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[U] Commonwealth v. Herbert

Superior Court of Pennsylvania

September 4, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SHANE M. HERBERT, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered November 16, 2012, In the Court of Common Pleas of Luzerne County, Criminal Division, at No. CP-40-CR-0000337-2009.

BEFORE: BENDER, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Shane M. Herbert, appeals from the order denying his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On direct appeal, a panel of this Court summarized the factual history of this case as follows:

On August 30, 2008, at approximately 10:30 a.m., [Appellant] was traveling northbound on Route 115 when he struck the victim's vehicle head-on, resulting in the victim's death. Appellant was driving a blue Dodge pick-up truck and the victim, Michael J. Coffee ("Coffee"), was driving a black 1958 Cadillac Eldorado convertible. Route 115 is a two-lane road with one lane for each direction of travel. Appellant was traveling northbound in the southbound lane, in a no-passing zone, when he struck Coffee's vehicle. Appellant admitted to an investigating police officer that he had been drinking and subsequent testing revealed a blood alcohol concentration ("BAC") of .139, well in excess of the legal limit. As [Appellant] was 19 years of age at the time of the accident, the relevant legal limit was .02 BAC.

Commonwealth v. Herbert, 155 MDA 2010, 24 A.3d 451 (Pa. Super. filed February 10, 2011) (unpublished memorandum), at 1-2.[1]

Following a jury trial on November 9, 2009, Appellant was convicted of driving under the influence ("DUI") - incapable of safe driving, DUI - minors, homicide by motor vehicle while DUI, and related summary offenses. The court declared a mistrial as to a charge of DUI-high rate of alcohol, because the jury could not come to a unanimous verdict as to that count. On

January 8, 2010, the trial court sentenced Appellant to serve a term of incarceration of four to eight years for the homicide by motor vehicle while DUI conviction. The trial court determined that the remaining convictions merged for the purposes of sentencing. On February 10, 2011, this Court affirmed Appellant's judgment of sentence and, on September 12, 2011, the Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Herbert, 24 A.3d 451 (Pa. Super. 2011), appeal denied, 29 A.3d 371 (Pa. 2011).

Appellant filed, pro se, a timely PCRA petition. Counsel was appointed by the PCRA court and filed a brief and supplemental PCRA petitions. A PCRA hearing was held on September 10, 2012. On November 16, 2012, the PCRA court denied Appellant's PCRA petition. This timely appeal followed.[2]

Appellant presents the following issues for our review:

1. Did the Trial Court err in failing to award a new trial where Trial Counsel rendered ineffective assistance of counsel for failing to object and request supplemental instruction as to the culpability requirement of criminal negligence as required by homicide by motor vehicle while driving under the influence?
2. Did the Trial Court err in failing to award a new trial where Trial Counsel rendered ineffective assistance of counsel for failing to call as witnesses on behalf of the defense, in particular Duane Herbert?
3. Did the Trial Court err in failing to award a new trial where Trial Counsel rendered ineffective assistance of counsel in failing to object, during testimony and closing argument, to the used [sic] by the Commonwealth of the Defendant's post arrest silence in violation of his state constitutional right to remain silent?

Appellant's Brief at 3.

Our standard of review for an order denying PCRA relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011), appeal denied, 42 A.3d 1059 (Pa. 2012) (citing Commonwealth v. Berry, 877 A.2d 479 (Pa. Super. 2005)). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id. (citing Commonwealth v. Carr, 768 A.2d 1164 (Pa. Super. 2001)).

Initially, we observe that each of Appellant's claims challenges the effective assistance of his trial counsel. In order to succeed on a claim of ineffective assistance of counsel, an appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's performance lacked a reasonable basis; and (3) that the ineffectiveness of counsel caused the appellant prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

We have explained that trial counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc). Moreover, with regard to the second prong, we have reiterated that trial counsel's approach must be "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

Our Supreme Court has long defined "reasonableness" as follows:

Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com. ex rel. Washington v. Maroney, 235 A.2d 349 (Pa. 1967)) (emphasis in original).

In addition, we are mindful that prejudice requires proof that there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Pierce, 786 A.2d at 213. "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus, when it is clear that an appellant has failed to meet the prejudice prong of an ineffective assistance of counsel claim, the claim may be disposed of on that basis alone, without a determination of whether the first two prongs have been met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).

