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[U] Commonwealth v. Sedlak

Superior Court of Pennsylvania

February 20, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
BRYAN JOSEPH SEDLAK, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order, October 12, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0015740-2007

BEFORE: FORD ELLIOTT, P.J.E., GANTMAN AND SHOGAN, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Appellant appeals the order dismissing his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Finding no error, we affirm.

On February 18, 2009, a jury found appellant guilty of third degree murder and abuse of a corpse. The charges arose from appellant's shooting of Patrick Kenney on February 2, 2005 at a tanning salon owned by appellant in Homestead. Appellant raised a defense of self-defense at trial claiming that Kenney, in a cocaine-fueled aggression, demanded more cocaine from appellant at gunpoint. Appellant claimed that Kenney opened fire first and that he killed him by returning fire. The abuse of a corpse charge stemmed from appellant's cutting up of the victim's body to dispose of it.

On August 10, 2009, appellant was sentenced to an aggregate term of 19 to 38 years' imprisonment. On April 7, 2011, this court affirmed the judgment of sentence, and on September 12, 2011, our supreme court denied appeal. Commonwealth v. Sedlak, 29 A.3d 825 (Pa.Super. 2011) (unpublished memorandum), appeal denied, 611 Pa. 682, 29 A.3d 373 (2011).

On August 16, 2012, appellant timely filed a counseled PCRA petition. On September 12, 2012, the PCRA court issued notice pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss the petition without hearing within 30 days. As noted, on October 12, 2012, the court dismissed the PCRA petition. This timely appeal followed.

On appeal, appellant raises the following issues:

I. DID THE PCRA COURT ERR IN DENYING MR. SEDLAK AN EVIDENTIARY HEARING ON THE ISSUE OF WHETHER HIS APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT TO THE SUPERIOR COURT THE BLATANT ERROR OF THE TRIAL COURT IN REFUSING TO CLARIFY FOR THE JURY THAT A FINDING OF GUILT AS TO THE ABUSE OF CORPSE CHARGE WOULD NOT AUTOMATICALLY DEFEAT MR. SEDLAK'S SELF-DEFENSE CLAIM?
II. DID THE PCRA COURT ERR IN DENYING MR. SEDLAK AN EVIDENTIARY HEARING ON THE ISSUE OF WHETHER HIS TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW, SUBPOENA, AND CALL BILL ROBINSON AS A WITNESS, WHERE MR. ROBINSON'S TESTIMONY WAS RELEVANT TO MR. SEDLAK'S STATE OF MIND SHORTLY BEFORE THE SHOOTING AND COULD HAVE RAISED A REASONABLE DOUBT AS TO HIS GUILT?
III. DID THE PCRA COURT ERR IN DENYING MR. SEDLAK AN EVIDENTIARY HEARING ON THE ISSUE OF WHETHER HIS TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT AN EXPERT WITNESS TO TESTIFY AS TO THE EFFECT OF HEAVY COCAINE USE ON ONE'S MENTAL STATE AND BEHAVIOR, WHERE SUCH TESTIMONY MAY HAVE LED THE JURY TO HAVE A REASONABLE DOUBT AS TO THE COMMONWEALTH'S CLAIM THAT MR. SEDLAK DID NOT ACT IN SELF-DEFENSE?
IV. DID THE PCRA COURT ERR IN DENYING MR. SEDLAK AN EVIDENTIARY HEARING ON THE ISSUE OF WHETHER HIS TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL A BALLISTICS EXPERT TO TESTIFY IN SUPPORT OF THE SELF-DEFENSE CLAIM WHERE SUCH TESTIMONY MAY HAVE CREATED A REASONABLE DOUBT AS TO MR. SEDLAK'S GUILT?
V. DID THE PCRA COURT ERR IN DENYING MR. SEDLAK AN EVIDENTIARY HEARING ON THE ISSUE OF WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION WHICH EXPLAINED THAT THE EVIDENCE OF THE VICTIM'S VIOLENT PROPENSITIES WHEN USING COCAINE WAS CRITICAL TO THE SELF-DEFENSE CLAIM?
VI. DID THE PCRA COURT ABUSE ITS DISCRETION IN DISMISSING THE POST-CONVICTION PETITION WITHOUT A HEARING WHERE MR. SEDLAK MET THE ELIGIBILITY REQUIREMENTS FOR RELIEF UNDER THE PCRA, AND PRESENTED GENUINE ISSUES OF MATERIAL FACTS WHICH IF PROVEN WOULD ENTITLE HIM TO RELIEF?

