Opinion
J-S30035-17 No. 1642 MDA 2016
06-16-2017
COMMONWEALTH OF PENNSYLVANIA v. STEPHEN MICHAEL HARMER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order September 1, 2016 in the Court of Common Pleas of Lancaster County, Criminal Division, No(s): CP-36-CR-0004640-2012 BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Stephen Michael Harmer ("Harmer") appeals from the Order dismissing his first Petition filed pursuant to the Post Conviction Relief Act. We affirm.
See 42 Pa.C.S.A. §§ 9541-9546.
In its Opinion, the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 9/1/16, at 1-7. Harmer filed a timely Notice of Appeal.
On appeal, Harmer presents the following issues for our review:
A. Whether the PCRA court's determination is supported in the record and free from legal error when trial counsel was ineffective in failing to request standard jury instruction (criminal) 4.01, when [Harmer's] co-defendant testified at trial as the only Commonwealth witness at the scene of the crime?
B. Whether the PCRA court's determination is supported in the record and free from legal error when trial counsel was ineffective in failing to require the Commonwealth to file a
[Pa.R.E.] 404(b) motion before trial[;] trial counsel did not file a motion in limine seeking to bar [Harmer's] prior and subsequent bad acts from being presented to the jury[;] and failing to seek a mistrial and/or curative instruction when the Commonwealth introduced the prior and subsequent bad acts testimony of [Harmer's] drug activity during trial?Brief for Appellant at 1-2 (capitalization omitted).
C. Whether the PCRA court's determination is supported in the record and free from legal error when the cumulative effect of prejudice from trial counsel's ineffective assistance of counsel in the form of failure to request standard jury instruction (criminal) 4.01[;] failure to require the Commonwealth to file [a] [Pa.R.E.] 404(b) motion before trial[;] failure to file [a] motion in limine seeking to bar prior and subsequent bad acts[;] and/or failing to seek a mistrial or curative instruction undermined the truth[-]determining process?
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 grounds if the record supports it. 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. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
In his first issue, Harmer contends that his trial counsel, Christopher P. Lyden, Esquire ("Attorney Lyden"), was ineffective for failing to "request the accomplice or corrupt and polluted jury instruction found at 4.01 in the Pennsylvania Standard Jury Instruction (Criminal)" after the close of evidence at trial. Brief for Appellant at 19. Harmer asserts that Attorney Lyden admitted that Cody Wunder ("Cody") was Harmer's accomplice, and that there were components of Cody's testimony that supported a second-degree murder conviction for Harmer. Id. at 21-22. Harmer claims that Attorney Lyden also admitted that Cody was the only Commonwealth trial witness who had been at the crime scene at the time of the homicide. Id. at 22. Harmer points to Attorney Lyden's proffered reasons for not requesting an instruction, namely, that (1) Cody and his brother, Kyle Wunder, did something completely separate from the other crimes in committing second-degree murder; (2) there was overwhelming evidence of Harmer's involvement as an accomplice to the conspiracy to commit burglary; and (3) Harmer gave a detailed statement to police describing his involvement. Id. at 21. Harmer argues that these reasons do not provide a reasonable basis for Attorney Lyden's inaction, and that he suffered prejudice as a result of Attorney Lyden's failure to request an accomplice instruction regarding Cody's testimony. Id. at 22-23.
In its Opinion, the PCRA court addressed Harmer's first issue, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Opinion, 9/1/16, at 7-9. We agree with the reasoning of the PCRA court, and affirm on this basis as to Harmer's first issue. See id.
In his second issue, Harmer contends that, in response to a question asked by the prosecutor, a Commonwealth witness, Steven Marsch, testified that he had used heroin with Harmer. Brief for Appellant at 26. Harmer asserts that other "Commonwealth witnesses repeatedly, in their respective testimony, stated that [Harmer] sold marijuana and [Harmer] ingested marijuana." Id. at 27. Harmer claims that Attorney Lyden failed to object to this testimony, file a motion in limine, seek a curative instruction, raise an issue regarding the Commonwealth's failure to file a Pa.R.E. 404(b) motion regarding such evidence, or request a mistrial. Brief for Appellant at 26-27, 32. Harmer points to Attorney Lyden's explanation for his inaction, namely, that, because he was stipulating that Harmer was guilty of conspiring to commit robbery and burglary, the references to Harmer's drug activities would not add or detract very much from that characterization. Id. at 32. Harmer argues that this reason did not provide Attorney Lyden with reasonable basis for not filing a motion in limine or requiring the Commonwealth to file a Rule 404(b) motion. Id. at 29-10. Harmer contends that he suffered prejudice as a result of Attorney Lyden's inaction, because the testimony regarding his prior drug activities "demonstrated to the jury that [he] had a propensity for committing crimes[,] and that he was a person of bad character ...." Id. at 32-33.
Rule 404(b) pertains to a person's crimes, wrongs and other acts, and provides, in relevant part, that "[i]n a criminal case, the prosecutor must provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence the prosecutor intends to introduce at trial." Pa.R.E. 404(b)(3). --------
In its Opinion, the PCRA court addressed Harmer's second issue, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Opinion, 9/1/16, at 9-10. We agree with the reasoning of the PCRA court, and affirm on this basis as to Harmer's second issue. See id.
In his third issue, Harmer contends that, if his first and second claims regarding Attorney Lyden's ineffectiveness fail for lack of prejudice, then he is nevertheless entitled to relief based on the cumulative effect of Attorney Lyden's errors. Brief for Appellant to 33-34. Harmer asserts that the cumulative effect of Attorney Lyden's "inaction created the reasonable probability that the outcome [at] trial would have been different ...." Id. at 34-35.
In its Opinion, the PCRA court addressed Harmer's third issue, set forth the relevant law, and determined that the issue lacks merit. See PCRA Court Opinion, 9/1/16, at 14-15. We agree with the reasoning of the PCRA court, and affirm on this basis as to Harmer's third issue. See id.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/16/2017
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