Opinion
J. S21032/18 No. 1495 WDA 2017
06-26-2018
COMMONWEALTH OF PENNSYLVANIA v. EDGAR CLINTON WILTROUT, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, October 3, 2017, in the Court of Common Pleas of Westmoreland County
Criminal Division at No. CP-65-CR-0002481-2008 BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Appellant, Edgar Clinton Wiltrout, appeals from the October 3, 2017 order entered by the Court of Common Pleas of Westmoreland County denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court set forth the following factual and procedural history:
Before the Court is [appellant's] counseled and amended PCRA petition, which was timely filed on March 18, 2015.[Footnote 1] The [PCRA c]ourt conducted hearings on the PCRA petition on January 19 and March 20, 2017. . . .
[Footnote 1] [Appellant's] initial pro se PCRA petition, docketed on January 30, 2012, contains a certification stating it was mailed from SCI Greensburg on December 21, 2011. Although his initial PCRA petition was docketed beyond the statutory one year time limitation,
42 Pa.C.S. § 9545(b)(1), his petition is timely given the certificate of service of December 21, 2011 and the prisoner mailbox rule. Commonwealth v. Plummer , 798 A.2d 777 (Pa.Super. [2011]), appeal denied , 813 A.2d 840 [] ([Pa.] 2002) (date of delivery of PCRA petition by defendant to proper prison authority or prison mailbox is considered the date of filing of the petition). The Commonwealth concedes timeliness.
Following jury trial before the Honorable Richard E. McCormick, Jr. in which he was represented by counsel, Attorney Alan Roth, [appellant] was convicted on five counts relating to an arson that took place on February 23, 2008, at the Hollow Tavern in Unity Township, Westmoreland County: Count 1, Arson-danger of death or bodily injury; Count 2, Arson-intent to destroy an unoccupied building; Count 3, burglary; Count 4, risking a catastrophe; and Count 6, recklessly endangering another person.[Footnote 2] On May 1, 2009, Judge McCormick sentenced [appellant] to terms of imprisonment of six to 20 years at Count 1, two to four years, consecutive, at Count 3, and two to four years, consecutive to sentences imposed on the other two counts, at Count 4; convictions at Counts 2 and 6 merged and no further sentence was added; and Count 5 had been dismissed by the Commonwealth. (The aggregate sentence was, therefore, ten to 28 years of incarceration.)
[Footnote 2] The Counts were predicated upon, respectively, the following provisions of the Crimes Code: 18 Pa.C.S. § 3301(a)(1)(i); 18 Pa. C.S. § 3301(c)(1); 18 Pa.C.S. § 3502(a); 18 Pa.C.S. § 3302(b); and 18 Pa.C.S. § 2705.
The Pennsylvania Superior Court affirmed [appellant's] conviction and judgment of sentence on June 1, 2010, and his Petition for Allowance of
Appeal to the Pennsylvania Supreme Court was denied by that Court on October 10, 201[0].[] For purposes of the PCRA, [appellant's] judgment became final on January 18, 201[1], with the expiration of the 90 day time period for seeking certiorari review by the United States Supreme Court. 42 Pa.C.S. § 9545(b)(3); Commonwealth v. Fairiror , 809 A.2d 396 (Pa.Super. 2002), rearg. denied , appeal denied [,] 827 A.2d 429 (Pa. 2003) (one-year period to file under PCRA began to run 90 days after state supreme court denied petition for allowance of appeal, where petitioner failed to seek review of conviction by United States Supreme Court).
[Appellant] filed an initial pro se PCRA petition which was docketed on January 30, 2012, and a pro se Amended PCRA petition thereafter, and requested counsel be appointed. The Honorable Debra A. Pezze granted the motion and appointed current counsel, James M. Fox, [Esq.,] to represent petitioner, and directed counsel to file an amended motion for PCRA relief. The Amended Motion for Post-Conviction Collateral Relief was filed on March 18, 2015. Evidentiary hearings were conducted on January 19, 2017 and March 20, 2017 and, at [the PCRA c]ourt's direction, the parties filed post hearing briefs.
