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[U] Commonwealth v. Pander

Superior Court of Pennsylvania

November 25, 2013

COMMONWEALTH OF PENNSYLVANIA,
v.
ANTHONY D. PANDER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order December 17, 2012 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No: CP-51-CR-0009831-2008.

BEFORE: BENDER, J., BOWES, J., and STRASSBURGER, [*] JJ.

MEMORANDUM

STRASSBURGER, J.:

Anthony D. Pander (Appellant) appeals from the order entered December 17, 2012, dismissing his petition under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm in part, reverse in part, and remand for proceedings consistent with this memorandum.

The four individuals involved in this case are Appellant; his sister, Georgianna Pander (Georgianna); Brian Dingler (Dingler); and Andreas Gabrinidis (Victim). Georgianna and Dingler began dating in July 2007 while Georgianna was still married to Victim. Georgianna and Victim divorced, and in October and November 2007, Georgianna and Dingler married and began living together.

On December 31, 2007, Georgianna, Dingler, and Appellant were celebrating New Year's Eve. All three of them were drinking alcohol. Dingler testified at trial that at some point after midnight, Appellant was in a "rage" and "flipping out" saying "nobody messes with my sister." N.T., 12/1/2009, at 208-209. Appellant and Dingler got into Appellant's car and drove to Victim's house, approximately 14 miles away. Appellant then got out of the car, got something out of his trunk, and walked up to Victim's enclosed porch. Dingler testified that he heard "muffled arguing" and "wrestling around inside." Id. at 221. Dingler then saw Victim running away. Appellant went into Victim's house, then came out of the house and caught up with Victim several houses away. Dingler testified that he saw Appellant punching Victim while he was lying on the ground. Appellant went back to the car, got in the driver's seat, and drove away at a high rate of speed. The two went back to Dingler's house, and Appellant went into the bathroom. When Dingler awoke the next morning, Appellant was not there.

Several neighbors heard the disturbance. Ashley Street (Street) testified that at approximately 3:00 a.m. on January 1, she heard men "hollering" outside of her home. N.T., 12/2/2009, at 61. She saw the men, who seemed drunk to her, punching each other, so she called the police. She saw that one of the men was on the ground and the other was punching him. She testified that she heard sirens approaching, and saw "the young person" get into a car and drive away. Id. at 69.

Neighbor Kimberly Bumpess also testified. She heard screaming outside her window and saw Victim run out of his house to a neighbor's house screaming for help. She further testified she saw another man pull Victim down and punch Victim while on the ground. She called for her fourteen-year-old son, Shakur, to come to the door. Shakur testified that he was familiar with Victim because he played with Victim's sons. Shakur recognized Appellant as Victim's brother-in-law because he saw him "once a month." N.T., 12/1/2009, at 153. Shakur testified that when he went to the door at his mother's request, he saw Appellant fighting with Victim. Shakur then saw Appellant get into the driver's side of the car.

When police arrived, they found Victim dead on the street. The Medical Examiner determined that Victim had been stabbed to death. Police were unable to find a weapon at the crime scene or in Victim's house. Police contacted Victim's adult daughter, Maria Gabrinidis, to inform her about her father's death. Maria then contacted Georgianna, who was driven to the police station by Dingler, in order for her to make a statement. When Dingler got home from work that day, he learned police wanted to speak to him. He, too, gave a statement. Appellant was arrested on January 1, 2008, and charged with murder, burglary, criminal trespass, and possession of an instrument of crime (PIC).

A jury trial was held from December 1-4, 2009. Appellant presented one witness on his own behalf, Sergeant First Class Brian Byrd. Byrd testified that Appellant, also a member of the military, had a reputation for being a "good" person and "law abiding" person. N.T., 12/3/2009, at 29.

