February 26, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
JOSEPH SHEGOG, Appellant
Appeal from the PCRA Order of April 8, 2013 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0000525-2001
BEFORE: PANELLA, OLSON AND WECHT, JJ.
Appellant, Joseph Shegog, appeals from the order entered on April 8, 2013, denying relief on his petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. We affirm.
The PCRA court briefly summarized the facts and procedural history of this case as follows:
[Appellant] was charged with the December 24, 2000 homicide of Joseph Anderson and was found guilty of [m]urder in the [f]irst[-d]egree following a jury trial in December of 2005. [Appellant] was then sentenced to life imprisonment on January 11, 2006. On or about December 3, 2010, [Appellant] filed a [p]ro [s]e PCRA [p]etition alleging [six] grounds for relief. On April 13, 2012, counsel for [Appellant] filed a [s]upplemental PCRA [p]etition alleging [six] additional grounds for relief. A hearing on [Appellant's] PCRA [p]etition was held September 17, 2012.
[Appellant] also filed a separate [p]ro [s]e [p]etition on August 28, 2012 [within 60 days of the U.S. Supreme Court's decision in Miller v. Alabama, 132 S.Ct. 2455 (2012).
PCRA Court Opinion, 4/8/2013, at *1. The PCRA court denied relief by order and opinion entered on April 8, 2013. This timely appeal resulted.
On appeal, Appellant raises the following issues for our consideration:
1. Was  there a conflict of interest in Attorney Benyo representing [Appellant]. Neither [Appellant] nor anyone in his family hired Benyo, Benyo was paid by a Terrell Lindsey to get [Appellant] to lie and say that Terrell Lindsey was responsible for [Appellant] turning himself into authorities so that Lindsey would get some consideration at his sentencing in federal court. Benyo's loyalties were compromised.
2. Was [Appellant] denied his right to a public trial and counsel for [Appellant] was ineffective for not objecting to said procedure where part of the jury selection was closed to the public as well as to [Appellant's] family.
3. Was trial counsel ineffective for not consulting with [Appellant] about the defense of the case [and] for not developing a trial strategy based upon the facts and evidence of the case.
4. Was trial counsel ineffective where he did not conduct an independent investigation of the facts and evidence which would have led him to pursue a case of self[-] defense where the victim had a gun at the time of the incident and was known as an extremely violent person who shot the police chief of Aliquippa[, ] Pa.
5. Was trial counsel ineffective for not investigating the available eyewitness[, i.e. Rashawdi] Pugh, who was at the scene of the crime and would have testified that he saw the deceased reaching for his gun and was getting ready to shoot  [A]ppellant as well as testifying that the deceased had a reputation in the community as being violent, dangerous and a shooter.
6. Was trial counsel ineffective for improperly influencing/insisting that [Appellant] testify in his own defense when [Appellant] did not want to testify because he knew that his testimony was not truthful but done out of fear in admitting that he shot the deceased in self[-]defense.
Appellant's Brief at 3-4.
"On appeal from the denial of PCRA relief, we must determine whether the PCRA court's findings are supported by the record and whether the order is otherwise free of legal error. We will not disturb the PCRA court's findings unless they have no support in the record." Commonwealth v. Maynard, 900 A.2d 395, 397 n.4 (Pa.Super. 2006). Likewise, "[t]he law is clear that we are bound by the credibility determinations of the PCRA court, where such findings have support in the record." Commonwealth v. Clark, 961 A.2d 80, 87 (Pa. 2008).
Appellant alleges in all of his issues on appeal that trial counsel was ineffective. In order to obtain relief under the PCRA for counsel's ineffectiveness, "a petitioner must prove that: (1) the underlying legal claim is of arguable merit; (2) counsel had no reasonable strategic basis for proceeding as he did; and (3) there is a reasonable likelihood that, but for the challenged act of counsel, the outcome of the proceedings would have been different. The failure to satisfy any one of the three prongs is fatal to a petitioner's claim." Id. at 85 (citations omitted).