The trial record discloses the following:
On Saturday, February 23, 2008 at approximately 11:15 p.m., persons traveling on Route 30 east, Unity Township, Westmoreland County noticed flames and smoke coming from the Hollow Tavern, called the 911 Emergency Management Center, and local fire departments responded to the blaze. Witnesses who passed the Hollow Tavern on the night of February 23, 2008, in addition to observing smoke or flames coming from the building, also observed a white van backed into the parking lot of
the Hollow Tavern some distance east of the building itself near a trailer. The white van was occupied by a white male. Two witnesses saw the van proceed out of the parking lot, without headlights lit, traveling west on the eastbound side of the roadway adjacent to Route 30 and crossing over the Loyalhanna Creek causeway to the westbound lanes of Route 30. Thereafter the van returned traveling on Route 30 eastbound. The van was identified as bearing a license plate with the following identification: YII7976 or YTT7976.
An investigation conducted by Fire Marshall Jacob E. Andolina, Jr. of the Pennsylvania State Police concluded that fires were intentionally set inside the Hollow Tavern on February 23, 2008.
Additional evidence showed that [appellant] had reported a white Chevy Astro van as stolen on January 17, 2008. The van bore a registration plate YTT7976 and was registered to Betty Jean Wiltrout. On February 16, 2008 [appellant] was seen operating a white Chevy Astro van bearing registration plate YTT7976 on Route 30 at approximately 3/4 of a mile east of the Hollow Tavern at 9:30 p.m.
Other evidence adduced by the Commonwealth demonstrated that, on February 23, 2008, the Hollow Tavern had been closed since January 2008 because of financial problems. Before the Hollow Tavern closed, [appellant] had threatened to blow up the Tavern because he had been denied entry into the Tavern to speak to the owner, Charles Santone. At that time, [appellant] appeared angry and stated that Santone owed him money. [Appellant] was also upset because Santone had dismissed [appellant's] girlfriend, Jerry Liming, as a Hollow Tavern employee.
Following the closing of the Hollow Tavern, Charles Santone reported to the police that a commemorative Rolling Rock bicycle had been mounted on the tavern wall, and it and other items
had been stolen in a burglary during the weekend of February 2-3, 2008.
Adam Jogun, the adult son of Jerri Liming, testified that police came to his home on April 25, 2008 with a search warrant for items stolen from the Hollow Tavern during the weekend of February 2-3, 2008. Jogun told investigators that one or two days after the Hollow Tavern fire, [appellant] brought a Rolling Rock bicycle identical to the one previously on display at the Hollow Tavern to his mother's home, and gave it to Jogun. Jogun was anxious about possessing this bike following the fire and told investigators that he had thrown it into a dumpster the day they came to execute the search warrant.
Following [appellant's] arrest, he was incarcerated at the Westmoreland County Prison. Errin Rose, a fellow inmate, had unsolicited conversations at the prison with [appellant], who, according to Rose, related the following: that he had set the fire at the Hollow Tavern in two locations; that he was advised by the father of a Pennsylvania State Trooper that investigators had made casts of tire tracks found at the crime scene; that [appellant] took his van to Campbell's Tire the day after the fire to have the tires changed; that the fire was set because [appellant's] girlfriend was fired from the Hollow Tavern and because of the debt owed to [appellant] by Santone; and that [appellant] drove from the premises of the Hollow Tavern on the night of the fire without turning on his headlights.[Footnote 3]
[Footnote 3] Prior to trial, [appellant] filed an omnibus pretrial motion which was heard on November 20, 2008. [Appellant] claimed that Errin Rose, a fellow inmate at the Westmoreland County Prison, obtained a statement from [appellant] while acting as an agent on behalf of the Commonwealth in violation of [appellant's] right to counsel. By opinion and order the motion was
denied on January 5, 2009 by the Honorable John E. Blahovec, P.J.
PCRA court opinion, 10/3/17 at 1-5 (citations to trial record omitted).
Rose's recitation of the conversation with [appellant] was largely consistent with compelling evidence presented to the jury through the testimony of several other witnesses, including that of Robert Campbell, owner of Campbell Tire Service, who replaced the tires on [appellant's] white van on February 25, 2008. Other witnesses testified that [appellant] told them that the State Police investigators had castings of the tire tracks found at the scene of the fire. Furthermore, [appellant's] own testimony corroborated much of Errin Rose's testimony, including that he had the white van's tires changed at Campbell Tire Service the day after the fire, and that he was aware that the investigators from the Pennsylvania State Police had made impressions of the tire tracks found at the scene of the fire.