It is presumed that the petitioner's counsel was not ineffective, unless the petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). We are bound by the PCRA court's credibility determinations where there is support for them in the record. Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

Furthermore, claims of ineffective assistance of counsel are not self-proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). "[A]n underdeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy Appellant's burden of establishing that he is entitled to relief." Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001).

Appellant first argues that trial counsel was ineffective for failing to object to the trial court's jury instruction with regard to the crime of homicide by motor vehicle while DUI. Specifically, Appellant contends that the particular crime possesses a culpability element, which the trial court failed to include in its charge to the jury. Appellant asserts that trial counsel should have objected to the improper instruction.

Initially, we must address whether the issue now raised with this Court, a claim that trial counsel was ineffective for failing to object to the trial court's jury instruction with regard to the crime of homicide by motor vehicle while DUI, has been preserved. We observe that Appellant has failed to present this issue previously to the PCRA court in either his pro se or counseled PCRA petitions. It is undisputed that, pursuant to Pennsylvania Rule of Appellate Procedure 302, "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Thus, only claims properly presented in the PCRA court are preserved for appeal.

Our review of the record reflects that the instant claim was not presented in Appellant's pro se PCRA petition. However, in Appellant's counseled supplemental PCRA petition, the following issue was raised:

Counsel files this Supplement to PCRA on behalf of [Appellant], raising these additional issues:
2. Failing to request a proper jury instruction as it relates to DUI general impairment.

PCRA Supplement, 9/7/12, at 1 (certified record entry 30) (emphasis added). Thus, it is evident that neither Appellant nor PCRA counsel presented a specific challenge to trial counsel's alleged ineffective assistance for failing to object to the trial court's jury instruction with regard to the crime of homicide by motor vehicle while DUI.

Interestingly, during the PCRA hearing, the following transpired as PCRA counsel was introducing the issues to be presented to the PCRA court:

[PCRA COUNSEL]: And secondarily, there's a jury instruction issue that I'll let [Appellant] get into that deals with general impairment, the jury instruction you gave on general impairment and what he believes is the issue with that.

N.T., 9/10/12, at 5 (emphasis added).

Subsequently, Appellant testified at the PCRA hearing. During his testimony, Appellant discussed the jury instruction given by the trial court with regard to general impairment. Id. at 17-18. Thereafter, the following transpired:

[PCRA COUNSEL]: Okay. I want to move on to the witness issue --
[APPELLANT]: There's another jury instruction issue.
[PCRA COUNSEL]: The second jury instruction issue?
[APPELLANT]: Yeah.
[PCRA COUNSEL]: Then go ahead.
[APPELLANT]: It's not in there?
[PCRA COUNSEL]: What's that? Explain to me what jury instruction you're talking about.
[APPELLANT]: Okay. The other jury instruction was as to the general culpability requirement of homicide by vehicle, which is criminal negligence I believe. There was no jury instruction whatever in regard to culpability and from my understanding – and I have it – can [I] have my notepad please? Would that be okay?

Id. at 19 (emphasis added).

Immediately afterwards, a sidebar occurred at the PCRA hearing during which Appellant consulted his note pad and began to discuss the Pennsylvania Supreme Court case of Commonwealth v. Samuels, 778 A.2d 638 (Pa. 2001). N.T., 9/10/12, at 19-20. The Commonwealth objected to Appellant's testimony because he was presenting a legal argument. Id. at 20. The PCRA Court then stated the following:

THE COURT: I'm just taking it as his objection that there was no indication in my instructions with regard to culpability. Do you have a cite on Commonwealth versus Samuels?
[APPELLANT]: Yes, 778 A.2d 638.
THE COURT: Let's move on. Id. at 20-21.

The record further reflects that there was no additional argument or discussion at the PCRA hearing regarding trial counsel's alleged ineffectiveness pertaining to the jury instruction for homicide by vehicle while DUI. In fact, the only other time jury instructions were mentioned during the PCRA hearing was when the Commonwealth called trial counsel as a witness and the following transpired:

[ASSISTANT DISTRICT ATTORNEY]: And regarding [Appellant's] concerns about the jury instructions regarding the general impairment, did you feel that there was any issue with the jury instructions as [the trial court] read them to the jury?
[TRIAL COUNSEL]: No. No, otherwise I would have filed an instruction. I felt it was a proper instruction.

N.T., 9/10/12, at 78 (emphasis added).

