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[U] Commonwealth v. Patton

Superior Court of Pennsylvania

June 24, 2013

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE SINDALL PATTON, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE SINDALL PATTON, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE SINDALL PATTON, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE SINDALL PATTON, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE SINDALL PATTON, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE SINDALL PATTON, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered March 27, 2012, in the Court of Common Pleas of Centre County Criminal Division at Nos. CP-14-CR-0001594-2007, CP-14-CR-0001608-2007, CP-14-CR-0001598-2007, CP-14-CR-0001600-2007, CP-14-CR-0001601-2007, CP-14-CR-0001604-2007

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Appellant comes before us challenging the denial of his petition brought pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Finding no error, we affirm.

Following a jury trial, appellant was found guilty of seven counts of robbery, eight counts of theft by unlawful taking, eight counts of receiving stolen property, two counts of simple assault, and two counts of criminal attempt (robbery). During appellant's direct appeal, this court summarized the facts underlying his conviction:

Patton was charged with the above crimes as well as other charges in connection with robberies and attempted robberies occurring between July 22, 2007 and August 8, 2007, in Centre County, Blair County, Clinton County and Huntingdon County. Each robbery involved a man, wearing black or blue clothing and a ski mask or bandanas, holding what appeared to be a black handgun, and demanding money. In some of the robbery incidents, the man was observed to be accompanied by a woman driving a vehicle with a cream-colored convertible top. After a robbery that occurred on August 8, 2007, at Snappy's Convenience Store on North Atherton Street, State College, the police gave chase and stopped a Sebring convertible. The passenger in the car fled, and the police arrested the driver, Caroll Patton ["Caroll"], who is Patton's sister. Upon searching the vehicle, the police found an inoperable handgun, clothing items, marijuana, and other evidence. [Caroll] implicated her brother in the robberies, and he was subsequently arrested.
Prior to trial, Patton filed an omnibus pretrial Motion requesting that the case be dismissed for lack of jurisdiction and improper venue. The trial court denied the Motion. The Commonwealth filed a Motion to consolidate charges, which the trial court granted. After a jury trial, Patton was convicted of the above-captioned offenses.[Footnote 2] He was sentenced to consecutive sentences on the seven robbery counts. On the two counts of criminal attempt (robbery), the trial court ordered Patton to serve sentences concurrent with the robbery sentences. Patton's aggregate sentence was 22 years, nine months to 45 years, six months.
[Footnote 2] Patton was found not guilty of two of the robbery charges.

Commonwealth v. Patton, No. 744 MDA 2008, unpublished memorandum at 1-2 (Pa.Super. filed August 27, 2009). A panel of this court affirmed appellant's judgment of sentence. Id. On March 23, 2010, the Pennsylvania Supreme Court denied appellant's petition for allowance of appeal.

On March 22, 2011, appellant filed a pro se petition for PCRA relief. Hollyce Winters, Esq., was appointed to represent appellant. An amended petition was filed on August 22, 2011. Following a hearing, the Honorable Bradley P. Lunsford, who also presided over the trial, denied the petition. Appellant filed a notice of appeal on April 26, 2012. On May 4, 2012, appellant was directed to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.

Appellant filed a concise statement on August 2, 2012, and the PCRA court has filed an opinion.[1]

Herein, two issues have been presented for our review:

A. Did the lower court err in determining that no prejudice resulted from [Caroll's] statements made to her attorney prior to testifying as said determination is not supported by the record?
B. Did the lower court err in denying [appellant's] PCRA Petition without hearing testimony from trial counsel, as requested by [appellant] at the PCRA hearing?

Appellant's brief at 6.

Initially, we note our standard of review:

Our standard of review of a PCRA court's dismissal of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the evidence of record and free of legal error. Commonwealth v. Ceo, 812 A.2d 1263, 1265 (Pa.Super.2002) (citation omitted). Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001) (citation omitted).

Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.Super. 2003) (en banc), appeal denied, 576 Pa. 712, 839 A.2d 352 (2003).

"To prevail on a claim alleging counsel's ineffectiveness, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness." Commonwealth v. Wallace, 555 Pa. 397, 407, 724 A.2d 916, 921 (1999), citing Commonwealth v. Howard, 538 Pa. 86, 93, 645 A.2d 1300, 1304 (1994) (other citation omitted). In order to meet the prejudice prong of the ineffectiveness standard, a 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.'" Commonwealth v. Kimball, 555 Pa. 299, 308, 724 A.2d 326, 331 (1999), quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A "'[r]easonable probability' is defined as 'a probability sufficient to undermine confidence in the outcome.'" Id. at 309, 724 A.2d at 331, quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal denied, 574 Pa. 765, 832 A.2d 435 (2003) (emphasis added). "We presume counsel is effective and place upon Appellant the burden of proving otherwise. Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004) (citations omitted).

