Argued, August 5, 2014
Appeal from the PCRA Order of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s).: CP-51-CR-0009831-2008. Before TUCKER, J.
Mitchell S. Strutin, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN, OTT, WECHT, STABILE, and JENKINS, JJ.
Anthony Pander appeals from the order entered December 17, 2012, in which the court denied his first counseled petition for post-conviction relief filed pursuant to the Post-Conviction Relief Act (" PCRA" ), 42 Pa.C.S. § 9541-9546. We affirm.
This case involves the killing of Andreas Gabrinidis, Appellant's brother-in-law. Appellant, his sister Georgianna Pander, and Georgianna's boyfriend, Brian Dingler, were celebrating New Year 2008 at Dingler's residence. Georgianna Pander informed Appellant that she was upset with the victim, causing Appellant to become extremely angry. As a result, Appellant exited the residence and entered the driver's seat of his car. Dingler followed Appellant at the behest of his girlfriend and entered the front passenger seat of the vehicle in an attempt to calm Appellant down. However, Appellant proceeded to drive his car, with Dingler as his passenger, to Mr. Gabrinidis' home, which was
fourteen miles away. Upon arriving at Mr. Gabrinidis' house, Appellant entered the home. The men began to argue and wrestle on Mr. Gabrinidis' enclosed porch. Mr. Gabrinidis attempted to flee, running down the street screaming for help and banging on his neighbors' doors. Appellant, however, continued his attack, knocking down Mr. Gabrinidis and assaulting him as he lay in the street.
Several neighbors of the victim, who were familiar with Appellant, witnessed the attack. Kimberly Bumpess heard screams from outside her window and observed Mr. Gabrinidis fleeing from his home. According to Ms. Bumpess, Mr. Gabrinidis ran to a neighbor's house screaming for assistance. Ms. Bumpess's son, Shakur Bumpess, then fourteen, also witnessed the attack. Both Ms. Bumpess and her son saw the assailant attacking the victim before entering the driver's side door of a white car. Police later showed Mr. Bumpess a family photograph depicting Appellant, but he failed to identify Appellant as the person he saw assaulting the victim. Mr. Bumpess, nonetheless, subsequently identified Appellant at trial. A third neighbor, who could not conclusively identify Appellant, witnessed the attack and told police that the assailant entered the driver side door of a vehicle before fleeing.
Upon re-entering his car, Appellant informed Dingler that Mr. Gabrinidis was " not going to bother my sister again." N.T., 12/1/09, at 229. Appellant then drove back to Dingler's residence. Prior to going to bed, Dingler observed Appellant scrubbing his pants and hands in a bathroom. Police arrived on the scene of the attack and found Mr. Gabrinidis bleeding from his chest. Mr. Gabrinidis died as a result of multiple stab wounds. One stab wound punctured his heart and another his liver. According to the medical examiner, either injury could have caused his death.
A jury found Appellant guilty of first-degree murder and possession of an instrument of crime (" PIC" ) on December 7, 2009. On that same date, the court sentenced Appellant to life imprisonment without parole for the murder charge and a concurrent term of imprisonment of two and one-half to five years for the PIC count. Appellant did not file a post-sentence motion, but he did file a pro se notice of appeal. The court appointed counsel, and this Court affirmed. Commonwealth v. Pander, 24 A.3d 454 (Pa.Super. 2011) (unpublished memorandum). Appellant did not seek a petition for allowance of appeal.
However, Appellant timely filed the underlying pro se PCRA petition in this matter, which was docketed on May 23, 2011. Thereafter, he submitted an amended pro se petition on July 13, 2011. The PCRA court appointed counsel. Counsel filed an amended petition on January 20, 2012. The Commonwealth filed a response on August 7, 2012, seeking dismissal. Appellant responded to that motion on August 13, 2012. The PCRA court issued a notice of dismissal pursuant to Pa.R.Crim.P. 907 on November 19, 2012. Appellant did not file a response to that notice, and the PCRA court entered its final order on December 17, 2012. This timely appeal ensued.
The PCRA court directed Appellant to file and serve a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied, and the court authored its opinion in support of its order. A divided panel of this Court, with this author dissenting, affirmed in part and reversed in part, and remanded for additional proceedings. Both parties sought en banc review. This Court granted
the Commonwealth's request. The matter is now ready for our consideration.