Even if we assume, for the sake of argument, that the issue of ineffectiveness regarding the trial court's jury instruction pertaining to the crime of homicide by motor vehicle while DUI was properly raised to the PCRA court, and that there is arguable merit to the underlying claim, we are constrained to conclude that Appellant has not developed all three prongs necessary to establish an ineffectiveness claim. Indeed, Appellant failed to develop this claim of ineffective assistance beyond the bald allegations challenging the jury instructions. Aside from the allegations that there is merit to the underlying claim, Appellant presented no argument concerning whether trial counsel had a reasonable basis for the inaction, or whether Appellant suffered prejudice as a result of the inaction. Again, claims of ineffective assistance of counsel are not self-proving. Wharton, 811 A.2d at 986. Accordingly, we must conclude that Appellant has failed to establish his claim that trial counsel was ineffective in this regard. Hence, we discern no error on the part of the PCRA court in disposing of this claim of ineffective assistance.

Appellant next argues that trial counsel was ineffective for failing to call a particular witness for Appellant's defense. Specifically, Appellant claims that he was not illegally intoxicated or incapable of safe driving at the time of the accident and that his father, Duane Herbert, would have testified at trial that Appellant began drinking after the accident. Appellant believes that, because he allegedly began drinking after the accident, his blood alcohol content was elevated for testing. Appellant notes that he, personally, was the only witness who testified that he was drinking alcohol after the accident, and that his father was present and would likewise have testified. Appellant contends that trial counsel was aware of the witness and the substance of his testimony, yet failed to call the witness at the time of trial to corroborate Appellant's story.

To prevail on a claim of trial counsel's ineffectiveness for failure to call a witness, an appellant must prove: "(1) the witness existed; (2) the witness was available; (3) trial counsel was informed of the existence of the witness or should have known of the witness's existence; (4) the witness was prepared to cooperate and would have testified on appellant's behalf; and (5) the absence of the testimony prejudiced appellant." Commonwealth v. Chmiel, 889 A.2d 501, 545-546 (Pa. 2005) (citations omitted). Trial counsel's failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness' testimony would have been beneficial or helpful in establishing the asserted defense. Id. Appellant must demonstrate how the testimony of the uncalled witness would have been beneficial under the circumstances of the case. Id. In addition, counsel is not ineffective for failing to call a witness whose testimony would have been merely cumulative. Commonwealth v. Meadows, 787 A.2d 312, 320 (Pa. 2001).

Here, the PCRA court addressed this claim of ineffective assistance of trial counsel with the following discussion:

[Appellant's] second issue, the failure to call certain witnesses, is equally without merit.
[Appellant's] counsel testified that the witnesses who could have been called were all related to [Appellant] and would have presented testimony that was cumulative in nature.
Again, [Appellant's] counsel's failure to call the witnesses at issue does not meet the three prong test set forth in Strickland [v. Washington, 466 U.S. 668 (1984)], and Pierce, supra.

PCRA Court Opinion, 11/16/12, at 5.

Our review of the record reflects that, at the PCRA hearing, trial counsel offered the following testimony when called and questioned by the Commonwealth regarding failure to call witnesses:

[ASSISTANT DISTRICT ATTORNEY]: With respect to [Appellant's] claim that you were ineffective due to failure to call witnesses at trial, did you have an opportunity to speak --
[TRIAL COUNSEL]: I spoke with [Appellant's] mom and dad a number of times and they told me exactly what they said on the witness chair. The issue was when he was drinking and there isn't any -- there wasn't any doubt that he was drinking after the incident. We had one, two, three, to the best of my recollection at least four independent witnesses, people that weren't related to [Appellant] who said they saw him drinking. And one person, I believe, said when he got out of the car after the accident [Appellant] had a can of beer in his hand. There wasn't any doubt he was drinking after. I felt that Mr. and Mrs. Herbert would have been cumulative. They really didn't have anything new to offer, and I felt an independent witness was more credible.

N.T., 9/10/12, at 77-78.

