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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRIAN JAMES-PAUL HINES
Appellant No. 981 EDA 2016
Appeal from the PCRA Order February 18, 2016
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000843-2009
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED OCTOBER 31, 2016
Appellant, Brian James-Paul Hines, appeals from the February 18,
2016 order, denying his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On November 9, 2009, following a confrontation regarding a stolen
heater, Appellant shot Gary Hoffner in the face.1 Appellant turned himself in
to the Pennsylvania State Police. He was advised of his Miranda2 rights and
gave two statements to state troopers. In his first statement, Appellant
claimed that Mr. Hoffner drew a gun first, and during the ensuing struggle,
the gun went off. Several hours later, after further questioning, Appellant
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1
See PCRA Court Opinion (PCO), 5/5/16, at 2-4, for a more detailed factual
history of this case.
2
Miranda v. Arizona, 86 S. Ct. 1602 (1966).
*
Former Justice specially assigned to the Superior Court.
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gave a second statement, in which he admitted he had brought the gun to
the scene and shot Mr. Hoffner.
Prior to trial, Appellant filed a motion to suppress the second
statement, alleging that it was the product of a coercive interrogation.
Appellant did not testify at the suppression hearing. After testimony and
argument, the suppression court denied Appellant’s motion.
A jury trial commenced July 18, 2011, and concluded on July 20,
2011. The jury found Appellant not guilty of attempted murder 3 but did find
him guilty of the remaining charges: aggravated assault, firearms not to be
carried without a license, simple assault, recklessly endangering another
person, and terroristic threats. 4
On October 17, 2011, and by amended order dated October 19, 2011,
the trial court sentenced Appellant to 72 to 144 months of incarceration for
aggravated assault and a consecutive 12 to 24 months of incarceration for
firearms not to be carried without a license, followed by four years of
probation.5 Appellant retained new counsel for post-sentence proceedings.6
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3
18 Pa.C.S. § 901(a).
4
18 Pa.C.S. § 2702; 18 Pa.C.S. § 6106; 18 Pa.C.S. § 2701; 18 Pa.C.S. §
2705; 18 Pa.C.S. § 2706(a)(1), respectively. The trial court dismissed with
prejudice the charge of terroristic threats.
5
For purposes of sentencing, the sentences for simple assault and REAP
merged with the sentence for aggravated assault.
6
The procedural history following Appellant’s sentence is somewhat
complicated. Post-sentence counsel did not perfect Appellant’s direct
appeal. Subsequently, Appellant pro se filed a PCRA petition raising
allegations of ineffective assistance of counsel and governmental
(Footnote Continued Next Page)
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Appellant timely filed a direct appeal and court-ordered Pa.R.A.P.
1925(b) statement, and the trial court issued a responsive opinion.
On July 14, 2014, this Court affirmed Appellant’s judgment of sentence
and dismissed his claims relating to ineffective assistance of counsel without
prejudice, as no colloquy had been conducted to determine whether
Appellant had waived his right to PCRA review. See Commonwealth v.
Hines, 105 A.3d 789 (Pa. Super. 2014) (unpublished memorandum).
Appellant did not petition the Pennsylvania Supreme Court for allowance of
appeal.
On January 17, 2015, Appellant pro se filed a timely PCRA petition.7
Appointed counsel filed an amended petition on July 30, 2015. Appellant
contended that trial counsel, Stephen Vlossak, was ineffective for failing to
request a mistrial during the testimony of Trooper Patrick Finn; in advising
Appellant not to testify at the suppression hearing and at trial; for failing to
object and request a mistrial during the prosecutor’s closing argument; and
for failing to pursue Appellant’s claim that his initials on his statement were
_______________________
(Footnote Continued)
interference. The PCRA court held evidentiary hearings on December 18,
2012, and February 21, 2013. Following the evidentiary hearings, the PCRA
court reinstated Appellant’s direct appeal rights nunc pro tunc. See PCRA
Court Memorandum Opinion, 3/1/13, at 1-6.
