Opinion
J-S24030-20 No. 134 EDA 2020
08-11-2020
COMMONWEALTH OF PENNSYLVANIA Appellee v. PATRICK SCOTT MONGEAU Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered December 19, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No.: CP-09-CR-0006068-2014 BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Patrick Scott Mongeau appeals from the December 19, 2019 order of the Court of Common Pleas of Bucks County ("PCRA court"), which denied his petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history of this case are undisputed. As recounted by a prior panel of this Court on direct appeal:
Kimberly Harvie-Kelly [(the "victim")], age 51 at the time of trial, resided in a single-family residence located at 85 Quaker Hill Road, in Middletown Township, Bucks County, with her four children, ages 17, 16, 13 and 9. [The victim] knew [Appellant] from middle school. In July 2012, [Appellant] contacted her through Facebook. One month later, [Appellant] called her from a bus depot in Philadelphia and told her that he did not have transportation and that he had nowhere to stay. [The victim] drove to Philadelphia, brought him back to her home and allowed
him to reside there. Subsequently, the two began a romantic relationship. The criminal offenses for which [Appellant] was tried and convicted began to occur when [the victim] terminated that relationship.
This case involves three distinct criminal episodes. The first criminal episode spanned a period of approximately eight months and formed the basis for the [Appellant's] stalking conviction. Between September of 2013 and June of 2014, [Appellant] engaged in a continuous course of conduct designed to place [the victim] in fear of bodily injury and/or to cause her substantial emotional distress. [Appellant] randomly and repeatedly appeared at the [victim's] residence uninvited and unannounced despite being told by [her], her oldest sons and police to stay away from their home and to refrain from contacting them. On one such occasion, [Appellant] climbed on to the roof of the home. On another, he circled the home knocking on all of the windows. When not appearing in person, [Appellant] attempted to communicate with [the victim] through e-mail, text messaging and Facebook. He subjected [the victim] to physical assaults, causing her to suffer nerve damage during one of those assaults. Finally, he threatened to take her life.
On January 28, 2014, [Appellant] left [the victim] a voicemail message in which he told her, "You are dead. No one can stop me now. Goodbye you whore." When he was contacted by the police about this death threat, [Appellant] admitted that he had made comments that he "probably shouldn't have." [Appellant's] intrusions into the lives of this family caused such fear and occurred so often that the family initiated what they called the "lockdown procedure" at the first sign of [Appellant's] potential presence. When the family was in "lockdown," the windows and doors of the residence were locked, no one was allowed in or out and everyone in the home kept a cellphone within reach.
[The victim] soon realized that her attempts to keep [Appellant] away from her and her children had failed. She also realized that police intervention was having a negative impact on [Appellant's] behavior. She testified that [Appellant] began to believe "he was untouchable" because, when the police were called to [the victim's] home, he was simply escorted off the property. She was, therefore, forced to change tactics. Rather than trying to terminate the unwanted contact, she tried to minimize [Appellant's] aggressive behavior by "keeping him calm." That
tactic also failed to curb [Appellant's] violent, aggressive and controlling behavior.
The second criminal episode occurred on June 1, 2014 at Penn Warner Park, a lakeside campground located in Falls Township, Bucks County, and formed the basis for [Appellant's] simple assault and harassment convictions. On that date, [Appellant] arrived at [the victim's] residence shortly after midnight looking for [the victim]. Her oldest son, M.C., told [Appellant] that [the victim] was not home but did not disclose that she and her boyfriend, Joseph Loomis, were staying at Penn Warner Park. M.C. heard [Appellant] comment, "She is probably at the lake with her new boyfriend." M.C. immediately called [the victim] and her boyfriend to warn them [Appellant] might be on his way. He also initiated "lockdown mode." M.C. stood watch until 3:00 a.m. to make sure [Appellant] did not return.
At approximately 1:00 a.m., [Appellant] arrived at Penn Warner Park, located the trailer where [the victim] and Mr. Loomis were staying and began banging on their door and yelling. [The victim] went outside to try to calm him down. As she was trying to speak with him, [Appellant] grabbed her, forcibly kissed her on the mouth and told her, "You have a week to fix this or we are dead." [The victim] asked [Appellant] why she had to die. He responded, "Because we are soul mates." [Appellant] then grabbed [the victim], one hand on the back of her neck, one hand on her chin, and twisted her head and neck. To avoid suffering serious injury, she did not resist the force being applied to her head and, as a result, was "flipped" to the ground. [The victim] testified that [Appellant] "goes for my neck like he is going to snap my neck. That's how he is going to . . . kill me." Mr. Loomis heard [the victim] cry out and ran to assist her. [Appellant] then fled the area. [The victim] sustained painful scratches and bruises to her arms and back during this incident.
The third criminal episode occurred that same date at [the victim's] residence and led to [Appellant's] arson, reckless burning and criminal mischief convictions. Between 3:00 a.m. and 7:00 am., [Appellant] returned to [the victim's] residence. He entered the shed on the property, retrieved a gas can and poured a trail of gasoline in the back yard, over a motorcycle parked beside the home and along the back wall of the residence. He ignited the gasoline with a match. The fire, while burning, blocked anyone from exiting the home through the sliding glass doors located at
the back of the residence. M.C., M.G., E.K. and W.K. were asleep in the house when [Appellant] started the fire.Commonwealth v. Mongeau , No. 3513 EDA 2015, unpublished memorandum, at 1 (Pa. Super. filed October 19, 2016) (citing Trial Court Opinion, 4/8/16, at 2-5) (record citations, unnecessary capitalizations and footnotes omitted). Following the jury trial, Appellant was convicted of arson endangering inhabited property, reckless burning endangering personal property, criminal mischief, stalking, simple assault, harassment, and four counts of recklessly endangering another person ("REAP"). On April 20, 2015, the trial court sentenced him to consecutive terms of five to ten years' imprisonment for arson, three-and-a-half to seven years for reckless burning, two-and-a-half to five years for stalking, one to two years for simple assault, and one to two years each REAP conviction. The court imposed upon Appellant an aggregate term of sixteen to thirty-two years' imprisonment. Following the filing of post-sentence motions, which the trial court denied, Appellant filed a direct appeal. As noted, a panel of this Court affirmed Appellant's judgment of sentence on October 19, 2016. Our Supreme Court denied Appellant's petition for allowance of appeal on April 11, 2017. See Commonwealth v. Mongeau , 168 A.3d 1251 (Pa. 2017).