Appellant presents the following issues for our review.
I. Is the appellant entitled to post-conviction relief since he was rendered ineffective assistance of trial counsel and appellate counsel?
A. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of appellate counsel for failing to raise in the direct appeal the issue of the trial court's refusal to remove juror no. 7 and substitute an alternate juror?
B. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of appellate counsel for failing to raise in the direct appeal the issue of the trial court's denial of the appellant's motion for a mistrial following a question by the prosecutor suggesting to the jury that the appellant had a burden to produce evidence?
C. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of trial counsel for failing to request the trial court for a Kloiber instruction as to Commonwealth witness Shakur Bumpess?
D. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of trial counsel for failing to present evidence and argument to prove that someone other than the appellant committed the murder?
E. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of trial counsel for failing to interview and present the testimony of Philip DeLuca, Eleftheria Gabranidias, [sic] Rosemarie Pander and Charlene Pander as to the contentious relationship Brian Dingler had with the victim and that Georgianna Pander would instigate fights between the victim and Dingler?
F. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of trial counsel for failing to request the Commonwealth to test or make arrangements for the testing of the blood found in the appellant's car?
Appellant's brief at 4-5.
Our review in PCRA matters is guided by the following principles. We consider the record " in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Henkel, 2014 PA Super 75, 90 A.3d 16, 20 (Pa.Super. 2014) ( en banc ). This review is limited to the evidence of record and the factual findings of the PCRA court. Id. We afford " great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record." Id. Accordingly, as long as a PCRA court's ruling is free of legal error and is supported by record evidence, we will not disturb its ruling. Id. Nonetheless, where the issue pertains to a question of law, " our standard of review is de novo and our scope of review is plenary." Id.
Each of Appellant's claims implicates the effectiveness of counsel. We comprehensively outlined the law regarding such claims in Commonwealth v. Stewart, 2013 PA Super. 317, 84 A.3d 701 (Pa.Super. 2013) ( en banc ). Therein, we set forth:
" To plead and prove ineffective assistance of counsel a petitioner must establish: (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." Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (2011). Where the petitioner " fails to plead or meet any elements of the above-cited test, his claim must fail." Commonwealth v. Burkett, 2010 PA Super. 182, 5 A.3d 1260, 1272 (Pa.Super. 2010).
A claim has arguable merit where the factual averments, if accurate, could establish cause for relief. See Commonwealth v. Jones, 583 Pa. 130, 876 A.2d 380, 385 (2005) (" if a petitioner raises allegations, which, even if accepted as true, do not establish the underlying claim ..., he or she will have failed to establish the arguable merit prong related to the claim" ). Whether the " facts rise to the level of arguable merit is a legal determination." Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 304 n. 14 (2005).
The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874 (2010). Counsel's decisions will be considered reasonable if they effectuated his client's interests. Commonwealth v. Miller, 605 Pa. 1, 987 A.2d 638 (2009). We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken. Id. at 653.
" Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 797 (2008). A reasonable probability 'is a probability sufficient to undermine confidence in the outcome.' Commonwealth v. Rathfon, 2006 PA Super. 106, 899 A.2d 365, 370 (Pa.Super. 2006)." Burkett, supra at 1272; Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Stewart, supra at 706-707.
Appellant's initial claim is that appellate counsel was ineffective for failing to raise on appeal a preserved challenge to the continuation of juror number seven sitting on the jury after she became upset over viewing a photograph of the deceased. Specifically, during the testimony of a medical examiner, juror number seven required a break after observing pictures of the victim. She informed the trial court that the photographs reminded her of her own husband, who had died the prior year, and asserted that the photographs were too graphic. The court inquired whether she could remain impartial, and notwithstanding her emotional reaction, she twice indicated that she could. The trial court directed that no additional photographs be shown. Trial counsel asked that the court seat an alternate juror, but the court denied that request. Appellate counsel, who was not trial counsel, did not raise this issue on direct appeal.
Relying on case law discussing juror challenges for cause, Appellant contends that, since the juror became so upset over viewing the photographs that she had to exit the courtroom, she should have been removed. In his view, prejudice is to be presumed based on the juror's reaction to the photographic evidence and because she was still mourning the loss of her husband.