7
See Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa. Super. 2013)
(noting that when a petitioner’s direct appeal rights are reinstated nunc pro
tunc in his first PCRA petition, a subsequent PCRA petition will be considered
a first petition for timeliness purposes.)
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forged, a claim he later abandoned on appeal. Amended PCRA Petition at
¶ 18.
The PCRA court held an evidentiary hearing on October 15, 2015.
Appellant testified that his second statement to the police was the result of
coercive interrogation tactics and not voluntarily given, and that although he
wished to testify at the suppression hearing and at trial, Mr. Vlossak advised
him against it. See Notes of Testimony (N. T.), PCRA evidentiary hearing,
10/15/15, at 10-20, 24-26. Appellant admitted counsel informed him of his
right to testify but claimed that he did not prepare and would not have
known what to do on the stand. Id. at 26.
Mr. Vlossak, on the other hand, stated that Appellant did not express
a desire to testify at the suppression hearing, and he advised Appellant not
to testify. See N. T., at 45. He recommended Appellant not testify at trial
after Appellant gave a “new” version of the shooting. Id. at 52. Mr. Vlossak
was concerned that Appellant’s differing accounts of the events would render
his testimony unbelievable. Id. at 52-54. He discussed this
recommendation again at the close of the Commonwealth’s case with
Appellant and his family. Id. at 52-54.
With regard to Appellant’s other issues, Mr. Vlossak made numerous
objections to Trooper Finn’s statements and assumed that, as a result, the
jury would understand that the testimony was improper. See N. T., at 56.
Thus, he did not feel a mistrial was warranted. Id. at 60-61. Mr. Vlossak
suggested that he does not interrupt another attorney’s closing argument
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out of respect. See N. T., at 62-63. Rather, he waits until his opponent has
finished before asking for a specific instruction from the judge, which he did
in the instant matter. Id. at 63.
On February 18, 2016, the trial court issued a memorandum opinion
denying Appellant’s petition. Appellant timely appealed and filed a court-
ordered Pa.R.A.P. 1925(b) statement.
Appellant raises five issues on appeal, all relating to ineffective
assistance of counsel:
1. Did the trial court err in not finding that trial counsel was
ineffective for advising the defendant not to testify at the pre-
trial suppression hearing?
2. Did the trial court err in not finding that trial counsel was
ineffective for advising defendant not to testify at trial?
3. Did the trial court err in not finding that trial counsel was . . .
ineffective for failing to repeatedly object and seek[] a mistrial
when the investigating state trooper rendered his personal
opinion that the defendant had lied?
4. Did the trial court err in not finding that trial counsel was
ineffective for not objecting to, seeking an immediate curative
instruction and not seeking a mistrial during the prosecutor’s
closing argument in which he repeatedly expressed his personal
opinion that defendant lied while at the same time bolstering the
testimony of prosecution witnesses?
5. Did the trial court err in not finding that the cumulative effect
of trial counsel’s errors prejudiced defendant to such an extent
as to deprive him of a fair trial?
Appellant’s Brief at 3-4.
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
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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)).
Appellant raises a number of issues relating to ineffective assistance of
counsel. Ultimately, they are meritless.
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).
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In his first issue, Appellant contends that counsel was ineffective for
advising Appellant not to testify at the pre-trial suppression hearing.
According to Appellant, had he testified, he would have “explained the
coercive nature” of the interviews. Additionally, he claims the decision not
to testify had no reasonable basis, as the scope of any direct examination
could have been limited to the interrogation interview. Appellant’s Brief at
11 (citing Pa.R.Crim.P. 581(H) (“The defendant may testify at [a
suppression] hearing, and if the defendant does testify, the defendant does
not thereby waive the right to remain silent during trial.”)). Appellant’s
claim is without merit.
A decision to testify on one’s own behalf is, ultimately,
to be made by the accused after full consultation with counsel.
