United States District Court, W.D. Pennsylvania
REPORT and RECOMMENDATION
ROBERT C. MTCHELL, District Judge.
It is respectfully recommended that the petition of Garry David Swartzwelder for a writ of habeas corpus be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
Garry David Swartzwelder, an inmate at the State Correctional Institution-Huntingdon has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis.
Swartzwelder is presently serving a seven and a half to fifteen year sentence to be followed by a ten year period of probation following his conviction of involvement in an accident involving death or personal injury as a result of a July 1, 2006 motor vehicle accident and on charges of aggravated assault and resisting arrest as a result of a July 15, 2006 incident, at Nos. 1826 and 1827 of 2006 in the Court of Common Pleas of Butler County, Pennsylvania. This sentence was imposed on May 30, 2007.
An appeal was taken to the Superior Court in which the issues presented were:
I. Did the trial court commit legal error or abuse its discretion by permitting a police officer who was not trained in accident reconstruction or established as an expert in accident reconstruction to provide testimony to establish where the defendant was seated in a vehicle based upon injuries received by the defendant?
II. Did the trial court commit legal error and/or abuse its discretion by denying defense counsel's motion for a mistrial based upon prejudicial open court statements made by a Commonwealth witness/police officer about defendant's twin brother in the presence of the jury?
III. Did the trial court commit legal error and/or abuse its discretion by permitting prejudicial photos of victim to be viewed by the jury which outweighed any probative value?
IV. Did the trial court commit legal error and/or abuse its discretion by denying defense counsel's request for a jury instruction for the lesser offense of simple assault?
V. Did the trial court commit legal error and/or abuse its discretion by sustaining an objection by the Commonwealth regarding defense counsel's use of Commonwealth Exhibit 6 during cross examination of a nurse to establish that an injury may merely appear serious but in reality may not be serious?
VI. Did the trial court commit legal error and/or abuse its discretion by denying defense counsel's motion for judgment of acquittal with regard to the charge of resisting arrest?
On July 7, 2008 the judgment of sentence was affirmed.
On April 7, 2009, Swartzwelder filed a post-conviction petition. That petition was granted in part and petitioner's sentence was corrected from his original 7 ½ to 15 year sentence to a 78-156 month period of incarceration on the aggravated assault count, to be followed by 84 months of probation. In all other respects, post-conviction relief was denied. An appeal was taken to the Superior Court in which the issues presented were:
1. The PCRA court erred in concluding that joinder of the two criminal cases was appropriate under Pennsylvania Rule of Criminal Procedure 582 where the PCRA court declined to properly distinguish between that rules requirement that evidence of each of the offenses be admissible in a separate trial for the other and the defendant's intention to challenge the Commonwealth's evidence of the injuries produced by each incident.
2. The PCRA court lacked sufficient evidence to conclude that the pretrial counsel had any articulable trial strategy designed to benefit the defendant, when he failed to file a motion to sever the two cases, where he had not spoken to the defendant up to the day before the omnibus motion to sever was due or thereafter.
3. The PCRA court erred when it concluded that it was reasonable trial strategy, and not prejudicial, to expose the defendant to having additional criminal charges tried before the same jury in order to obtain admission regarding Minda's injuries from the July 1, 2006, auto accident.
4. The PCRA court erred when it concluded that the defendant failed to establish at the PCRA hearing that, with the assistance of a medical expert testifying on the defendant's behalf, there was a reasonable probability the outcome of the trial would have been different.
5. The PCRA court erred when it concluded that trial counsel was not ineffective for not objecting to the bloody photographs on the basis that they were misleading, confusing and therefore not relevant because the blood obfuscated the face and the July 1, 2006 injuries could not be distinguished from the July 15, 2006 injuries.
6. The PCRA court erred when it concluded that the defendant was not prejudiced by two outbursts in open court from the defendant's identical twin brother where one outburst distracted the jurors to the point of talking about it amongst themselves and where one outburst was characterized as a threat to the police officer who had testified earlier that day that the defendant had resisted arrest.
7. The trial court had rendered an illegal sentence in violation by sentencing the defendant to more [than] the maximum sentence; its attempt to correct the illegal ...