After review of this issue, we agree with the PCRA court that Appellant has failed to establish that trial counsel was ineffective in handling the defense in this regard. As set forth above, our review of the record reflects that trial counsel testified at the PCRA hearing that he was aware of both of Appellant's parents and had interviewed both. It is undisputed that Appellant testified at trial that he approached the victim's car with beer in his hand and that he drank six cans of beer in the period after the accident. N.T., 11/9/09, at 149-151. In addition, our thorough review of the record reflects several witnesses, in addition to Appellant, testified at trial that they saw Appellant at the scene of the accident with beer in his hand. Id. at 25-55, 55-70. In particular, witness Ryan Kuchinskas testified that he saw Appellant sipping beer after the accident. Id. at 36. Also, witness Carol Pietrucha testified that she saw Appellant get out of his vehicle after the accident with beer in his hand. Id. at 61-62. She also stated that she saw Appellant return to his vehicle two or three times to get another beer. Id. at 62-63. Moreover, trial counsel explained at the PCRA hearing that he refrained from calling Appellant's parents as witnesses because there was no doubt that Appellant had been drinking after the accident, and their testimony would have simply been cumulative of that fact. N.T., 9/10/12, at 77-78. This conclusion is supported by the PCRA court's determination. Accordingly, we conclude that, in his present issue, Appellant has failed to establish that trial counsel's decision, to not call Appellant's father as a witness, amounted to ineffective assistance of counsel. Thus, this claim lacks merit.

Appellant last argues that trial counsel was ineffective for failing to object to references by the Commonwealth to Appellant's silence. Essentially, Appellant claims that, contrary to the Pennsylvania Constitution, the Commonwealth disclosed and commented on Appellant's silence during the course of examination and closing argument. Appellant asserts that trial counsel lacked any reasonable strategy in failing to object to the references, thus allowing Appellant's constitutional right to silence to be used against him.

In support of his claim, Appellant cites Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982), in which our Supreme Court found that reference by a prosecutor, in his cross-examination of a defendant, to the defendant's silence before trial constituted reversible error warranting the grant of a new trial. Appellant, however, mischaracterizes the holding in Turner to mean that any reference by a prosecutor to a defendant's silence is impermissible. Turner explicitly allows for impeachment "of a defendant's relation of events by reference . . . to inconsistencies as they factually exist." Id. at 539. Additionally, "[s]ilence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to police at the time of arrest when in fact he remained silent." Id. at 539-540 (citing Doyle v. Ohio, 426 U.S. 610, 619 (1976)).

Further, the Pennsylvania Supreme Court has held that a prosecutor has a right to respond when the defense challenges the thoroughness of the police investigation. Commonwealth v. DiNicola, 866 A.2d 329, 337 (Pa. 2005). Our Supreme Court has also stated that "where a prosecutor's reference to a defendant's silence is a fair response to a claim made by defendant or his counsel at trial, there is no violation of the Fifth Amendment privilege against self-incrimination." Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa. 1998).

In addition, this Court has stated the following:

Pennsylvania courts are wary of any prosecutorial inquiry into post-arrest silence. The Pennsylvania Supreme Court's intention to insure that the accused's post-arrest silence is not used to his detriment in legal proceedings has been firmly established. Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982). Such inquiry implicates a defendant's Fifth Amendment right to silence as applied to this Commonwealth through the Fourteenth Amendment. The U.S. Supreme Court has held that the Fifth Amendment "forbids either comment by the prosecution on the accused's silence [at trial] or instructions by the court that such silence is evidence of guilt." Griffin v. California, [380 U.S. 609, 615 (1965)].

Commonwealth v. Drass, 718 A.2d 816, 819 (Pa. Super. 1998) (emphasis added).

As further explained by our Supreme Court in Commonwealth v. Mitchell, 839 A.2d 202 (Pa. 2003):

