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[U] Commonwealth v. Russell

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
GEORGE EARL RUSSELL, JR., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of June 11, 2013 In the Court of Common Pleas of Perry County Criminal Division at No(s): CP-50-CR-0000002-2010

BEFORE: MUNDY, OLSON AND STABILE, JJ.

MEMORANDUM

OLSON, J.

Appellant, George Earl Russell, Jr., appeals from the order entered on June 11, 2013 denying his petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The trial court accurately outlined the factual background of this case as follows:

On [October 24, 2009], Appellant, while under the influence of alcohol, drove a car which collided with another vehicle on Windy Hill Road in Perry County. He immediately fled the scene and was followed to Orchard Hills Mobile Home Park where witnesses were able to confront Appellant and contact police.

PCRA Court Opinion, 8/29/13, at 1.

The procedural history of this case is as follows. On May 28, 2010, a jury convicted Appellant of driving under the influence- incapable of safe driving, [1] driving under the influence- highest rate of alcohol, [2] driving under suspension- DUI related, [3] and several additional traffic offenses. He was sentenced to an aggregate term of 15 to 63 months' imprisonment. The trial court granted Appellant's post-sentence motion to indicate that he was eligible for the recidivism risk reduction incentive. Appellant did not file a direct appeal. Thereafter, Appellant filed a pro se PCRA petition and counsel was appointed. On May 10, 2013, an evidentiary hearing was held regarding Appellant's petition. After post-hearing briefs were filed, the PCRA court denied Appellant's petition on June 11, 2013. This timely appeal followed.[4]

Appellant presents one issue for our review.
Whether the [PCRA] court erred in [denying] Appellant's PCRA petition where Appellant's trial counsel failed to conduct an independent investigation of his client's case thus depriving Appellant of effective assistance of counsel?

Appellant's Brief at 4.

As most PCRA appeals involve mixed questions of fact and law, "[o]ur standard of review of a [PCRA] court order granting or denying relief under the PCRA calls upon us to [consider] whether the determination of the PCRA court is supported by the evidence of record and is free of legal error." Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa.Super. 2013) (internal quotation marks and citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa.Super. 2013) (citation omitted).

Appellant's claim relates to the purported ineffectiveness of his trial counsel. A "defendant's right to counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, [Section] 9 of the Pennsylvania Constitution is violated where counsel's performance so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (internal quotation marks and citation omitted). "Counsel is presumed to be effective." Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012) (citation omitted).

In order to overcome the presumption that counsel was effective, Appellant must establish that "(1) the underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his client's interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different." Commonwealth v. Luster, 71 A.3d 1029, 1039 (Pa.Super. 2013) (internal alterations, quotation marks, and citation omitted). "The burden of proving ineffectiveness rests with the appellant, " and "[t]he failure to satisfy any one of the prongs of the test for ineffective assistance of counsel requires rejection of the claim." Commonwealth v. Hill, 42 A.3d 1085, 1089-1090 (Pa.Super. 2012), appeal granted on other grounds, 58 A.3d 749 (Pa. 2012) (citations omitted).

Appellant claims that his trial counsel's investigation into the facts and circumstances surrounding the accident at issue was non-existent or inadequate. As our Supreme Court has explained:

Counsel has a general duty to undertake reasonable investigations or make reasonable decisions that render particular investigations unnecessary. Counsel's unreasonable failure to prepare for trial is an abdication of the minimum performance required of defense counsel. The duty to investigate, of course, may include a duty to interview certain potential witnesses; and a prejudicial failure to fulfill this duty, unless pursuant to a reasonable strategic decision, may lead to a finding of ineffective assistance.

Commonwealth v. Johnson, 966 A.2d 523, 535–536 (Pa. 2009) (internal quotation marks and citations omitted).