In his first issue presented, Appellant claims that trial counsel was ineffective because counsel had a conflict of interest. Appellant's Brief at 9. Appellant claims that trial counsel, Attorney Gerald Benyo, visited Appellant in prison prior to court proceedings without Appellant, or his mother, contacting Attorney Benyo or retaining him to represent Appellant at trial. Id. More specifically, Appellant avers:
The first time Mr. Benyo visited [Appellant] at the Beaver County Jail he explained to [Appellant] that he had spoken to Mr. Terrell Lindsey, a federal prisoner awaiting sentence in the United States District Court for the Western District of Pennsylvania, and if [Appellant] would give [Attorney] Benyo a sworn statement that Terrell Lindsey was responsible for [Appellant] turning himself in to authorities, Lindsey would help with and/or pay [Appellant's] attorney fees on the homicide trial. [Appellant] gave a statement to Attorney Benyo, memorialized by [a] court reporter, that Lindsey was responsible for [Appellant] turning himself into [sic] authorities. In turn, [Attorney] Benyo turned the aforementioned statement over to representatives of Lindsey and [Attorney] Benyo represented [Appellant] at no charge, in a homicide case, as he had promised, in return for [Appellant's] statement re Lindsey. Any and all moneys received by [Attorney] Benyo were from Lindsey and other people acting on Lindsey's behalf.
In fact, [Appellant] never knew Lindsey, Lindsey had nothing to do with him turning himself in[, ] but [Appellant] figured that this was his way to get a free lawyer, he did not want the public defender so he went ahead with this sham. He was told this statement was going to be given to a federal judge to help Lindsey at his sentencing hearing. [Attorney] Benyo turned over this statement to either Lindsey or his attorney. Rule of Professional Conduct 1.2(d) provides a lawyer may not assist in conduct that the lawyer knows is fraudulent yet in this case [Attorney] Benyo played a role in a fraudulent misrepresentation that Lindsey had something to do with [Appellant] turning himself in. As it turns out, this is a common scam for federal prisoners to have their sentences reduced.
Id. at 9-10 (record citations omitted). Appellant claims that Lindsey controlled the fees paid to Appellant's trial counsel and refused to pay additional funds for an investigator. Id. at 13. In addition, the trial court refused to pay for an investigator, because counsel was not court appointed. Id. In sum, Appellant argues that trial counsel had a conflict of interest that "was actual, real and created situation where [Attorney] Benyo was trying to serve two masters and had no independent loyalty to [Appellant]." Id. at 14.
The PCRA court determined:
[At the PCRA hearing, ] [t]rial counsel testified that during his representation of [Appellant] he arranged to memorialize an agreement between Mr. Lindsey and [Appellant]. Trial counsel did not represent Mr. Lindsey in any capacity. The deal made between Mr. Lindsey and [Appellant] included that Mr. Lindsey was to contribute to paying for [Appellant's] legal defense in exchange for [Appellant's] testimony that Mr. Lindsey was responsible for [Appellant] turning himself [in to authorities] five (5) years after the murder of Joseph Anderson. This agreement was made when [Appellant's] cousin, Jamar Shegog, was contacted by Mr. Lindsey with the deal. Nothing in the facts presented shows an actual conflict of interest existed at any time while [Appellant] was representing [Appellant]. The issue is without merit.
PCRA Court Opinion, 4/8/2013, at *12 (record citations omitted).
We agree with the PCRA court that there is no merit to Appellant's claim, as there was no actual conflict of interest. Appellant claims that he and Lindsey were both interested parties and that trial counsel's representation was a conflict of interest. Trial counsel testified at the PCRA hearing that he did not represent Terrell Lindsey in any capacity. PCRA Court Opinion, 4/8/2013, at * 11. The PCRA court credited trial counsel's testimony that he did not represent Lindsey in any capacity. Instead, Appellant's cousin, Jamar Shegog, arranged a deal for Lindsey "to contribute to paying for [Appellant's] legal defense in exchange for [Appellant's] testimony that Mr. Lindsey was responsible for [Appellant] turning himself in five (5) years after the murder[.]" Id.
Moreover, Appellant has not pled and proven prejudice. To prove prejudice under the PCRA, "the defendant [must] show that counsel's conduct had an actual adverse effect on the outcome of the proceedings." Commonwealth v. Spotz, -- A.3d --, 2014 WL 185435 (Pa. 2014). "An appellant cannot prevail on a preserved conflict of interest claim absent a showing of actual prejudice." Commonwealth v. Collins, 420, 957 A.2d 237, 251 (Pa. 2008) (citation omitted). We may not presume prejudice. As previously mentioned, trial counsel did not represent Lindsey, there was no conflicting interest, and, therefore, there was no adverse effect on counsel's performance. Further, as discussed at length infra, trial counsel conducted a reasonable pre-trial investigation based upon the information he had prior to trial from discovery, police reports, witness statements, and information provided by Appellant and his family. Hence, a paid private investigator was unnecessary and, therefore, there is no factual predicate that Lindsey somehow controlled trial counsel's representation of Appellant to his detriment. Accordingly, Appellant has not proven actual prejudice and his first claim fails.