The accused in a criminal proceeding has a legitimate expectation that no penalty will attach to the lawful exercise of his constitutional right to remain silent. Commonwealth v. Turner, 454 A.2d at 540. Consequently, this court held in Turner that a defendant cannot be impeached by use of the inconsistency between his silence at the time of his arrest and his testimony at trial. Id. The defendant in Turner was convicted of voluntary manslaughter following a shooting in a bar. At trial, the defendant, for the first time, stated that the shooting had been in self-defense. During cross-examination, the prosecutor inquired as to why the defendant had never told the police that someone had been shooting at him on the night of the murder. Id. at 538. Defense counsel objected and moved for a mistrial. The mistrial was denied and a cautionary instruction given. On appeal this court reversed, holding that in cases in which the defendant offers his version of the events for the first time at trial, the prosecution is not permitted to impeach the defendant's testimony by reference to the defendant's previous silence. Id. Recognizing the strong disposition on the part of lay jurors to associate the exercise of the right to remain silent with an admission of guilt, and the substantial prejudice that would adhere to a defendant before the jury by exposure of his silence, this court found that, while some references to post-arrest silence may be harmless error, in this case it was not harmless. Id.
Following Turner, this court has been consistent in prohibiting the post-arrest silence of the accused to be used to his detriment. See Commonwealth v. Costa, 560 Pa. 95, 742 A.2d 1076 (1999) (direct question to the arresting officer as to where the accused made any statement when arrested on child molestation charges was an impermissible reference to post-arrest silence); Commonwealth v. DiPietro, 538 Pa. 382, 648 A.2d 777 (1994) (even where the accused responds to some questions at the time of his arrest, it is impermissible to reveal to the jury those questions to which the defendant chose to remain silent)[;] Commonwealth v. Clark, 533 Pa. 579, 626 A.2d 154, 156 (1993) (the prosecutor's open-ended question to the defendant, "Did you ever think of telling the police what happened", could not reasonably be interpreted as limited to the defendant's actions prearrest, thus, it violated the rule of Turner). However, not all references to post-arrest silence were found to be detrimental to the accused so as to fall within the ambit of the rule of Turner. See Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994) (reference to fact that accused chose to remain silent at the extradition interview did not implicate the Turner prohibition on references to post-arrest silence); Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811 (1994) (questions as to why it did not occur to the defendant that he should have revealed his alibi prior to trial were questions aimed at his cognitive functioning, not his silence); Commonwealth v. Nolen, 535 Pa. 77, 634 A.2d 192 (1993) (cross-examination designed to show that the defendant had the opportunity to hear all the witnesses testify at an earlier proceeding, and thus he could shape his current testimony accordingly, was not violative of Turner).
To run afoul of the rule in Turner, it must be clear that the testimonial reference is to post-arrest silence. This clarification of the Turner holding was underscored by the decision in [Commonwealth v. Bolus, 680 A.2d 839 (Pa. 1996)]. In Bolus, the defendant was interviewed prior to his arrest and made several statements to law enforcement inconsistent with his trial testimony. In cross-examination, the prosecution impeached the defendant by inquiring why he had not offered the information revealed at trial to the police during their investigation. On appeal the defendant claimed this line of cross-examination violated the rule of Turner. This court rejected that argument, distinguishing Turner as only relevant to the defendant's post-arrest silence, and holding that when a defendant chooses to testify he waives his Fifth Amendment protection and is subject to impeachment through reference to pre-arrest silence. Bolus, 680 A.2d at 843-844 (relying upon Jenkins v. Anderson, [447 U.S. 231 (1980)] (the use of an accused's pre-arrest silence to impeach his credibility on cross-examination did not violate either the Fifth or Fourteenth Amendments)).

Mitchell, 839 A.2d at 212-214 (emphasis added).

More recently, in Commonwealth v. Kuder, 62 A.3d 1038 (Pa. Super. 2013), this Court synthesized the law with regard to use of an appellant's silence. We reiterated the following:

[N]ot all references to post-arrest silence require[s] automatic relief under Turner. To be entitled to relief under Turner, first, "it must be clear that the testimonial reference is to post-arrest silence." Otherwise, the alleged improper comments would be controlled by Bolus. Second, if a Turner type error is found, the error must not be harmless. If either of these two elements is not satisfied, Turner will not provide relief.

Kuder, 62 A.3d at 1052 (citations omitted, emphasis added).

Thus, we explained that, "even an explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt." Kuder, 62 A.3d at 1052 (citation omitted). "[E]very violation of Turner must, . . . still withstand a harmless error challenge." Id. We utilize the following standard for determining harmless error in this context:

An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict. If there is a reasonable probability that the error may have contributed to the verdict, it is not harmless. In reaching that conclusion, the reviewing court will find an error harmless where the uncontradicted evidence of guilt is so overwhelming, so that by comparison the error is insignificant.

Id. (quoting Mitchell).

With the above law in mind, we now review the record before us. As a prefatory matter, we observe our review of the record reflects the tragic accident in question occurred in the late morning of August 30, 2008, and the parties conceded that Appellant was not under arrest until a point later, at the hospital, when he was given his implied consent warnings. N.T., 9/10/12, at 9. Cognizant of that time frame, we now set forth points of testimony and comments as they occurred at Appellant's trial.