We conclude that the PCRA court's determinations are supported by the record and free of legal error. Appellant is unable to prove that his underlying claim is of arguable merit or that he was prejudiced by trial counsel's investigation. As to the arguable merit prong of ineffectiveness, Appellant contends that his counsel's investigation was not sufficient because counsel did not interview the prosecution's witnesses nor did he visit the scene of the accident. However, there is no affirmative requirement that counsel interview the prosecution's witnesses prior to trial. See Commonwealth v. Sattazahn, 952 A.2d 640, 663-664 (Pa. 2008). Indeed, if the information can be gathered from some other source, counsel cannot be deemed ineffective for failing to interview a prosecution witness. See id.

The PCRA court found that interviewing the prosecution witnesses was unnecessary as the information could be gathered by other means, i.e., their statements given prior to trial. PCRA Court Opinion, 8/29/13, at 5. Appellant did not present any evidence at the PCRA hearing that would indicate trial counsel would have been able to glean anything from interviewing the witnesses that he could not deduce from their statements. As such, the PCRA court's finding that it was unnecessary for trial counsel to interview the witnesses in order to provide effective assistance of counsel is supported by the record.

Appellant's argument that his trial counsel was required to visit the scene of the accident to provide effective assistance of counsel is also without merit. First, there is no such requirement in Pennsylvania. Second, at the PCRA hearing trial counsel testified that he knew the "lay of the land" in the area the accident occurred from his work in the public defender's office. N.T., 5/10/13, at 57. Thus, there was no need for trial counsel to go to the scene of the accident because he was familiar with the area.

Furthermore, the PCRA court noted that:

Trial [c]ounsel testified that he met with Appellant on several occasions prior to trial and they devised a list of available defense witnesses. Counsel prepared subpoenas and four [] of those individuals actually testified at trial. Appellant and [t]rial [c]ounsel decided their primary defenses were that Appellant was not driving, and the alleged accident never happened.

PCRA Court Opinion, 8/29/13, at 5 (footnote omitted). It is evident from this factual recitation that trial counsel did prepare for trial by meeting with his client several times and devising a trial strategy. He was able to secure the testimony of four witnesses through subpoena. In addition, Appellant's wife testified at trial. It was not necessary for trial counsel to interview the prosecution's witnesses or visit the scene of the accident in order to provide effective assistance. The record supports the PCRA court's determination that counsel conducted an appropriate investigation and properly prepared for trial. Thus, we conclude that Appellant has failed to demonstrate that his underlying claim has arguable merit.

Furthermore, Appellant has failed to prove that he was prejudiced as a result of the purported ineffectiveness of his trial counsel. The evidence presented at trial was overwhelming. Nine witnesses testified on behalf of the Commonwealth. Five of those witnesses testified that they saw Appellant driving the vehicle. PCRA Court Opinion, 8/29/13, at 4. Two of those five witnesses "never lost sight of Appellant's car and were able to successfully follow him until he brought the vehicle to a complete stop[.]" Id. The Commonwealth also established, through the testimony of two witnesses, that Appellant had a blood alcohol content of .296 on the night of the incident in question. Id.

Appellant called six witnesses, including himself, on his own behalf. Those witnesses testified to the facts that Appellant alleges his counsel would have been able to learn if he had conducted an independent investigation, i.e., that Appellant was not driving the vehicle and the Commonwealth's witnesses' stories were implausible. This shows that Appellant was not prejudiced by any alleged shortcomings of his trial counsel's investigation. The jury made credibility determinations regarding the 15 witnesses called at trial and chose to believe the nine witnesses called on behalf of the Commonwealth over the six witnesses called on Appellant's behalf. Therefore, even if Appellant was able to prove that his underlying claim is of arguable merit, and that his counsel's actions were unreasonable, he is unable to prove prejudice. See Commonwealth v. Spotz, 2014 WL 185435, *18 (Pa. Jan. 17, 2014).

In sum, we conclude that the PCRA court's determination that Appellant's underlying claim lacks arguable merit and that Appellant has failed to prove the requisite prejudice for his ineffective assistance of counsel claim is supported by the record and free of legal error. Therefore, we affirm the denial of Appellant's PCRA petition.

Order affirmed.

Judgment Entered.


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