Opinion
J-S09042-18 No. 1160 MDA 2017
10-16-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. JASON C. SHAUF Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 23, 2017
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000007-2013 BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Jason C. Shauf, appeals from the order entered in the Franklin County Court of Common Pleas, denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its opinions, the PCRA court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises the following issues for our review:
(1) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS APPELLANT'S STATEMENT TO THE POLICE ON THE BASIS THAT
APPELLANT DID NOT MAKE A KNOWING AND INTELLIGENT WAIVER OF HIS MIRANDA RIGHTS?
(2) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS APPELLANT'S STATEMENT TO THE POLICE ON THE BASIS THAT APPELLANT HAD BEEN ARRESTED WITHOUT PROBABLE CAUSE AT THE TIME THE STATEMENT WAS MADE?
(3) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS THE SEARCH WARRANT FOR APPELLANT'S HOME AND VEHICLE ON THE BASIS THAT (1) THERE WAS NO NEXUS BETWEEN THE HOMICIDE THE POLICE WERE INVESTIGATING AND THE PLACES TO BE SEARCHED AND (2) IT FAILED TO DISCLOSE FACTS BEARING ON THE UNRELIABILITY OF THE IDENTIFICATION OF APPELLANT?
(4) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF PRE-TRIAL COUNSEL WHERE PRE-TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS A WITNESS IDENTIFICATION THAT WAS BASED ON AN OVERLY SUGGESTIVE PHOTO ARRAY?
(5) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF A VIOLATION OF HIS RIGHT TO TRIAL BY AN IMPARTIAL JURY UNDER BOTH THE UNITED STATES AND PENNSYLVANIA CONSTITUTIONS WHERE JUROR #2 WAS PRESUMED BIASED AND THEREFORE THE JURY WAS NOT IMPARTIAL?
(6) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO REQUEST THAT A BIASED JUROR BE STRICKEN FROM THE
JURY FOR CAUSE?
(7) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO OBJECT TO IMPROPER CHARACTER TESTIMONY DESCRIBING APPELLANT AS VIOLENT?
(8) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE TRIAL COUNSEL INTENTIONALLY ELICITED TESTIMONY SUGGESTING THAT APPELLANT HAD A PROPENSITY FOR VIOLENCE, INCLUDING TESTIMONY THAT APPELLANT HAD A PROTECTION FROM ABUSE ORDER ENTERED AGAINST HIM WHERE NO SUCH ORDER EXISTED?
(9) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO OBJECT TO IRRELEVANT AND INADMISSIBLE TESTIMONY ABOUT APPELLANT'S PAST DRUG USE?
(10) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO OBJECT TO THE ADMISSION OF PHOTOGRAPHS OF THE HOMICIDE VICTIM WHILE HE WAS STILL LIVING AND THE USE OF THOSE PHOTOGRAPHS IN THE COMMONWEALTH'S CLOSING ARGUMENT WHERE THE PHOTOGRAPHS WERE NOT RELEVANT AND INTRODUCED FOR THE PURPOSE OF ENGENDERING SYMPATHY FOR THE VICTIM?
(11) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO OBJECT TO VICTIM-IMPACT TESTIMONY DURING THE GUILT PHASE OF APPELLANT'S TRIAL?
(12) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO OBJECT TO TESTIMONY FROM MULTIPLE POLICE DETECTIVES OFFERING A PERSONAL OPINION AS TO THE
TRUTHFULNESS AND VERACITY OF APPELLANT'S STATEMENT TO POLICE?(Appellant's Brief at 4-6).
(13) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO OBJECT TO NUMEROUS HEARSAY STATEMENTS THROUGHOUT THE TRIAL, INCLUDING AN OUT-OF-COURT IDENTIFICATION OF APPELLANT BY AN INDIVIDUAL WHO DID NOT IDENTIFY APPELLANT AT TRIAL?
(14) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHERE TRIAL COUNSEL FAILED TO OBJECT TO MULTIPLE STATEMENTS IN THE DISTRICT ATTORNEY'S CLOSING ARGUMENT DESIGNED TO APPEAL TO THE EMOTIONS OF THE JURY RATHER THAN SUGGESTING A DISPASSIONATE REVIEW OF THE FACTS OF THE CASE?
(15) WHETHER THE PCRA COURT ERRED BY DENYING APPELLANT'S PCRA CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WHERE THE PERFORMANCE OF PRE-TRIAL COUNSEL AND TRIAL COUNSEL, WHEN VIEWED IN TOTO, INCLUDING THE NUMBER OF ERRORS OR FAILURES TO ACT, PREJUDICED APPELLANT?