Our review of the record reflects that Trooper Mark E. Mackachinas, an officer with ten years of experience, testified at trial and indicated that he received a radio call to go to the accident scene at 10:36 a.m. on August 30, 2008, and arrived at the scene at 10:51 a.m. N.T., 11/9/09, at 104-107. Trooper Mackachinas then offered the following testimony regarding his interaction with Appellant at the scene of the accident:

[ASSISTANT DISTRICT ATTORNEY]: Did [Appellant] have any beer in his hand when you talked to him?
[STATE TROOPER]: No.
[ASSISTANT DISTRICT ATTORNEY]: And can you tell the jury what you encountered when you spoke to him?
[STATE TROOPER]: Upon speaking to him I initially took a statement for the motor vehicle crash.
[ASSISTANT DISTRICT ATTORNEY]: And what did he tell you?
[STATE TROOPER]: That his brakes failed. My report actually reflects his word by word answer of what had happened. His brakes had failed while he was traveling in a northbound direction, and he attempted to get back into the right-hand lane at which point he couldn't.
While I'm taking that statement from [Appellant] I went through and I smelled a very, very strong odor of alcohol. I observed that his eyes were bloodshot.
[ASSISTANT DISTRICT ATTORNEY]: And what did that mean to you?
[STATE TROOPER]: Presence of alcohol; that he had been drinking.
[ASSISTANT DISTRICT ATTORNEY]: And once you made that determination, did you question him about that?
[STATE TROOPER]: Yes. I asked [Appellant] if he had been drinking.
[ASSISTANT DISTRICT ATTORNEY]: And what did he tell you?
[STATE TROOPER]: Yes.
[ASSISTANT DISTRICT ATTORNEY]: He just said yes?
[STATE TROOPER]: Yes.
[ASSISTANT DISTRICT ATTORNEY]: Did he tell you he was drinking after the accident?
[STATE TROOPER]: No.
[ASSISTANT DISTRICT ATTORNEY]: Did he tell you he was drinking before the accident?
[STATE TROOPER]: No.
[ASSISTANT DISTRICT ATTORNEY]: He just said he was drinking?
[STATE TROOPER]: Yes.
[ASSISTANT DISTRICT ATTORNEY]: Did you make any other observations of him at that time?
[STATE TROOPER]: He had a bleeding wound to his forehead. His hands and forearm area of his arms were blood-covered. I advised him to definitely seek some type of medical attention for that wound due to the amount of blood that he had on his hands and arms.
[ASSISTANT DISTRICT ATTORNEY]: And did you walk him over to an ambulance?
[STATE TROOPER]: He walked from me towards the ambulance. N.T., 11/9/09, at 110-112. The record further reflects that Trooper Mackachinas gave detailed testimony that Appellant and others involved in the accident were transported to the hospital and that the trooper then conducted an investigation of the accident scene. Id. at 112-113. Thereafter, the trooper left the scene, went to the hospital, attempted to speak with the victims, and then requested Appellant to submit to blood testing. Id. at 121-123. Thus, it is undisputed that the above interaction, as explained by Trooper Mackachinas, was entirely before the arrest of Appellant. Thus, no relief is due.

Subsequently, during cross-examination of Trooper Mackachinas by defense counsel, the following occurred:

[DEFENSE COUNSEL]: And you never asked [Appellant] whether or not he was drinking after the accident, did you?
[STATE TROOPER]: No.

N.T., 11/9/09, at 136 (emphasis added). It is unclear from this line of questioning from defense counsel whether he was inquiring if Appellant did not mention his after-accident-drinking the day of the accident, or at any time, including after his arrest.

On redirect examination of the trooper, the following transpired:

[ASSISTANT DISTRICT ATTORNEY]: Did you have any indication from anyone, including [Appellant], who admitted to you that he was drinking, that he just started drinking?
[STATE TROOPER]: No.
[ASSISTANT DISTRICT ATTORNEY]: [Appellant] never told you, did he, that he just started drinking five minutes ago?
[STATE TROOPER]: No.

N.T., 11/9/09, at 142 (emphasis added). Again, the above testimony, elicited by the Commonwealth, seems to be in reference to the interaction that happened between Appellant and Trooper Mackachinas at the accident scene, which occurred prior to the arrest of Appellant. Again, no relief is due.

And then again on recross-examination of Trooper Mackachinas:

[DEFENSE COUNSEL]: Trooper, you never asked him, did you?
[STATE TROOPER]: No.

N.T., 11/9/09, at 143.