In his second issue presented, Appellant argues that he was denied his Sixth Amendment right to a public trial when jury selection occurred outside of public view in the jury deliberation room. Appellant's Brief at 16. As such, Appellant claims trial counsel was ineffective for not objecting to this procedure. Id. Appellant also asserts that trial counsel told Appellant's mother that she was not permitted in the courtroom during juror voir dire. Id. at 21. He claims that prejudice is presumed since he was denied the right to a public trial. Id. at 16-18.
The PCRA court, relying on Pa.R.Crim.P. 631,  determined that voir dire was proper and there is no merit to Appellant's claim. More specifically, the PCRA court noted that general voir dire was conducted in view of the public with additional individual voir dire conducted beyond the hearing and outside the presence of the other jurors. PCRA Court Opinion, 4/8/2013, at *12-13.
"The Sixth Amendment right to a public trial in a criminal case is binding on the states through the due process clause of the Fourteenth Amendment." Commonwealth v. Phillips, 946 A.2d 103, 109 (Pa.Super. 2008) (citations omitted). "The right to a public trial is applicable to voir dire proceedings." Id. We are mindful "that such right serves two general purposes: (1) to prevent an accused from being subject to a star chamber proceeding; and (2) to assure the public that standards of fairness are being observed." Id. "The public's right to attend a trial is not absolute, and exists as a guarantee of fairness in judicial conduct during criminal court proceedings." Id. A trial court's decision regarding access to judicial proceedings is within the sound discretion of the trial court. Id. "Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will." Id. at 108-109.
Upon review, we discern no abuse of discretion of the trial court's chosen method of voir dire and, accordingly, there was no arguable merit to Appellant's ineffective assistance of counsel claim in this regard. Rule 631 allows the trial court latitude to conduct individual voir dire "beyond the hearing and presence of other jurors." Pa.R.Crim P. 631(E)(1)(a). The law allows it and Appellant does not complain that such a chosen course of action was the result of partiality, prejudice, bias or ill will. Thus, there is no arguable merit to Appellant's second claim and it fails.
Moreover, we conclude that Appellant has failed to plead and prove prejudice under the PCRA. Appellant argues that prejudice is presumed because voir dire was not open to the public. However, this case is currently being reviewed under the PCRA in a collateral proceeding. Thus, Appellant must plead and prove that trial counsel's failure "had an actual adverse effect on the outcome of the proceedings." Commonwealth v. Spotz, supra. Appellant does not suggest that the voir dire actually conducted had been suggestive or otherwise improper or that the jury selection process had been tainted. He does not suggest a likelihood that a jury selected in a different manner would have reached a different result. "Appellant has failed to show that public voir dire [in all facets – both general and individual-] would have offered a potential for success greater than the selection process actually utilized or that he was prejudiced in any way because his trial counsel failed to request an alternate procedure." Commonwealth v. Johnson, 500 A.2d 173, 177 (Pa.Super. 1985). Thus, even if we were to find arguable merit in Appellant's claim, he failed to show that the course followed by counsel affected the fairness of his trial or otherwise caused him actual prejudice. See id.
Appellant's last four issues are inter-related and we will address them together. In sum, Appellant avers that he acted in self-defense and trial counsel was ineffective for failing to develop and independently investigate the claim, failing to call an alleged eyewitness, Rashawdi Pugh, and for advising Appellant to testify that he was not present at the crime because if he testified to self-defense Appellant would receive a life sentence. Specifically, Appellant alleges that he told trial counsel that he did not shoot the decedent "because he did not want to appear as a killer to the jury." Appellant's Brief at 24. However, he claims that there was evidence available to trial counsel to adequately prepare a self-defense claim, inter alia, that "[t]he deceased had a reputation for being violent and dangerous, he shot at the Police Chief of Aliquippa and [Appellant's] mother, he was known as a shooter and there was bad blood between him and [Appellant]." Id. at 30. He further claims, "there was independent evidence that [the decedent] had a gun on him when he was shot and also eyewitness testimony that [the decedent] had his gun out when he was shot." Id. Hence, Appellant argues that "[t]he best and only viable defense was self[-]defense and trial counsel was ineffective for [disregarding Appellant's description of his role in the crime and] not raising [self-defense] at trial." Id. at 31. Appellant further claims that counsel could have set forth self-defense without insisting that Appellant testify against his will. Id. Finally, Appellant argues that trial counsel was ineffective for failing to call Pugh at trial. Id. at 32. He claims that Pugh would have testified that he saw the decedent reaching for a gun when he was shot. Id. at 33.