In order to support a claim that counsel was ineffective for
failing to call the appellant to the stand, the appellant must
demonstrate either that (1) counsel interfered with his client’s
freedom to testify, or (2) counsel gave specific advice so
unreasonable as to vitiate a knowing and intelligent decision by
the client not to testify on his own behalf.
Commonwealth v. Todd, 820 A.2d 707, 711 (Pa. Super. 2003) (quoting
Commonwealth v. Thomas, 783 A.2d 328, 334 (Pa. Super. 2001)).
Counsel is not ineffective where the decision not to call the defendant was
reasonable. Id. at 711; see also Commonwealth v. Haynes, 577 A.2d
564, 569 (Pa. Super. 1990) (noting that counsel does not act unreasonably
when he advises a defendant not to testify at a suppression hearing to
strategically avoid revealing the contents of testimony in advance of trial).
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Counsel and Appellant testified at evidentiary hearings during the
pendency of both Appellant’s first and second PCRAs and the PCRA court,
examining both evidentiary hearings, found credible trial counsel’s testimony
regarding his concern that Appellant would be subject to cross-examination
by the prosecution, which would enable them to obtain additional evidence
prior to trial, and that he discussed this concern with Appellant. See
Brown, 48 A.3d at 1277 (noting that the findings of the PCRA court are
treated with deference if supported by the record). Appellant himself admits
that counsel advised him of his right to testify. Thus, Appellant cannot
demonstrate that trial counsel interfered with his freedom to testify, nor can
he demonstrate that the advice given was so unreasonable as to render him
unable to make a knowing and intelligent decision regarding his testimony.
See Haynes, 577 A.2d at 569.
Moreover, although Appellant claims that the direct examination could
have been limited to the interrogation, his point is unconvincing. While
direct examination may be limited, the right of cross-examination “extends
beyond the subjects testified to on direct examination.” See
Commonwealth v. Travaglia, 661 A.2d 352, 360 (Pa. 1995) (citing
Commonwealth v. Dobrolenski, 334 A.2d 268, 273 (Pa. 1975) (“The
privilege against self-incrimination does not entirely shield a criminal
defendant from cross-examination.”))
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Next, Appellant claims trial counsel was ineffective for advising
Appellant not to testify at trial. According to Appellant, he could have
explained “his side” of the story, namely that the second statement was not
made voluntarily. Appellant’s Brief at 16-18. Appellant’s claim is without
merit.
As noted above, Appellant must demonstrate either that counsel
interfered with his freedom to testify, or that counsel gave specific advice so
unreasonable that his decision was not knowing and intelligent; however,
counsel is not ineffective where the decision not to call Appellant to the
stand was reasonable. See Todd, 820 A.2d at 711.
In the instant case, the PCRA court credited counsel’s testimony that
Appellant’s differing accounts of the shooting was problematic and, if
subjected to cross-examination, would undercut counsel’s strategy of relying
upon Appellant’s first statement to the police. After counsel made that
recommendation, Appellant did not request to testify at trial again. We
defer to the PCRA court’s credibility determinations. See Brown, 48 A.3d at
1277. Counsel’s express concern that Appellant’s testimony would be
impeached by the contents of his second statement was reasonable.
Accordingly, counsel was not ineffective. See Todd, 820 A.2d at 711.
Appellant next claims that trial counsel was ineffective for not
objecting to and failing to request a mistrial after Trooper Patrick Finn
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testified that Appellant had lied in his first statement, 8 which usurped the
jury’s fact-finding function. We disagree, as the statement did not implicate
the trooper’s personal belief in Appellant’s guilt, and to the extent that it
may be interpreted in that light, it was not prejudicial.
A mistrial is to be granted “only when an incident is of such a nature
that its unavoidable effect is to deprive Appellant of a fair trial.”
Commonwealth v. Johnson, 815 A.2d 563, 576 (Pa. 2002). Additionally,
we have consistently held that a defendant is “entitled to a fair trial, not a
perfect one.” Commonwealth v. English, 699 A.2d 710, 715 (Pa. 1997).