On December 7, 2009, the jury found Appellant guilty of first-degree murder and PIC. The trial court immediately sentenced Appellant to life in prison for the first-degree murder conviction and a concurrent term of 2 ½ to 5 years' incarceration for the PIC conviction. No post-sentence motions were filed, and Appellant pro se filed a timely notice of appeal to this Court. Counsel was appointed for Appellant, and the only issue raised by counsel on direct appeal was whether the trial court erred in refusing to instruct the jury on voluntary intoxication. On February 15, 2011, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Pander, 24 A.3d 454 (Pa.Super. 2011) (table). No petition for allowance of appeal to our Supreme Court was filed.

On May 18, 2011, Appellant filed a timely pro se PCRA petition. He filed an amended pro se PCRA petition on July 13, 2011. Counsel was appointed, and filed an amended PCRA petition on January 20, 2012. On August 7, 2012, the Commonwealth filed a motion to dismiss the PCRA petition, and Appellant responded on August 13, 2012. On November 19, 2012, the PCRA court issued a notice of its intent to dismiss the petition without a hearing. Appellant did not respond, and the PCRA petition was dismissed on December 17, 2012. Appellant filed a timely notice of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review, which we have reordered for ease of disposition:

[1.] Is [Appellant] entitled to post-conviction relief in the form of a new trial or a remand for an evidentiary hearing as a result of the ineffectiveness of appellate counsel for failing to raise on direct appeal the issue of the trial court's refusal to remove juror no. 7 and substitute an alternate juror?
[2.] Is [Appellant] entitled to post-conviction relief in the form of a new trial or a remand for an evidentiary hearing as a result of the ineffectiveness of appellate counsel for failing to raise in the direct appeal the issue of the trial court's denial of [Appellant's] motion for a mistrial following a question by the prosecutor suggesting to the jury that [Appellant] had a burden to produce evidence?
[3.] Is [Appellant] entitled to post-conviction relief in the form of a new trial or a remand for an evidentiary hearing as a result of the ineffectiveness of trial counsel for failing to request the trial court for a Kloiber[1] instruction as to the Commonwealth witness Shakur Bumpess?
[4.] Is [Appellant] entitled to post-conviction relief in the form of a new trial as a result of the ineffectiveness of trial counsel for failing to request the Commonwealth to test or make arrangements for testing of the blood found in [Appellant's] car?
[5.] Is [Appellant] entitled to post-conviction relief in the form of a new trial or a remand for an evidentiary hearing as a result of the ineffectiveness of trial counsel for failing to present evidence and argument to prove that someone other than [Appellant] committed the murder? Alternatively, was appellate counsel ineffective when he failed to raise in the direct appeal the issue that someone other than [Appellant] committed the crime?
[6.] Is [Appellant] entitled to post-conviction relief in the form of a new trial or a remand for an evidentiary hearing as a result of the ineffectiveness of trial counsel for failing to interview and present the testimony of Philip DeLuca, Eleftheria Gabrandias, Rosemarie Pander, and Charlene Pander as to the contentious relationship Brian Dingler had with the victim and that Georgianna Pander would instigate fights between the victim and Dingler?

Appellant's Brief at 4-5.

"On review of orders denying PCRA relief, our standard is to determine whether the PCRA court's ruling is free of legal error and supported by the record." Commonwealth v. Boyer, 962 A.2d 1213, 1215 (Pa.Super. 2008). We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super. 2010). This Court may affirm a PCRA court's decision on any grounds if the record supports it. Id. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010). We also observe that "[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary." Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008).

As all of Appellant's claims implicate the ineffective assistance of counsel, we set forth our well-settled considerations when reviewing such claims. "To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act." Commonwealth v. Rykard, 55 A.3d 1177, 1189-90 (Pa.Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013). Prejudice in the context of ineffective assistance of counsel means there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Commonwealth v. Kimball, 724 A.2d 326, 332 (Pa. 1999). Failure to establish any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 744 A.2d 717, 738 n. 23 (Pa. 2000).

Appellant's first two issues implicate the ineffective assistance of direct appeal counsel as both are issues that were raised by trial counsel during the course of trial, and therefore could have been raised on direct appeal, but were not. Appellant first contends that direct appeal counsel was ineffective for failing to raise the issue of trial court error in denying trial counsel's request to remove Juror No. 7 for cause. Appellant's Brief at 24-32.