Appellant's brief at 4.

Our standard of review for an order denying post-conviction 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. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.

Moreover, as most of the issues on appeal are stated in terms of ineffective assistance of counsel, we also note that appellant was required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this test will cause the entire claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed to be effective, and appellant has the burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

We will first examine appellant's fifth and sixth issues. In his fifth issue, appellant claims that counsel was ineffective in failing to request a jury instruction as to the relevance to appellant's defense of self-defense of evidence of the victim's violent propensities. At trial, John Edward Kirk testified that he was a lifelong friend of the victim Kenney. (Notes of testimony, 2/10/09 at 21.) Kirk testified that once Kenney started abusing cocaine, their relationship faded because Kenney had become crazy and addicted and was always getting into fights. (Id. at 37-39.)

The supreme court has previously summarized the law of self-defense regarding evidence of the character of the victim:

In Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), we said testimony as to the victim's character is admissible for the following purposes: (1) to corroborate the defendant's alleged knowledge of the victim's violent character to corroborate the defendant's testimony that he had a reasonable belief his life was in danger and (2) to prove the allegedly violent propensities of the victim to show he was the aggressor. We further noted that, generally, character can be proved only by reputation evidence. In Commonwealth v. Darby, 473 Pa. 109, 373 A.2d 1073 (1977), we held that convictions and violent acts of a victim which did not result in conviction, of which the defendant had knowledge, could be introduced for the first purpose mentioned in Commonwealth v. Amos, supra. We further held, however, that violent acts which did not result in conviction could not be offered for the second purpose announced in Commonwealth v. Amos, supra.

Commonwealth v. Smith, 490 Pa. 380, 385-386, 416 A.2d 986, 988 (1980); see also Commonwealth v. McClain, 587 A.2d 798, 802-803 (Pa.Super. 1991), appeal denied, 528 Pa. 636, 598 A.2d 993 (1991).

Thus, where a defense of self-defense is raised, evidence of the victim's violent character is admissible and relevant to show either: 1) that the accused reasonably believed he was in danger of death or serious bodily injury or; 2) that the victim had violent propensities and was likely the aggressor. Under the first prong, the evidence must show that the accused was aware of the evidence of the victim's violent character. Under the second prong, the evidence must consist of convictions for violent crimes. However, it need not be shown that the accused was aware of the convictions. Commonwealth v. Beck, 485 Pa. 475, 478, 402 A.2d 1371, 1372 (1979). Where such evidence exists, upon the accused's request, the court should instruct the jury as to its relevance. Commonwealth v. Fisher, 493 A.2d 719, 723-724 (Pa.Super. 1985). Where counsel fails to request such an instruction, the representation has been ineffective. Id.

Instantly, there was no evidence presented that appellant was aware of Kirk's claim that Kenney was crazy and always getting into fights. In fact, appellant testified that until the night in question, he had never had a fight, argument, or problem with Kenney. (Notes of testimony, 2/12/09 at 108.) Clearly, no proof was presented that appellant was aware of Kenney's alleged combative nature. Thus, Kirk's evidence is wholly irrelevant as to prong one. Furthermore, there was no evidence presented that Kenney was convicted of any crimes of violence in relation to the fights to which Kirk testified. Thus, Kirk's evidence is wholly irrelevant as to prong two also. Since Kirk's evidence was irrelevant on both prongs, counsel cannot be regarded as ineffective for failing to request a jury instruction as to the relevance of Kirk's testimony to appellant's defense of self-defense. There is no merit here.

In his sixth issue, appellant argues that the PCRA court erred in not holding an evidentiary hearing on his issues. We disagree:

[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super.2001). It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. Id. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing. Commonwealth v. Hardcastle, 549 Pa. 450, 454, 701 A.2d 541, 542-543 (1997).

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012), quoting Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).

We have examined each of appellant's issues and found them to be wholly without merit and not requiring an evidentiary hearing to resolve. Furthermore, we find that appellant's remaining four issues need no further discussion by us. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, it is our determination that there is no merit to the remaining questions raised on appeal. The trial court's comprehensive, 19-page opinion, filed on September 12, 2012, thoroughly discusses and properly disposes of the remaining four questions presented. We will adopt it as our own and affirm on those bases.

Accordingly, having found no error below, we will affirm the order of the PCRA court.

Order affirmed.


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