Our review of the record further reflects that Appellant took the stand in his own defense at trial and offered the following testimony of the incident:

[DEFENSE COUNSEL]: And tell us about the accident. How did this accident take place?
[APPELLANT]: Well, as I went to pass a vehicle, the rest of the traffic slowed down. And when I went to pass it, the gap between the vehicle I was passing and the other vehicles disappeared. I couldn't get back into traffic. While I was trying to get back over, nobody was opening up. That's when I saw the other vehicle coming.
[DEFENSE COUNSEL]: Did you try to avoid the other vehicle?
[APPELLANT]: Yes, sir. I -- I applied the brakes and I tried to go to the left side. I -- really, I was just going to go off the road into the woods to avoid the other vehicle.
[DEFENSE COUNSEL]: You didn't avoid the other vehicle, you struck it.
[APPELLANT]: Yes, sir.
[DEFENSE COUNSEL]: Tell me what you -- by the way, as you -- when you got up, did you have any beer to drink when you got up that morning?
[APPELLANT]: No.
[DEFENSE COUNSEL]: Were you drinking as you were coming up the roadway going to work?
[APPELLANT]: No, sir.
[DEFENSE COUNSEL]: All right. After the accident what did you do?
[APPELLANT]: After the accident I got out of my truck. I ran to the other vehicle to check on -- to see if everybody was all right, and they weren't. So I then left that vehicle. I ran up the highway a few yards and told somebody to dial 9-1-1. And --
[DEFENSE COUNSEL]: Then what did you do?
[APPELLANT]: Then I went back to the vehicle -- to the other vehicle. I wanted -- I wanted to try to help them. I didn't see anything I could do because I -- I couldn't get out of it -- in the vehicle. I didn't want to move them in the vehicle or anything. So, at that point the -- that's when I decided there was -- there was really not anything I could personally do to help them. So, I went back down to my truck.
[DEFENSE COUNSEL]: Now, when you went back to your truck, what did you do there?
[APPELLANT]: That's when I -- I began to drink.
[DEFENSE COUNSEL]: Why were you doing that?
[APPELLANT]: I -- I was scared. I was very nervous. I -- I really didn't -- I didn't know what else to do. I was scared, and I don't know -- that's --
[DEFENSE COUNSEL]: And when you went back to the [victim's] car the second time did you have beer in your hand?
[APPELLANT]: Yes, I did.

N.T., 11/9/09, at 147-150.

In addition, defense counsel asked Appellant about the amount of beer Appellant consumed at the accident scene, and Appellant offered the following testimony:

[DEFENSE COUNSEL]: Now, when you went back to your [truck], how many beers did you consume over this period of time?
[APPELLANT]: Six.
[DEFENSE COUNSEL]: And, the cans, where did you put the cans?
[APPELLANT]: In the bed of the truck.

N.T., 11/9/09, at 150.

The record further reflects that the following transpired on direct, while Appellant was testifying:

[DEFENSE COUNSEL]: And when the trooper arrived, did you ultimately talk to him?
[APPELLANT]: Yes.
[DEFENSE COUNSEL]: And what did you tell him? Did you tell him what happened?
[APPELLANT]: Yes. He asked me how the accident happened. I told him about the accident and then -- yeah. Well, that was all. He asked me how the accident went.
[DEFENSE COUNSEL]: Did he ask you if you were drinking?
[APPELLANT]: No.
[DEFENSE COUNSEL]: Now, did you tell him you were drinking after the accident?
[APPELLANT]: No. He -- he didn't ask me.
[DEFENSE COUNSEL]: And you didn't volunteer it?
[APPELLANT]: No.

N.T., 11/9/09, at 152 (emphasis added).

The record also reflects the following occurred at trial during cross-examination of Appellant by the Commonwealth:

[ASSISTANT DISTRICT ATTORNEY]: Did you talk to this state police trooper after the accident, (indicating Mr. Mackachinas)?
[APPELLANT]: Yes, sir, I did.
[ASSISTANT DISTRICT ATTORNEY]: And you're telling this jury, this state police trooper never asked you if you were drinking?
[APPELLANT]: That's what I'm saying, sir.

N.T., 11/9/09, at 158.

In addition, the record reflects that, on cross-examination of Appellant the following transpired:

[ASSISTANT DISTRICT ATTORNEY]: Okay. Is it not important that if you say you were drinking after the accident, wouldn't you tell the trooper you were drinking after the accident?
[APPELLANT]: I was more concerned about the well being of the other people. I continually asked the trooper about how the occupants of the other vehicle were.
[ASSISTANT DISTRICT ATTORNEY]: So, you never told the trooper at all or anyone for that matter that you were drinking after the accident – –
[APPELLANT]: No, sir.
[ASSISTANT DISTRICT ATTORNEY]: – – until you sit in this box today in front of the jury?
[APPELLANT]: I was never asked, sir.
[ASSISTANT DISTRICT ATTORNEY]: You were never asked. And you were never explained why you were having your blood drawn?
[APPELLANT]: Like I said, I was asking about the occupants of the other vehicle. That was all I had to ask of Officer Mackichinas. I was not.