On the second day of trial, during the testimony of the Medical Examiner, Juror No. 7 observed several pictures and "needed a break." N.T., 12/2/2009, at 197. The Court Crier indicated that Juror No. 7 was "really upset." Id. The Court Crier told the trial court that "[the other jurors] are concerned for her health … [s]he is about to pass out[.]" Id. at 198. The trial court then questioned Juror No. 7, who indicated that she saw Victim's face and it reminded her of her husband who had died within the last year. The trial court specifically asked if she could still be fair to both sides, and she stated that she could. The Commonwealth agreed not to show any more pictures to the jury. Specifically, the trial court asked her the following: "Having seen whatever it is that you saw, would that in any way affect your ability to maintain your impartiality and your fairness in this trial?" Id. at 200-01. She answered, "No." Id. at 201. Defense counsel then asked the trial court to seat an alternative juror, and the trial court denied the request.

"Rule [645](a) of the Pennsylvania Rules of Criminal Procedure provides that a trial court may seat an alternate juror whenever a principal juror becomes unable or disqualified to perform his or her duties. Such a decision will be reversed on appeal only upon a finding of an abuse of discretion." Commonwealth v. Abu-Jamal, 720 A.2d 79, 115 (Pa. 1998). "The trial court's discretion in this regard must be based upon a sufficient record of competent evidence to sustain removal." Bruckshaw v. Frankford Hosp. of City of Philadelphia, 58 A.3d 102, 110 (Pa. 2012).

Instantly, Appellant argues that because Juror No. 7 was upset enough that she had to leave the courtroom during the presentation of testimony, "[t]here was a basis for the trial court to presume a likelihood of Juror No. 7's inability to continue as a juror." Appellant's Brief at 29-30. Additionally, Appellant contends that he was prejudiced by Juror No. 7's "inability to guarantee that she would not become upset during the presentation of additional testimony or deliberations." Id. Therefore, he claims there was no reasonable basis for direct appeal counsel not to raise this on direct appeal.

The PCRA court concluded that substitution of an alternate juror would "deprive her of her duty and privilege to serve on this jury [which] would be unfair [where] she said she can [be fair and impartial]." PCRA Court Opinion, 2/26/2013, at 15 (quoting N.T., 12/2/2009, at 204-05). We agree.

Upon reviewing the record, we cannot say that the trial court abused its discretion when it declined to remove Juror No. 7 because she stated unequivocally that she could be fair and impartial. Thus, we cannot agree with Appellant that he was prejudiced by the trial court's denial of the motion to remove Juror No. 7. Therefore, direct appeal counsel was not ineffective for failing to pursue this issue on direct appeal.

Next, Appellant contends that the trial court erred when it denied trial counsel's motion for mistrial, and direct appeal counsel was ineffective for failing to raise the issue on direct appeal. Appellant's Brief at 32-40.

The request for mistrial arose during the testimony about blood stains that were purportedly found in Appellant's car by a defense investigator. The background on this issue is as follows. On January 3, 2008, homicide detectives obtained a search warrant for Appellant's vehicle, which was actually registered to Rose Pander, the mother of Appellant and Georgianna. The vehicle was processed, no weapons were found in the vehicle, and no blood was seen in or on the vehicle. The vehicle was released back to its owner on January 3, 2008. On January 9, 2008, a defense investigator took pictures of the vehicle. One of the pictures revealed what appeared to be blood on the passenger-side of the vehicle. No testing was performed by the defense, nor was any request made to the Commonwealth to conduct testing.[2]

On re-direct examination of Detective David Baker, who had processed the vehicle, the Commonwealth asked the following:

Q. Do you know for a fact what is in Defenses' photograph [is] blood?
A. No, I cannot.
Q. Can it be determined what it is?
A. Yeah, if it's sent to our criminalistics laboratory and analyzed.
Q. And you're not aware of any request that was made by the ...

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