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[U] Commonwealth v. Crowson

Superior Court of Pennsylvania

February 7, 2014



Appeal from the PCRA Order March 1, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016152-2007




Matthew Lyle Crowson appeals from the March 1, 2013 order denying PCRA relief. After thorough review, we affirm .

On October 15, 2007, Appellant pled guilty to involuntary manslaughter, homicide by vehicle while driving under the influence, homicide by vehicle, accidents involving death/ personal injury, accidents involving damage to attended vehicle/ property, immediate notice of accident, reckless driving, and two counts of driving under the influence. The charges stemmed from his July 4, 2007 collision with a vehicle being driven by Renee Michelle Parkinson, a twenty-six-year-old teacher, on Interstate 79 northbound in Marshall Township. From the factual basis for the guilty plea articulated by the Commonwealth, we glean the following additional facts. Numerous eyewitnesses told police that Appellant was driving erratically by weaving in and out of traffic at a high rate of speed. He rear-ended Ms. Parkinson's vehicle, causing it to flip over a number of times. Ms. Parkinson was ejected from the vehicle, and she died at the scene. Appellant did not stop or render aid. He was arrested after he stopped at a gasoline station in Warrendale to ask for directions to the nearest hospital. He admitted to police that he was the operator of the vehicle involved in the accident and stated that he was talking on his cell phone at the time. He displayed slurred speech, glassy bloodshot eyes, and slowed movement consistent with intoxication. Appellant's blood alcohol reading taken within two hours of the accident was .152% .

The Commonwealth proffered that Pennsylvania State Police Corporal D'Andrea, whose first name does not appear in the record, would have provided expert accident reconstruction testimony that Appellant's vehicle was traveling at a speed of 101 miles per hour at impact. The Commonwealth also would have introduced letters Appellant wrote to the victim 's family admitting his guilt.

The sentencing was held on September 15, 2008. The Commonwealth presented impact statements from three members of the victim's family and two exhibits. The first exhibit contained photographs of the victim and information about her life. The second exhibit contained numerous letters from the victim 's family, her students, their parents and members of the faculty and staff of the school where she taught. Appellant addressed the court but did not introduce any character witnesses. At the conclusion of the hearing, the court imposed an aggregate sentence of seven to fourteen years imprisonment.

Appellant engaged new counsel who filed a timely post-sentence motion challenging the sentence as excessive and alleging that the trial court failed to state adequate reasons on the record for the sentences imposed. The court also granted permission for the filing of an amended post-sentence motion and extended the time for ruling on the motion. No amended post-sentence motion was filed, and by order dated May 12, 2009, the pending motion was denied by operation of law. Appellant did not file a direct appeal.

On March 26, 2010, Appellant filed a counseled PCRA petition, which was am ended on April 22, 2010. The thrust of the petition was that trial counsel was ineffective for failing to call character witnesses on Appellant's behalf at the sentencing. Appended thereto were statements from twenty-eight persons who were willing and able, had they been contacted, to provide testimony of Appellant's good character. On June 24, 2010, the court filed a Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing and, on July 29, 2010, the PCRA petition was dismissed.

Counsel timely appealed on August 25, 2010. This Court found arguable merit in Appellant's claim that counsel was ineffective in failing to discuss or call character witnesses, which deprived Appellant of mitigating evidence at sentencing. Commonwealth v. Crow son, 60 A.3d 557 (Pa.Super. 2012) (unpublished memorandum). Without an evidentiary hearing, however, this Court was unable to determine whether Appellant was denied effective assistance of counsel. Thus, we vacated the trial court's order dismissing the PCRA petition and remanded for a hearing to determine if counsel was ineffective for failing to discuss and/ or call character witnesses at the sentencing hearing.

An evidentiary hearing was held on November 20, 2012, and on March 1, 2013, the PCRA court denied the petition. The court stated that, while trial counsel was deficient for failing to call character witnesses at sentencing, there was no prejudice as "petitioner's sentence would remain the same even if character witnesses would have testified." Trial Court Order, 3/ 1/ 13, at 1.

Appellant timely appealed, com plied with the court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and the court issued its Rule 1925(a) opinion. Appellant raises one issue for our consideration:

1. Did the trial court err in denying Appellant's PCRA petition since, even though the trial court acknowledged that plea/ sentencing counsel Johnson was ineffective for failing to present reputation/ character witnesses at Appellant's sentencing hearing, the trial court still determined that Appellant's lengthy 7-14 year sentence of imprisonment was appropriate; Appellant avers that the character/ reputation witnesses who testified at the 11/20/ 12 PCRA hearing, and others who submitted affidavits (attached to Appellant's 3/ 26/ 10 PCRA petition), and Appellant's own testimony at the PCRA hearing, provided favorable testimony/ information that warranted a much reduced sentence for Appellant?

Appellant's brief at 3.

Appellant correctly states our standard and scope of review from the denial of PCRA relief:

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any ground of the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012) (citations omitted).

Appellant's claim of ineffective assistance of counsel is properly asserted under the PCRA. In order to prevail on such a claim, however, Appellant must plead and prove all of the following: (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. Where the claim relates to counsel's failure to call a witness, the petitioner must demonstrate that the witness existed and was available, that counsel was aware or should have been aware of the witness's existence, that the witness would have testified on the petitioner's behalf, and that the failure to elicit such testimony prejudiced the petitioner. Commonwealth v. Wantz, __ A.3d __, 2014 WL 117094 * 7 (Pa.Super. January 14, 2014) (citing Commonwealth v. Sneed, 45 A.3d 1096, 1108– 09 (Pa. 2012)).

Appellant attached to his PCRA petition letters from twenty-eight persons who knew him and who represented that they would have offered testimony as to his good character at sentencing if defense counsel had contacted them. At the PCRA evidentiary hearing, three of those persons testified: Jennifer Urcho, the mother of Appellant's son; Sandra Crowson, Appellant's mother; and Edward Urcho, Jennifer's father. Mr. and Mrs. Jenkins, Appellant's uncle and aunt, Kimberly Urcho, Edward's wife, Kimberly Urcho and Christine Gorby, Jennifer's sisters, and Dale Keller, who assisted Appellant in obtaining employment, were at the PCRA hearing and available to testify. The Commonwealth stipulated that their testimony would have been consistent with their certifications. N.T. PCRA Hearing, 11/ 20/ 12, at 46. The Commonwealth incorporated the sentencing transcript of September 15, 2008, and two exhibits that were admitted at that proceeding. Appellant also introduced the Department of Veteran Affairs certification that Appellant was diagnosed with post-traumatic stress disorder ("PTSD") in 2011. The Commonwealth objected to the relevance of the diagnosis because Appellant had not been diagnosed with PTSD as of the sentencing hearing in 2008. The PCRA court admitted the document, noting that "[t]he weight I give it will be subject to my evaluation." Id. at 49.

The PCRA court concluded that, while counsel should have called character witnesses, Appellant failed to demonstrate prejudice. Counsel will not be found ineffective for failing to call a witness unless the petitioner can show that the testimony would have been helpful. Sneed, supra. "A petitioner establishes prejudice when he demonstrates that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. The result of the proceeding is the stage of proceeding at which the error occurred." Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009). The PCRA court, which was the sentencing court, stated that, even if it had heard the testimony of the character witnesses, "the Trial Court still would have sentenced Appellant as he was sentenced." Order of Court, 3/1/13, at 1.

Since the PCRA court found that the result of the sentencing proceeding would not have been different, Appellant did not prove prejudice. That ruling is supported by evidence of record and free of legal error; hence, we have no basis to disturb it. No relief is due.

Order affirmed.

Judgment Entered.

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