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
For purposes of disposition, we have re-ordered some of Appellant's issues.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Carol L. Van Horn, we conclude Appellant's issues merit no relief. The PCRA court opinions comprehensively discuss and properly dispose of the questions presented. ( See Opinion in Support of Order Denying PCRA Relief, filed June 23, 2017, at 9-70) (finding: (1) (pp. 12-16) pre-trial counsel testified Appellant's statement to police was more helpful than harmful; if Appellant decided not to testify at trial, counsel wanted to be able to produce statement so jury could hear Appellant's version of events; other evidence besides Appellant's statement placed Appellant at crime scene; Appellant's statement also showed his cooperation with police; counsel had reasonable basis for his actions; (2) (pp. 16-20) one victim/witness identified Appellant as perpetrator and someone that victim/witness had seen before; other victims/witnesses gave physical descriptions of one of perpetrators, which matched Appellant's characteristics; police had probable cause to arrest Appellant, so his claim lacks arguable merit; (3) (pp. 20-25) search warrant indicated that one of victims/witnesses identified Appellant as perpetrator; search warrant also stated Appellant's neighbor reported seeing Appellant and his cohort at Appellant's residence on day after murder; information contained in search warrant created sufficient nexus between homicide and places to be searched; Appellant's claim lacks arguable merit; (4) (pp. 25-28) police showed victim/witness, who ultimately identified Appellant, two sets of photo arrays; victim/witness did not identify Appellant in first photo array even though Appellant was in that picture; later on same day, police showed witness second photo array containing more recent picture of Appellant, and victim/witness was able to identify Appellant as one of perpetrators; pre-trial counsel testified he could not even identify Appellant from first photo array because photo in that spread did not have clear likeness to Appellant; in any event, counsel said he did not plan to contest Appellant's presence at scene, as part of trial strategy; photo array was not unduly suggestive, and Appellant's claim lacks arguable merit; (5-6) (pp. 28-31; 68-70) prior to opening arguments, juror #2 informed court she remembered Appellant because she had hired him for roofing job that Appellant did not complete; following questioning from court, juror confirmed she "harbor[ed] no ill feelings" toward Appellant and could be fair and impartial; Appellant failed to show that removal of juror #2 was constitutionally required, where juror confirmed she could be fair and impartial; Appellant's related ineffectiveness claim lacks arguable merit; (7) (pp. 31-34) through trial counsel's questioning of Appellant's former girlfriend on cross-examination about whether she knew Appellant to have guns, defense counsel opened door for Commonwealth to pursue on re-direct questions related to Appellant's character/propensity for violence; thus, trial counsel was not ineffective for failing to object to Commonwealth's question on re-direct; moreover, trial counsel testified that part of trial strategy was to show Appellant was known to use his fists in altercations, not guns; counsel had reasonable basis for not objecting to Commonwealth's inquiry on re-direct; (8) (pp. 34-36) at PCRA hearing, trial counsel explained it was important to offer jury reason for why Appellant parked his truck away from residence where murder took place; counsel elicited testimony that Appellant did not park his vehicle on that street because protection from abuse ("PFA") order precluded Appellant from parking there; apparently, PFA order did not exist; nevertheless, counsel had reasonable basis for his trial strategy; (9) (pp. 37-40) trial counsel testified he did not object to testimony about Appellant's drug use because it was not significant enough to warrant objection, counsel generally declines to object to matters which do not harm defense trial strategy, and incessant objections draw more attention to subject of objection; counsel had reasonable basis for his actions; (10) (pp. 40-45) Commonwealth presented substantial evidence of Appellant's guilt, and Appellant cannot show prejudice from counsel's failure to object to pictures of murder Victim presented at trial; (11) (pp. 46-52) Appellant fails to demonstrate that challenged testimony constitutes "victim impact testimony"; moreover, counsel testified that defense strategy was Appellant's cohort killed Victim, and to interrupt flow of trial to object during testimony about Victim would not have aided Appellant's trial strategy; further, Appellant makes only boilerplate prejudice allegations regarding this ineffectiveness claim, which do not afford him relief; (12) (pp. 52-58) Commonwealth elicited testimony concerning two detectives' perceptions of Appellant's credibility, which was improper; nevertheless, detectives' testimony focused on investigative process and challenged testimony consists of fleeting statements in context of eight-day trial; Appellant cannot show prejudice; (13) (pp. 58-63) challenged statements were not offered for truth of matter asserted but to explain detective's investigation process; Appellant's ineffectiveness claim lacks arguable merit; (14) (pp. 63-68) prosecutor's closing argument did not exceed passionate rhetoric; moreover, trial counsel testified he did not object because court instructs jury that arguments by counsel are not evidence, and jurors' recollection of facts/evidence controls; counsel had reasonable basis for his actions). ( See Rule 1925(a) Opinion, filed August 22, 2017, at 10-12) (finding: (15) given PCRA court's disposition of Appellant's individual ineffectiveness of counsel claims, Appellant's bald averment of "cumulative prejudice" does not merit relief). Accordingly, we affirm on the basis of the PCRA court's opinions.
Appellant now complains trial counsel was ineffective for "opening the door" to the line of questioning about guns. Nevertheless, Appellant did not specify this claim in his PCRA petition, so it is waived. See Commonwealth v. Washington , 592 Pa. 698, 927 A.2d 586 (2007) (explaining general rule that any claim not raised in PCRA petition is waived on appeal).
Trial counsel testified that Appellant told him there was a PFA order in effect which had precluded him from parking on the street where the murder occurred.
We add to the court's recitation of the scope and standard of review that if the record supports a post-conviction court's credibility determination, it is binding on the appellate court. Commonwealth v. Dennis , 609 Pa. 442, 17 A.3d 297 (2011).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/16/2018
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