N.T., 11/9/09, at 159-160 (emphasis added).

From a thorough review of the record set forth above, we conclude that the only ostensible mention of Appellant's post-arrest silence by the Commonwealth during the taking of testimony was the statement by the prosecutor "until you sit in this box today in front of the jury." Although the Commonwealth's question to Appellant regarding Appellant's failure to offer his claim, that he began drinking after the accident, prior to trial seemingly is a reference to post-arrest silence, Appellant volunteered that he was never asked by Trooper Mackachinas whether he was drinking either before or after the accident. Considering the entirety of Commonwealth's cross-examination of Appellant, and in conjunction with the testimony elicited by defense counsel on direct examination of Appellant, we cannot conclude that Appellant's constitutional rights were violated because these references to silence did not occur in a context likely to suggest to the jury that Appellant's silence is the equivalent of a tacit admission of guilt. Kuder, 62 A.3d at 1052.

In addition, Appellant asserts that the following closing arguments by the Commonwealth necessitated an objection from his trial counsel:

Second big lie. The six beers he drank after the accident. Never tells a soul about that. Trooper asks him at 11:05 in his report, Were you drinking? What was his answer? His answer was, Yes. It wasn't Yes, but I drank after the accident. It was Yes. He wasn't smart enough to come up with the lie at the scene because science says he's a 139, not a 137. He's a 139 and he's 19 years old.
A call came to him at 10:36 a.m., by the way, a.m. He's a 139, 10:36 a.m. in the morning. And he's not smart enough to come up with the lie at the scene. It took him a year to dream it up to come and tell you that lie.

N.T. 11/9/09, 180.

As well as the following statement by the Commonwealth during closing argument:

He had every opportunity to tell this trooper, Oh, yes, I was drinking; I got so upset and nervous I got a drink after I killed someone.
Did he do it? Did he tell anybody that? He tried to sell it to you. Science doesn't lie, the defendant lies, (indicating the Defendant). N.T. 11/9/09, at 181-182.

Given the version of the events surrounding the accident as set forth by trial counsel in Appellant's direct testimony, we are constrained to conclude that, even if a Turner-type error occurred in the Commonwealth's reference to Appellant's delay in informing anyone that he began drinking only after the accident, trial counsel had a reasonable basis for failing to object to the references made by the Commonwealth. By denying that he made any pre-arrest admissions to drinking and testifying that he was never asked whether he drank anything, Appellant directly challenged the credibility of Trooper Mackachinas. Thus, in light of the test for the "reasonableness" prong of the ineffectiveness test outlined in Pierce, Appellant's ineffectiveness claim fails.

Even if we were to assume for the sake of argument that trial counsel had no valid strategic basis for asking the initial question that opened the door to the question posed by the Commonwealth, and failing to object to the Commonwealth's passing comments in closing argument, such error may still be declared harmless in the face of overwhelming evidence of guilt. As we previously stated:

An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict. If there is a reasonable probability that the error may have contributed to the verdict, it is not harmless. In reaching that conclusion, the reviewing court will find an error harmless where the uncontradicted evidence of guilt is so overwhelming, so that by comparison the error is insignificant.

Kuder, 62 A.3d at 1052 (quoting Mitchell).

The evidence presented in this matter was overwhelming. Even though Appellant testified to having had six beers in the time following the accident and the arrival of the state trooper, a period of less than 15 minutes, Trooper Mackachinas gave extensive testimony regarding the timing of his call to the accident scene, his quick arrival at the scene and the fact that he did not see Appellant drinking. The trooper also testified that Appellant admitted to the trooper to having been drinking, a claim which Appellant chose to dispute. Likewise, various witnesses to the accident testified and provided evidence regarding the aftermath of the accident. Although the witnesses viewed Appellant with beer immediately after the accident, none testified that Appellant was drinking to the extent to which Appellant testified. It is further uncontradicted that Appellant's BAC was seven-times the legal limit. In light of this evidence, the reference to Appellant's post-arrest silence, where the Commonwealth made no effort to exploit the reference, except as an effort to impeach Appellant's credibility, cannot be said to have contributed to the verdict. Hence, Appellant is not entitled to relief on this issue of trial counsel ineffective assistance for failing to lodge an objection. Accordingly, no relief is due.

Order affirmed.


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