Appellant argues that his trial attorney, Deborah Lux, Esq. ("Attorney Lux"), should have objected to a conversation that Caroll had with her attorney, Karen G. Muir, Esq. (hereinafter "Attorney Muir"), in front of the jury moments before his sister testified. (Appellant's brief at 13.) Caroll was called to testify as a witness for the Commonwealth. Appellant claims that the conversation was prejudicial to him as it evoked emotion of the jury foreperson. Appellant avers that Caroll had credibility issues and her tearful conversation resulted in the jury having sympathy for her which prejudiced appellant.

At the PCRA hearing appellant, Attorney Muir, and Caroll testified; the Honorable Bradley P. Lunsford, who was also the judge during appellant's trial, presided. Appellant testified that he recalled that as Caroll walked into the courtroom, a sidebar was called by the assistant district attorney. (Notes of testimony 3/26/12 at 7-8.) Caroll and Attorney Muir sat down in the spectator benches next to the jury box during the sidebar. (Id.)

According to appellant, Attorney Muir asked Caroll questions that evoked emotional responses from her, such as "you don't want to do this to your brother, do you?" (Id. at 8.) Caroll responded, "no, I don't" and started crying. Then Attorney Muir asked Caroll if she loved her bother; Caroll responded that she did but wished her brother would tell the truth. (Id.) Appellant testified that this conversation lasted two to five minutes. (Id. at 9.) Appellant also testified that the jury was focused on her during this conversation, and the foreperson was emotionally affected. (Id. at 9-10.) Appellant alleged that he voiced his concerns about these events to his attorney but nothing was done. (Id. at 10.)

Attorney Muir testified that she had no recollection of such a conversation; rather, she remembered being part of a sidebar with the other attorneys which occurred prior to Caroll's trial testimony. (Id. at 16-17, 20.) Attorney Muir testified that over her 20 years of experience in court, she has never taken a cooperating witness and had a conversation within earshot of a jury. She averred if that were to have occurred, she would have remembered it as it would have been out of character. (Id. at 18-19, 21.) Attorney Muir stated that she had no "memory whatsoever" of asking Caroll the sort of questions appellant described. (Id. at 17-18.) Attorney Muir did recall that Caroll had been an emotional witness. (Id. at 18.)

Caroll also testified at the PCRA hearing; she recalled being very emotional and crying as she did not want to testify against her brother. Caroll recalled a discussion with her attorney, but she testified that it occurred because she informed Attorney Muir of her nerves. "I don't think that [Attorney] Muir sat me down to interrogate me in front of the jury. I think it was because of my fear of not wanting to come up here and me questioning her." (Id. at 25.) Caroll did not recall if she was standing or sitting near the jury box. (Id. at 24-26.) She stated that her attorney instructed her to go up on the stand and answer the questions even though it would be difficult. (Id. at 24, 28.)

The PCRA court noted the conflicting accounts about the alleged conversation. However, it found that even if the jury overheard the alleged conversation, no prejudice could have resulted. Caroll's tearful demeanor and reluctance to testify were readily apparent at trial to the jury. (PCRA court opinion, 11/7/12 at 6.) Additionally, Caroll verbally confirmed her hesitancy and emotion on the witness stand. When asked why she had not been completely honest when testifying at the preliminary hearing she responded "Because I love my brother and want to protect him." (Notes of testimony, 2/26/08 at 482.) On direct examination she was asked "You're not happy testifying against your brother, are you?" and she responded "No." But she agreed upon further questioning that her testimony was "the right thing to do" and admitted that she faced criminal charges. (Id. at 504-505.) Thus, any alleged conversation about Caroll's hesitancy to testify and her attorney's assurance to her would not have affected the outcome of the trial as such was obvious to all in the courtroom during her testimony. Additionally, as the Commonwealth notes, the trial court instructed the jury not to consider evidence from any source other than the witness stand. (Notes of testimony, 2/28/08 at 18-21.) "The jury is presumed to have followed the court's instructions." Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 632 (2010). Accordingly, we conclude that the PCRA court did not err in denying appellant's petition.

Appellant next argues that the PCRA court erred in denying his petition without hearing testimony from trial counsel, Attorney Lux, about the Carroll incident. At the PCRA hearing, appellant requested that Attorney Lux testify although his PCRA counsel did not seek her attendance at the hearing or ask her to appear. (Notes of testimony, 3/26/12 at 29.) However, as the PCRA court found that there was no merit to appellant's claim and that appellant had not established prejudice, it was unnecessary for the PCRA court to engage in an analysis as to whether trial counsel had a reasonable strategy or basis for not objecting. "Absent a demonstration of prejudice, [a PCRA petitioner] cannot prevail on a claim for ineffective assistance of counsel and no further inquiry into the claim is warranted." Commonwealth v. Pierce, 567 Pa. 186, ____, 786 A.2d 203, 221 (2001), citing Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261 (2000), cert. denied, 531 U.S. 1035 (2000).

Order affirmed.


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