
to challenge the discretionary aspects of his sentence. However, after counsel
failed to file a Pa.R.A.P. 2119(f) statement and the Commonwealth objected,
we deemed Appellant’s challenges to the discretionary aspects of his sentence
waived and affirmed his judgment of sentence. Commonwealth v.
Gentilquore, 938 A.2d 1113 (Pa.Super. 2007) (unpublished memorandum).
Appellant filed a timely pro se PCRA petition and amended it several
times, thereafter. The petition included allegations that, inter alia, his
appellate counsel was ineffective for failing to include the Rule 2119(f)
statement in his appellate brief. After two hearings, the PCRA court found
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that Appellant’s PCRA counsel had a conflict of interest, due to the fact that
he shared office space, sometimes worked with, and often praised the
attorney whose ineffectiveness Appellant sought to attack in his petition. See
N.T. PCRA Hearing, 4/30/18, at 24. New counsel filed another amended PCRA
petition. On July 12, 2010, the PCRA court issued an order and opinion
denying Appellant’s motions and amended PCRA petition. On appeal, we
issued an order vacating the PCRA court’s July 12, 2010 dismissal, since it
failed to first give notice of its intention to dismiss the petition pursuant to
Pa.R.Crim.P. 907(1). Commonwealth v. Gentilquore, 38 A.3d 924
(Pa.Super. 2011) (unpublished memorandum).
On remand, the PCRA court issued a proper Pa.R.Crim.P. 907(1) notice
of its intent to dismiss Appellant’s petition. After several defense continuances
were granted, Appellant filed an amended PCRA petition and response to the
court’s notice of intent to dismiss. The PCRA court issued an order and
opinion, addressing Appellant’s fifteen claims of counsel ineffectiveness and
an allegation that the newly-enacted castle doctrine applied to him, and
denying the petition without a hearing.
A timely appeal followed. On appeal, Appellant raised several
allegations of ineffectiveness, including an allegation that appellate counsel
was ineffective for failing to include a Rule 2119(f) statement in his appellate
brief. We agreed and found that appellate counsel’s ineffectiveness
compromised Appellant’s direct appellate rights. Commonwealth v.
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Gentilquore, 87 A.3d 381 (Pa.Super. 2013) (unpublished). Without reaching
any other issues, we reversed the PCRA court’s order and remanded to the
case to the PCRA court, directing it to reinstate Appellant’s direct appeal rights
nunc pro tunc. Id.
On reinstated direct appeal, Appellant challenged the trial court’s
admission of testimony about his state of mind and prior bad acts, along with
its inclusion of color photographs that depicted the Bigelows’ injuries. We
affirmed Appellant’s judgment of sentence, and Our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v.
Gentilquore, 107 A.3d 222 (Pa.Super. 2014) (unpublished memorandum)
appeal denied 113 A.3d 278 (Pa. 2015).
Appellant filed a timely pro se PCRA petition. Counsel was appointed
and, on Appellant’s behalf, filed an amended PCRA petition raising fourteen
issues of trial counsel ineffectiveness. After several continuances, an
evidentiary hearing was held on March 29, 2018. At the hearing, Appellant’s
trial counsel, Paul Walker and Matthew Comerford, both testified. After each
side submitted post-hearing briefs, the PCRA court denied the petition. This
timely appeal followed. The PCRA court issued its Pa.R.A.P. 1925(a) opinion
without directing that Appellant file a concise statement of errors complained
of on appeal pursuant to Rule 1925(b).
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Appellant raises the following question for our consideration:
Whether [Appellant] was denied his right to a fair trial through the
ineffective assistance of counsel, when trial counsel failed to file
pretrial motions to investigate expert testimony, introduce
evidence of the victim’s intoxication and failed to object to the
introduction of an irrelevant “assault rifle” at trial.
Appellant’s brief at 7.
We begin with a review of the applicable law. “This Court’s standard of
review regarding an order denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the evidence of record and is
free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.