See Commonwealth v. Wiltrout , 998 A.2d 1022 (Pa.Super. 2010) (unpublished memorandum), appeal denied , 8 A.3d 346 (Pa. 2010).
The PCRA court denied appellant's PCRA petition on October 3, 2017. On October 10, 2017, appellant filed a notice of appeal with this court. The PCRA court ordered appellant to file a concise statement of errors complained of an appeal pursuant to Pa.R.A.P. 1925(b), and appellant complied on November 6, 2017. In lieu of filing an opinion pursuant to Pa.R.A.P. 1925(a), the PCRA court refers to its order and opinion dated October 3, 2017.
Appellant raises the following issues for our review:
1. Whether the Court of Common Pleas erred in determining Attorney Roth was not ineffective for failing to file a Motion in Limine and/or object to evidence the Appellant burglarized
the Hollow Tavern and sold a stolen Rolling Rock bicycle to witness Adam Jogun?Appellant's brief at 2.
2. Whether the Court of Common Pleas erred in determining Attorney Roth was not ineffective for failing to interview Trooper Teko Angelicchio and Al Angelicchio, Jr. [(collectively, "the Angelicchios")] whose testimony would have contradicted that of witness Errin Rose?
PCRA petitions are subject to the following standard of review:
"[A]s a general proposition, we review a denial of PCRA relief to determine whether the findings of the PCRA court are supported by the record and free of legal error." Commonwealth v. Dennis , 17 A.3d 297, 301 (Pa. 2011) (citation omitted). A PCRA court's credibility findings are to be accorded great deference, and where supported by the record, such determinations are binding on a reviewing court. Id. at 305 (citations omitted). To obtain PCRA relief, appellant must plead and prove by a preponderance of the evidence: (1) his conviction or sentence resulted from or more of the errors enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his claims have not been previously litigated or waived, id. § 9543(a)(3); and (3) "the failure to litigate the issue prior to or during trial . . . or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel[,]" id. § 9543(a)(4). An issue in previously litigated if "the highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue[.]" Id. § 9544(a)(2). "[A]n issue is waived if [appellant] could have raised it but failed to do so before trial, at trial, . . . on appeal or in a prior state postconviction proceeding." Id. § 9544(b).Commonwealth v. Treiber , 121 A.3d 435, 444 (Pa. 2015).
Under the PCRA, an individual is eligible for post-conviction relief if the conviction was the result of "ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process, that no reliable adjudication of guilt or innocence could have taken place. 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering whether counsel was ineffective, we are governed by the following standard:
[C]ounsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him. Strickland v. Washington , 466 U.S. 668 (1984). This Court has described the Strickland standard as tripartite by dividing the performance element into two distinct components. Commonwealth v. Pierce , 527 A.2d 973, 975 (Pa. 1987). Accordingly, to prove counsel ineffective, the petitioner must demonstrate that (1) the underlying legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the petitioner was prejudiced by counsel's act or omission. Id. A claim of ineffectiveness will be denied if the petitioner's evidence fails to satisfy any one of these prongs.
Commonwealth v. Perzel , 116 A.3d 670, 671-672 (Pa.Super. 2015), order vacated on other grounds , 166 A.3d 1213 (Pa. 2017).
Commonwealth v. Busanet , 54 A.3d 34, 45 (Pa. 2012) (citations formatted). Furthermore, "[i]n accord with these well-established criteria for review, [an appellant] must set forth and individually discuss substantively each prong of the Pierce test." Commonwealth v. Fitzgerald , 979 A.2d 908, 910 (Pa.Super. 2009).
Appellant, in his first issue, argues that the PCRA court erred when it held that Attorney Roth's failure to file a motion in limine and/or object to evidence pertaining to a previous burglary at the Hollow Tavern did not constitute ineffective assistance of counsel. Both of these underlying legal issues were raised on direct review and were found to have been waived by a previous panel of this court due to trial counsel's failure to preserve the issues for direct appellate review. See Commonwealth v. Wiltrout , No. 991 WDA 2009, unpublished memorandum at *2-3 (Pa.Super. filed April 23, 2010).
The PCRA does not permit a petitioner to raise a claim that has been previously litigated. 42 Pa.C.S.A. § 9544(a)(2). Here, because appellant's first issue addresses claims that were considered waived for direct appeal, we may consider the claim on its merits because a "Sixth Amendment claim of ineffectiveness raises a distinct legal ground for purposes of state PCRA review under § 9544(a)(2)." Commonwealth v. Gwynn , 943 A.2d 940, 945 (Pa. 2008).