Further, this Court has previously held that a police officer’s remarks, while
improper, do not necessarily have the unavoidable effect of prejudicing a
jury when made in the course of explaining the officer’s investigatory
process. See generally Commonwealth v. Mancini, 490 A.2d 1377, 1389
(Pa. Super. 1985). The situation is similar to our analysis when a prosecutor
makes improper comments during a closing argument. See, e.g.,
Commonwealth v. Chmiel, 30 A.3d 1111, 1146-47 (Pa. 2011) (citation
omitted) (noting that comments by a prosecutor constitute reversible error
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8
Trooper Finn made statements such as: “you can hear in the interview he
didn’t know because he was making it up;” “he was thinking of what to say;”
“I was questioning him about his inconsistency to see if he could tell the
truth, which he eventually did;” “he was sticking to his initial story, which I
knew was not the truth;” “I am not going to keep questioning him on the
same thing and document his same non-truths;” “eventually he told the
truth” and “he eventually changed his story dramatically.” See Notes of
Testimony (N. T. Trial), 7/18/11—7/20/11, at 122-23, 137, 141.
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only where their unavoidable effect is to prejudice the jury such that they
could not weigh the evidence objectively).
The record reflects that trial counsel did object four times to this
testimony, and the trial court sustained three of those objections. See N. T.
Trial at 122-23, 141. Appellant identifies three other instances in which
Trooper Finn commented on Appellant’s veracity and counsel did not object.
Id. at 137, 141. However, prior to questioning Appellant, Trooper Finn had
spoken with Mr. Hoffner and heard his version of events. Id. at 112.
Trooper Finn continued to question Appellant based on inconsistencies with
Appellant’s story, his statement, his girlfriend’s statement, and the victim’s
and witness’s statements, all of which were eventually presented to the jury.
Id. at 140.
Thus, we find that the testimony to which Appellant objects was
intended to explain Trooper Finn’s process of investigation and the reasons
he continued to question Appellant following the first statement. Further, to
the extent that Trooper Finn’s remarks constitute improper opinion
testimony, they were not prejudicial. The Commonwealth presented
testimony, including that of Mr. Hoffner and his stepson, to show that other
witnesses had already spoken to police officers prior to their interviewing
Appellant and that the versions of events given by both parties differed
significantly. Thus, the comments would not have had the unavoidable
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effect of prejudicing the jury, as Trooper Finn’s remarks did not constitute
the sole evidence Appellant’s testimony may not have been credible.
Finally, the trial court issued an extensive jury charge informing the
jury that the credibility of witnesses was within their sole purview. See
N. T. Trial at 335, 336, 342-43. We presume the jury follows the
instructions of the court. Commonwealth v. Cash, 137 A.3d 1262, 1280
(Pa. 2016). Thus, Appellant has not shown how these remarks would have
had an unavoidable effect on the jury, and counsel was not ineffective for
failing to request a mistrial. See Commonwealth v. Manley, 985 A.2d
256, 266-67 (Pa. Super. 2009) (noting that the trial court may cure taint by
issuing curative instructions).
Next, Appellant claims counsel was ineffective for his failure to object
to the prosecutor’s closing argument; his failure to seek an immediate
curative instruction following the prosecutor’s closing argument; and his
failure to seek a mistrial following the prosecutor’s closing argument.
According to Appellant, the prosecutor’s remarks were improper. Appellant
explains that the prosecutor’s argument was not “brief, passing, references
to the prosecutor’s opinion regarding the witnesses’ truthfulness, but rather,
blatant bolstering of Commonwealth witnesses and attacks on the credibility
of [Appellant] and his girlfriend.” Appellant’s Brief at 23-28.
We note the following:
The Commonwealth is entitled to comment during closing
arguments on matters that might otherwise be objectionable or
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even outright misconduct, where such comments constitute fair
response to matters raised by the defense, or where they are
merely responsive to actual evidence admitted during a trial.
See Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243,
249 (2000) (plurality opinion) (“A remark by a prosecutor,
otherwise improper, may be appropriate if it is in fair response to
the argument and comment of defense counsel.”) (citing United
States v. Robinson, 485 U.S. 25, 31, 108 S.Ct. 864, 99
L.Ed.2d 23 (1998)); Commonwealth v. Marrero, 546 Pa. 596,
687 A.2d 1102, 1109 (1996). Furthermore, prosecutorial
misconduct will not be found where comments were based on
the evidence or proper inferences therefrom or were only
oratorical flair.” Commonwealth v. Jones, 542 Pa. 464, 668
A.2d 491, 514 (1995).
Commonwealth v. Culver, 51 A.3d 866, 876 (Pa. Super. 2012); see also
Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009). A trial
court may remove taint through curative instructions. See Manley, 985
A.2d at 266-67.
We have reviewed all of the remarks highlighted by Appellant, and we
conclude that there was no prosecutorial misconduct during the closing
argument. Trial counsel attacked Mr. Hoffner’s credibility, including his
conviction for burglary, alleged unauthorized entry into Appellant’s van, and
inconsistent testimony between Mr. Hoffner and another Commonwealth
witness. Additionally, trial counsel referred to Appellant’s first and second
statement, and he argued that the evidence supported the first version of
events, while the second statement was coerced.
Thus, the prosecutor’s statements, implying that Appellant and other
defense witnesses may not have been credible, were “based on the evidence
or proper inferences therefrom.” Jones, 668 A.2d at 514. Evidence was in
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fact introduced to show that Appellant had given police contradictory
statements, relied upon arguing that one statement was more reliable than
the other, and argued repeatedly that the victim’s testimony was not
credible. The prosecutor fairly responded to trial counsel’s arguments,
based on the evidence and reasonable inferences drawn therefrom, and did
not present his own opinion as to Appellant’s guilt or innocence. See
Culver, 51 A.3d at 876.
Appellant contends that if trial counsel had objected and immediately
moved for a mistrial, this mistrial would have been granted. We disagree.
First, while Appellant’s trial counsel did not immediately object to any of
these statements, nor did he request a mistrial at sidebar; the trial court did
make a charge to the jury that it was the jurors’ responsibility to determine
the truthfulness of witnesses. See N. T. Trial, 306-07. We have not
identified any clear prosecutorial error in the portions of the
Commonwealth’s closing argument cited by Appellant; these statements
were either unobjectionable, oratorical flair, or fair response to arguments
made by the defense. See Culver, 51 A.3d at 876. Accordingly, the PCRA
court’s dismissal of this claim was supported by the record and free of legal
error.
Finally, Appellant claims that the cumulative effect of these errors
deprived him of a fair trial. Appellant’s Brief at 31. The Pennsylvania
Supreme Court has stated that:
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It is well-settled that no number of failed ineffectiveness claims
may collectively warrant relief if they fail to do so individually.
Accordingly, where ineffectiveness claims are rejected for lack of
arguable merit, there is no basis for an accumulation claim.
When the failure of the individual claims is grounded in lack of
prejudice, however, then the cumulative prejudice from those
individual claims may be properly assessed.
Commonwealth v. Busanet, 54 A.3d 35, 75 (Pa. 2012) (citations and
quotation marks omitted). Because we do not base our decision on the
prejudice prong of the ineffective assistance of counsel test, Appellant’s
accumulation claim fails. See Busanet, 54 A.3d at 75; see also
Commonwealth v. Rollins, 738 A.2d 435, 452 (Pa. 1999) (finding that
because none of Appellant’s claims entitled him to relief, his accumulation
claim likewise failed because “no quantity of meritless issues can aggregate
to form a denial of due process”) (citation omitted).
Accordingly, we discern no error in the PCRA court’s decision to
dismiss Appellant’s petition following an evidentiary hearing. Appellant’s
claims are without merit, and he is entitled to no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2016
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Com. v. Hines, B.
Combined Opinion