2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA
court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684,
688 (Pa.Super. 2012).
Appellant alleges three claims of ineffective assistance of counsel. We
consider them mindful of the fact that counsel is presumed to be effective,
and a PCRA petitioner bears the burden of proving otherwise.
Commonwealth v. Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so,
the petitioner must plead and prove (1) the legal claim underlying his
ineffectiveness claim has arguable merit; (2) counsel’s decision to act (or not)
lacked a reasonable basis designed to effectuate the petitioner’s interests; and
(3) prejudice resulted. Id. The failure to establish any prong is fatal to the
claim. Id. at 113.
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First, Appellant attacks his counsels’ failure to call an expert witness to
explain the “flight-or-fight response,” which he alleges is the reason he felt
compelled to shoot his two unarmed neighbors. Appellant’s brief at 22. The
PCRA court found, and the Commonwealth agreed, that Appellant’s allegation
lacked arguable merit as it amounted to “nothing but speculation [on] what
an expert would have opined as to fight[-]or[-]flight response.” PCRA Court
Opinion, 3/12/19, at 6. We discern no abuse of discretion in the PCRA court’s
reasoning.
In order to satisfy a claim of ineffectiveness based upon trial counsel’s
failure to call an expert witness, Appellant must prove that an expert witness
was willing and available to testify on the subject at trial, that counsel knew
or should have known about the witness, and that he was prejudiced by the
absence of the testimony. See Commonwealth v. Chmiel, 30 A.3d 1111,
1143 (Pa. 2011). Additionally, we note that this Court may affirm the decision
of the lower court on any proper ground that is supported by the record. See
Commonwealth v. Judge, 916 A.2d 511, 517 n.11 (Pa. 2007).
A review of the record reveals that Appellant has never tendered the
existence or availability of an actual expert on the flight or fight response. As
a result, he has also been unable to articulate what testimony would have
been available to him at trial had his attorney acquired such a witness. This
failure to support his allegations with any substantive evidence undermines
his claim. See Commonwealth v. Wayne, 720 A.2d at 456, 470-71 (Pa.
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1998) (“The mere failure to obtain an expert rebuttal witness is not
ineffectiveness. Appellant must demonstrate that an expert witness was
available who would have offered testimony designed to advance [A]ppellant’s
cause.”).
Second, Appellant alleges that counsel were ineffective for failing to file
a pre-trial motion seeking the blood alcohol content (“BAC”) of the victims.
See Appellant’s brief at 28. Appellant argues that this evidence was necessary
to establish “the situation on the ground as [Appellant] saw it,” since the
victims’ impairment enhanced the reasonableness of Appellant’s belief that he
was at risk of death or serious bodily injury. Id. at 29-30. The PCRA court
denied the claim, finding that Appellant had failed to prove that his trial
counsel did not have a reasonable basis for their inaction or that the BAC
evidence would have changed the outcome. See PCRA Court Opinion,
3/12/19, at 5. The record supports the PCRA court’s findings.
At the PCRA hearing, Attorney Walker testified that he did not seek the
BAC of the victims because he did not think that it would have been helpful.
See N.T. PCRA Hearing, 3/29/18, at 15. In his view, the relevant facts were
given to the jury, which were that the victims had been drinking, and that at
least one of them had been known to “do stupid things” when he drinks. Id.
at 25. Attorney Comeford agreed, adding that the evidence “could have cut
both ways,” a reasoning that, if the BAC results showed that the victims were
“severely intoxicated,” the jury could have viewed the victims as being
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“helpless and more vulnerable” to Appellant instead of as a danger to
Appellant. Id. at 58-59.
At trial, both victims admitted that they were intoxicated on the night
of the shooting. Specifically, Shaun testified and admitted that he and his
brother, Ryan, were drinking on the night of the shootings and that he drank
beer and brandy. See N.T., Jury Trial, 11/13/06, at 73-76. Ryan also
conceded that he and his brother, Shaun, had been drinking on the night of
the incident and that he consumed about six bottles of Mike’s Hard Lemonade.