In the instant case, while this court found that the underlying legal issue before us today—whether the trial court erred in admitting evidence of a previous burglary at the Hollow Tavern—waived for the purposes of direct appeal, the court nevertheless found that evidence pertaining to the stolen bicycle was admissible pursuant to Pa.R.E. 402. See Wiltrout , No. 991 WDA 2009 at *3-6. Based on the panel's reasoning on direct appeal, we find that appellant's first issue lacks arguable merit. See Gwynn , 943 A.2d at 945, citing Commonwealth v. Collins , 888 A.2d 564, 573 (Pa. 2005) (stating that an ineffective assistance of counsel claim "may fail on the arguable merit or prejudice prong for the reasons discussed on direct appeal").
In his second issue, appellant contends that the PCRA court erred when it determined that Attorney Roth did not render ineffective assistance when he failed to interview the Angelicchios. (Appellant's brief at 8-11.) When considering whether counsel was ineffective for failing to investigate a potential witness, we are bound by the following standard:
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. Recently summarizing cases in Commonwealth v. Dennis , 950 A.2d 945 (Pa. 2008), [our supreme court] stated that:
These cases . . . arguably stand for the proposition that, at least where there is a limited amount of evidence of guilt, it is per se unreasonable not to attempt to investigate and interview known eyewitnesses in connection with defenses that hinge on the credibility of other witnesses. They do not stand, however, for the proposition that such an omission is per se prejudicial.
Id. at 960 (citing Perry , supra ; Commonwealth v. Weis , 606 A.2d 439, 442-443 (Pa. 1992); Commonwealth v. (Harold) Jones , 437 A.2d 958 (Pa. 1981); Commonwealth v. Mabie , 359 A.2d 369 (Pa. 1976)) (emphasis omitted). Indeed, such a per se failing as to performance, of course, does not make out a case of prejudice, or overall entitlement to Strickland relief.
When raising a failure to call a potential witness claim, the PCRA petitioner satisfies the performance and prejudice requirements of the Strickland test by establishing that:
(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was no prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Johnson , 966 A.2d 523, 535-536 (Pa. 2009).
Commonwealth v. Washington , 927 A.2d 586, 599 (Pa. 2007). To demonstrate Strickland prejudice, the PCRA petitioner "must show how the uncalled witnesses' testimony would have been beneficial under the circumstances of the case." Commonwealth v. Gibson , 951 A.2d 1110, 1134 (Pa. 2008); see also Commonwealth v. Chmiel , 889 A.2d 501, 546 (Pa. 2005) ("Trial counsel's failure to call a particular witness does not constitute ineffective assistance without some knowing that the absent witness' testimony would have been beneficial or helpful in establishing the asserted defense.").
As it pertains to the Angelicchios, the record reflects that both witnesses existed, were willing and available to testify at trial for the defense, and that Attorney Roth knew of their existence. We agree with the PCRA court, however, that appellant failed to establish that the absence of the Angelicchio brothers' testimony denied him a fair trial. Indeed, as the PCRA court noted,
Rose's testimony was corroborated, however, in most other respects through the testimony of other witnesses and of [appellant] himself . . . The one point on which the Angelicchios might have cast doubt on his testimony about what [appellant] had told him in prison, i.e. that he knew from the Angelicchios that the investigators had tire impressions from the scene of the crime, does not diminish in any way the testimony of several other witnesses, including [appellant], that he was aware the investigation had developed tire castings and had taken his van to have the tires replaced the day after the fire.PCRA court opinion, 10/3/17 at 12-13 (emphasis in original).
Whether [appellant] actually told Rose that he got that information from the Angelicchios is inconsequential in light of the other uncontradicted testimony that he knew Pennsylvania State Police had such tire castings and that the day after the fire, he had his tires changed. There was plenty of evidence of [appellant's] knowledge of the tire impressions made by Pennsylvania State Police admitted from other sources, including his own testimony that he knew about the tire impressions - from whatever source - and that he changed the van's tires the day after the fire, which itself is strong circumstantial evidence that he knew about the tire castings.
Accordingly, we find that appellant failed to establish the requisite prejudice element for his second ineffective assistance of counsel claim; thus, this claim must fail.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/26/2018