The PCRA court determined that Appellant presented innocence as his defense at trial. PCRA Court Opinion, 4/8/2013, at *5. The PCRA court noted that Appellant testified that he was not present when the victim was shot and that he did not have a gun in his possession. Id. Appellant's brother testified as an alibi witness at trial and claimed that Appellant was not at the location where the decedent was shot. Id. At the PCRA hearing, trial counsel testified that Appellant always told him that he did not shoot the decedent. N.T., 9/17/2012, at 25-30. Appellant testified at the PCRA hearing that the decedent reached for a gun and Appellant "pulled out a gun and shot him." Id. at 106. Appellant claimed that he told counsel this information. Id. at 107-110. The PCRA credited trial counsel's testimony and rejected Appellant's. Accordingly, the PCRA court determined that the innocence defense was a reasonable trial strategy, counsel's own additional investigation was adequate, calling Pugh to testify would not have advanced Appellant's innocence defense, and counsel's recommendation for Appellant to testify in his own defense was in-line with counsel's reasonable trial strategy. Id. at *5, 13-14. Thus, the PCRA court rejected Appellant's last four issues as presented on appeal. We agree.
Trial counsel testified that he conducted his own individual investigation of the facts of the case, including visiting the scene of the crime and taking photographs. N.T., 9/17/2012, at 25. He obtained witness statements made to police and reviewed them. Id. at 24. After receiving discovery from the Commonwealth and after speaking with Appellant five or six times, counsel and Appellant determined that they would present innocence as Appellant's defense, because Appellant "was not the person who shot J.D. Anderson." Id. at 25-26. Counsel testified that he considered self-defense because: (1) there was a violent history between the decedent and Appellant's family, and (2) a photograph of the decedent taken at the scene, as provided by the Commonwealth in discovery, showed a gun protruding from the decedent's pant pocket. Id. at 26-29. However, Appellant and his brother told trial counsel that they left the scene prior to the shooting, and both testified consistently with their statements at trial. Id. at 41-42, 75. Trial counsel stated that he believed "it would have been unethical for [him] to present [self-]defense to the jury [when he] knew [that] to be a false defense" because Appellant told him he was not at the scene. Id. at 74-75. Trial counsel also addressed Pugh's affidavit, attached to Appellant's PCRA petition, wherein Pugh stated that he saw the decedent draw a gun. Counsel stated that because he and Appellant were advancing an innocence defense, "whether [the decedent] pulled the gun out or not would not have been helpful." Id. at 52. Further, trial counsel testified that he "would have strongly encouraged [Appellant] to take the stand on his behalf and testify that he wasn't guilty of certain crimes[, ]" despite the fact that Appellant "was very reluctant to testify" because he was "very scared." Id. at 61.
Based upon the foregoing, we agree with the PCRA court that trial counsel had a reasonable strategy in not presenting a claim of self-defense on behalf of Appellant. Counsel stated that Appellant always maintained that he did not shoot the decedent. The PCRA court credited counsel's testimony and we will not disturb that determination. At trial, Appellant and his brother testified under oath that they were not present at the crime scene. Appellant suggests that trial counsel somehow had a duty to independently investigate facts outside of the information provided by Appellant. However, Appellant does not provide any legal authority and we have not found any for such a proposition. Trial counsel must be able to take Appellant's word in constructing a defense. Moreover, while there was a photograph provided to Appellant during discovery showing a gun protruding from the decedent's pocket, such evidence would not have furthered a claim of innocence predicated upon Appellant's absence from the scene.
Moreover, upon independent review of the affidavit of Pugh's proposed testimony and statements Pugh made to police after the shooting, Pugh never claimed he saw who shot the decedent. In his affidavit, Pugh merely stated that the decedent said, "what the [f-k] are you doing here?" and "reached into his waist band." Pugh Affidavit, 10/19/2010, at PCRA Petition, Exhibit 2. Pugh heard gunshots and witnessed the decedent get shot, but "[t]he shooter was on the other side of the refrigerator and [he] didn't see who it was." Id. Contrary to Appellant's present contention, Pugh's testimony was not so compelling as to obviate the need for Appellant to take the stand in support of a newly contrived self-defense claim. More importantly, Pugh's proposed testimony was completely unnecessary to support Appellant's innocence defense, which was based upon his own statements to trial counsel that he was not present at the scene when the shooting occurred. Accordingly, based upon the evidence available to trial counsel at the time of trial, it was reasonable to present an innocence defense. As such, Appellant's last four appellate issues must fail.