Id. at 299-300. Finally, Donna Bigelow, wife of Ryan, testified that her
husband had been drinking on the night of the shootings. Id. 345.
The record supports the PCRA court’s conclusion that Appellant’s
attorneys gave reasonable explanations for their strategic inaction, which
were supported by the jury trial transcript. Appellant has failed to persuade
us that awareness of the exact BAC levels of the victims would have changed
the outcome of his trial. Accordingly, the PCRA court did not abuse its
discretion and no relief is due.
Finally, Appellant argues that trial counsel were ineffective for failing to
file a motion in limine to bar the admission of the AR-15 rifle into evidence
and for failing to object to its admission at trial. See Appellant’s brief at 30-
31. Without providing any citations to the record or relevant authority,
Appellant alleges that the firearm was irrelevant and highly prejudicial
because it was not the weapon which Appellant used to shoot the victims. Id.
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at 31-33. Therefore, its inclusion allowed the jury to infer that Appellant was
the aggressor solely because he owned a controversial firearm. Id.
The PCRA court held that Appellant’s claim was meritless, since he
introduced the existence of the AR-15 when he testified. See PCRA Court
Opinion, 3/12/19, at 7. We disagree that Appellant introduced the existence
of the AR-15, since the gun itself was admitted as a Commonwealth exhibit
before Appellant testified. See N.T. Jury Trial, 11/15/06, at 5. However, we
agree that Appellant’s own testimony discussed the AR-15’s role in the night’s
events and, thus, was at a minimum relevant to rebut his defense that he was
afraid. Accordingly, we discern no abuse of discretion in the PCRA court’s
conclusion that Appellant is not entitled to relief on his final claim.
At trial, Appellant testified that he collected guns as a hobby and had
been teaching his family how to shoot them in the back yard. Id. at 22-23.
He mentioned multiple different types of guns that he would shoot “all of the
time” and stated that, as a result, there “are probably thousands of spent
rounds all over the ground” in his yard. Id. at 25. Notably, Appellant shared
an anecdote with the jury about an event prior to the incident with the victims,
where he gave his minor step-son his AR-15 and asked him to test a huge
piece of bullet-proof fiberglass that “they use to line the County buildings” to
see if it was actually bullet proof. Id. at 26.
The night of the shooting, Appellant testified that he went home from a
party, which the victims both attended, and began shooting rounds from his
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AR-15 into the woods. Id. at 53. After he heard yelling, he went inside and
put the gun in his safe. Id. at 54. A short time later, the victims came to his
property and began damaging his ATV by ramming into it with one of their
ATVs. Appellant observed this and yelled at his minor step-son that “we got
a problem coming,” grabbed his AR-15 and his 12 gauge shot-gun, loaded
both of them, and gave the AR-15 to his step-son. Id. at 59.
Next, Appellant explained that the front door to his home opened
accidentally when he was checking to make sure that it was locked. Id. at
63. The victims were on the other side of it. He advised them to get off of
his property or he would be forced to shoot them with his gun. Id. at 64.
After the victims threatened to “gut him like a pig” and that they would “burn
his house down” if he did not come outside and face them without a weapon,
Appellant testified that he felt compelled to shoot them in order to defend
himself, his family, and their home. Id. at 70-71. Appellant than shot each
victim once in the torso with his 12-gauge shotgun.
A review of the trial transcript reveals that Appellant’s own testimony
places the AR-15 at the center of incident, as he expressly conceded that it
was his firing of this weapon that initiated the series of events that followed.
As a result, Appellant’s own testimony rendered the weapon highly relevant.
Therefore, any objection to testimony surrounding the existence of the AR-15
would have been meritless. Further, Appellant has not persuaded us that the
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verdict would have been different if the actual gun had not been shown to the
jury.
Accordingly, having determined that Appellant has failed to meet his
burden of convincing this Court that the PCRA court erred and that relief is
due, we affirm the order denying his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/18/2020
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