18 Pa.C.S.A. §§ 3301(c)(2), 3301(d)(2), 3304(a)(1), 2709.1(a)(1), 2701(a)(1), 2709(a)(1) and 2705, respectively.
On August 7, 2017, Appellant pro se filed a PCRA petition, alleging, among other things, ineffective assistance of counsel claims. The PCRA court appointed counsel, who filed an amended petition. Following a hearing, the PCRA court denied Appellant relief on December 19, 2019. Appellant timely appealed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises a single issue for our review.
"In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination 'is supported by the record and free of legal error.'" Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014) (quoting Commonwealth v. Rainey , 928 A.2d 215, 223 (Pa. 2007)).
[I.] Did [Appellant] receive ineffective assistance of counsel when counsel on direct appeal failed to preserve and argue against the overruling of her objection to inadmissible hearsay?Appellant Brief at 3.
At the core, Appellant argues that, although his counsel timely lodged a hearsay objection at trial, she failed to pursue on direct appeal the overruling of that objection. Id. at 14. As a result, she rendered ineffective assistance on direct appeal.
Appellant does not identify the offending statements in his brief before us. We, however, are able to discern from the Commonwealth's brief and the trial court's Rule 1925(a) opinion that Appellant challenges his direct appeal counsel's failure to pursue on appeal two distinct trial objections. The first concerns the admission of Officer Thomas Lundquist's testimony relating to the victim's statements. The second relates to the recording of Mr. Loomis' 911 call that was played for the jury.
Our standard of review regarding evidentiary issues is well-settled.
The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. If in reaching a conclusion the trial court overrides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error.
When a petitioner asserts an ineffectiveness claim, he is entitled to relief if he pleads and proves that prior counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). "To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and prove by a preponderance of the evidence that (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for acting or failing to act; and (3) the petitioner suffered resulting prejudice." Commonwealth v. Reyes-Rodriguez , 111 A.3d 775, 780 (Pa. Super. 2015) (en banc). "A petitioner must prove all three factors of the " Pierce test," or the claim fails." Id. Put differently, "[t]he burden of proving ineffectiveness rests with Appellant." Commonwealth v. Chmiel , 889 A.2d 501, 540 (Pa. 2005).
Commonwealth v. Pierce , 527 A.2d 973 (Pa. 1987).
Instantly, Appellant is not entitled to relief. Despite his argument that his ineffectiveness claims meet the arguable merit prong of the Pierce test, his brief is bereft of any discussion or argument with respect to the reasonable basis and prejudice prongs. As we recently emphasized, "[a] petitioner must prove all three factors of the Pierce test, or the [ineffectiveness] claim fails. In addition, on appeal, a petitioner must adequately discuss all three factors of the Pierce test, or the appellate court will reject the claim." Reyes-Rodriguez , 111 A.3d at 780 (emphasis added) (citing Fears , 86 A.3d at 804)). Thus, given Appellant's failure to discuss the reasonable basis and prejudice prongs on appeal, we must reject his ineffectiveness claims.
Nonetheless, even if we were to review the merits of his ineffectiveness claim, we would conclude that he still is not entitled to relief. Indeed, after careful review of the record and the relevant case law, we conclude that the trial court accurately and thoroughly addressed the merits of Appellant's claim. See Trial Court Opinion, 2/24/20, at 5-13. The PCRA court found that the statements at issue did not implicate hearsay. The testimony of Officer Lundquist, was not offered for the truth of the matter asserted, "but rather to establish the consistency between the victim's account and her physical condition and to explain the steps Officer Lindquist took to investigate the complaint." Id. at 7. In other words, the purpose of the testimony was to explain Officer Lundquist's course of conduct in response to the reported assault on the victim. Id. Furthermore, regardless of whether the recording of the Mr. Loomis' 911 call was properly admitted under the present sense impression and/or excited utterance exceptions to the hearsay rule, any error was harmless, as the call was cumulative of other non-hearsay testimony. Id. at 9-11. We, therefore, agree with the PCRA court's conclusion that Appellant's ineffectiveness claim lacks arguable merit. Accordingly, we affirm the trial court's December 19, 2019 order denying Appellant's PCRA petition. We further direct that a copy of the trial court's February 24, 2020 opinion be attached to any future filings in this case.
"It is well established that certain out-of-court statements offered to explain the course of police conduct are admissible because they are offered not for the truth of the matters asserted but rather to show the information upon which the police acted." Commonwealth v. Trinidad , 96 A.3d 1031, 1037 (Pa. Super. 2014) (citing Commonwealth v. Weiss , 81 A.3d 767, 806 (Pa. 2013) (quoting Commonwealth v. Chmiel , 889 A.2d 501, 532 (Pa. 2005)). --------
Order affirmed.
President Judge Emeritus Bender joins the memorandum.
Judge Strassburger files a concurring memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/11/2020
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Commonwealth v. Glass , 50 A.3d 720, 724-25 (Pa. Super. 2012) (internal quotations and citations omitted).