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[U] Commonwealth v. Herbert

Superior Court of Pennsylvania

September 4, 2013



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.




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 filed February 10, 2011) (unpublished memorandum), at 1-2.[1]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?
[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 ...

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