The Commonwealth responds that because the juror stated that she could be fair and impartial, the trial court did not err. It maintains that appellate counsel could not be ineffective for failing to present this issue on direct appeal. The PCRA court set forth that the juror did not discuss the photographs with the other jurors
after she became upset, provided that she could remain fair and impartial, and was questioned by trial counsel. Accordingly, it reasoned that the juror was not unable or disqualified from performing her duty, see Pa.R.Crim.P. 645, and appellate counsel could not be ineffective for declining to pursue the issue.
Recently, in Commonwealth v. Hale, 2014 PA Super 19, 85 A.3d 570 (Pa.Super. 2014) allowance of appeal granted on other ground,
__A.3d__, (Pa. 2014) (filed July 2, 2014), this Court analyzed cases discussing the law regarding the dismissal of jurors for cause. Therein, we noted that Pennsylvania courts have distinguished between situations where a juror is presumed biased and cannot be rehabilitated by questioning from the court, and those jurors who through questioning indicate that they can be fair and impartial. While Hale and the cases discussed therein involved juror challenges prior to trial, we find the discussion therein apt in light of Appellant's contention that the juror should have been presumed prejudiced.
The Hale Court quoted Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (Pa.Super. 1972), which set forth that
challenges for cause should be granted: (1) when the potential juror has such a close relationship, be it familial, financial or situational, with parties, counsel, victims, or witnesses, that the court will presume the likelihood of prejudice; and (2) when the potential juror's likelihood of prejudice is exhibited by his conduct and answers to questions at [v]oir dire.
Colon, supra at 327 (footnote omitted).
In the first situation, our standard of review has been labeled by this Court as ordinary. Colon, supra at 327-328 (" In the former situation, the determination is practically one of law and as such is subject to ordinary review." ); but see Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (Pa. 1977) (trial court's decision to discharge juror who was the sister of a defense witness evaluated under abuse of discretion standard); Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 332-333 (Pa. 2011) (" A trial court's decision regarding whether to disqualify a juror for cause is within its sound discretion and will not be reversed in the absence of a palpable abuse of discretion." ). It is apparent that what this Court has meant by indicating that our standard of review is ordinary is that, as a matter of law, it is error to allow a juror to sit and take part in final deliberations when he or she has a close relationship to certain interested individuals involved in the case. It is nonetheless clear that where the relationship between the juror and a party, counsel, victim, or witness is not a close relationship, we evaluate a trial judge's decision to remove or not remove the juror under an abuse of discretion standard. Colon, supra; see also Commonwealth v. Johnson, 299 Pa.Super. 172, 445 A.2d 509, 512 (Pa.Super. 1982); Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 413 (Pa. 2011).
Instantly, the juror's conduct is at issue in determining potential prejudice. Accordingly, we decline to view the juror as per se prejudiced. Indeed, we do not view becoming upset over a photograph of a murder victim as indicating prejudice. That the juror was disturbed by pictures of the victim because it brought back memories of her recently deceased husband does not alone indicate an inability to consider the evidence impartially. Here,
had appellate counsel raised the issue on direct appeal, we would have reviewed the issue under our abuse of discretion standard. In this respect, where the trial court was satisfied by the juror's response that he or she could remain fair and the trial court has had the opportunity to view the juror in question, we do not lightly reconsider its decision. Since the juror repeatedly stated that she could remain fair and impartial and was questioned by trial counsel and the court, appellate counsel was not ineffective in not raising this issue on direct appeal.
Appellant's second challenge is to appellate counsel's failure to argue that the trial court erred in denying a motion for a mistrial after the prosecutor asked a detective if the defense could have tested evidence to determine if it was blood. In this regard, police, pursuant to a warrant, seized and searched Appellant's car. As part of this process, photographs were taken. Police did not observe any blood in or on the vehicle, and remarked that there was a small stain that appeared to be from ketchup or sauce on the passenger seat. After police processed the vehicle, they returned it on the same day to Appellant's mother. Six days later, a defense investigator took pictures of the car. One picture contained what appeared to be blood on the inside passenger door. The investigator was deceased at the time of trial.
During direct examination of Detective David Baker, the Commonwealth asked about the respective stains. ...