Commonwealth v. Krock

282 A.3d 1132

COMMONWEALTH of Pennsylvania

v.Sheldon KROCK, Appellant

No. 2044 EDA 2021

Superior Court of Pennsylvania.

Submitted July 25, 2022

Filed September 7, 2022

Alfred Stirba IV, Allentown, for appellant.

James B. Martin, District Attorney, Allentown, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.^*

OPINION BY LAZARUS, J.:

Sheldon Krock appeals from the order, entered in the Court of Common Pleas of Lehigh County, dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546. After careful review, we affirm.

The trial court summarized the facts of this tragic case as follows:

[O]n August 19, 2016, at approximately 11:40 P.M., Michael Johnson, Sr., a tractor trailer driver who hauls cement and makes daily trips to Keystone Cement located in Bath, Northampton County, Pennsylvania, was traveling westbound on Route 22. There was construction on the highway, and an associated right [-]lane closure that was posted on the roadway. [Commonwealth Exhibits 2, 35 (photographs of road signage); N.T. [Jury Trial], 6/19/2018, at 57]. Therefore, Mr. Johnson moved his tractor trailer to the left lane of travel. At that time, a red Chevrolet Cruz[e] sedan was in front of Mr. Johnson's tractor trailer. He witnessed a red Ford F-150, dual-cab pick-up truck and a couple of other vehicles pass him in the right lane of travel that was going to end as a result of the road work. Suddenly, the red Ford F-150 pick-up truck moved into the left lane of travel and struck the side of the 2014 red Chevrolet Cruz[e]. The red Ford F-150 pick-up truck consequently flipped over and pushed the Chevrolet Cruz[e] into the concrete wall barrier. C[ommonwealth] Ex. 39. The Ford F-150 pick-up truck rolled over several times and came to rest on [its] roof.

After the collision, Mr. Johnson heard children yelling from the red Ford F-150 pick-up truck, so he exited his tractor trailer and ran over to the rear of the pick-up truck to render assistance. There were three (3) children in the Ford F-150 pick-up truck, appearing to range in approximate age from two (2) to seven (7) years old. ... At approximately 11:40 P.M., Trooper Joseph Mitzak of the Pennsylvania State Police, Bethlehem Barracks, was requested to respond in full uniform and a marked police cruiser to this crash site on Route 22 westbound near the Fullerton Avenue exit, Hanover Township, Lehigh County, Pennsylvania. Upon arriving, Trooper Mitzak observed a chaotic scene. [Commonwealth Exhibits 1-35 (photographs)]. Specifically, there were four (4) vehicles involved in the crash, including a red Ford F-150 pick-up truck that was on its roof facing in a southern direction, a Chevrolet Cruz[e] occupied by William and Traci Fritz, a Mazda 3, and a Volvo. [Commonwealth Exhibits 40-45 (photographs showing damage to the F-150, where the roof collapsed, and to the Volvo S40); N.T. [Jury Trial], 6/19/2018, at 68-70.]. At the time that Trooper Mitzak arrived on scene, two (2) people remained inside the Ford F-150 pick-up truck: [[Krock], who was the] registered owner of the Ford F-150 pick-up truck[,] and a female, Renee Tenasse. [[Krock]] was trapped in the driver seat of the vehicle. In addition, three (3) young children were sitting on the berm of the highway near the guardrail. Trooper Mitzak engaged [[Krock]] in general conversation in an effort to keep him calm before the extrication process began. [Krock]] stated that he was the driver of the vehicle. Ultimately, [Krock] was extricated from the vehicle with the help of members of the Han-Le Company Fire and Rescue, the Bethlehem EMS, and the Pennsylvania State Police. Paramedic Jason Hadinger of the Bethlehem EMS transported [[Krock]] to the Lehigh Valley Hospital-Cedar Crest Campus for medical attention. When Paramedic Hadinger was tending to [[Krock]]’s medical care, he detected a strong odor of alcohol emanating from his person. Upon [Krock]’s arrival at the Lehigh Valley Hospital trauma unit, Michelle Greis, R.N., drew blood from [Krock] in accordance with hospital policy, as all trauma patients are subjected to a blood draw. [Krock]’s blood was drawn at 12:34 A.M. on August 20, 2016. [Commonwealth Exhibit 46 (blood alcohol and toxicology report - chain of custody)]. This blood draw is part of a kit in which nine (9) tubes of blood are drawn. The medical purpose for the blood draw is to determine if there is alcohol or controlled substances in a patient's system which could mask an injury. Two (2) of the nine (9) tubes were set aside in the event that blood was needed for legal purposes, and was not immediately tested.

Approximately two (2) to three (3) hours after the accident, at 2:40 A.M., Trooper Mitzak applied for and obtained a search warrant for [Krock]’s blood in order to obtain a blood alcohol content analysis. At 3:05 A.M. on August 20, 2016, a separate blood draw was performed at Lehigh Valley Hospital-Cedar Crest Campus. The results of this blood draw revealed a blood alcohol content of .06%. Trooper Mitzak was unaware that blood had previously been drawn from [Krock] by Michelle Greis, R.N.

Additionally, Trooper Mitzak had an opportunity to speak with [Krock] at Lehigh Valley Hospital-Cedar Crest Campus. At that time, Trooper Mitzak advised [Krock] that he was not in custody and that he did not have to speak with him. Nevertheless, [Krock] agreed to speak with Trooper Mitzak. [Krock] told Trooper Mitzak that he had hosted a barbecue at his house in Easton and he had consumed a few alcoholic beverages the evening in question. He also admitted to being the operator of the vehicle and he stated that two (2) of the passengers had an argument in the vehicle before the crash.

On September 8, 2016, Trooper Mitzak applied for and obtained a second search warrant for [Krock]’s blood that was drawn at 12:34 A.M. on August 20, 2016. [Krock]’s blood alcohol content at that time was .11%. [Commonwealth Exhibit 47 (laboratory analysis form for blood alcohol/controlled substance).]

Trooper William Hoogerhyde of the Pennsylvania State Police, Troop M, Fogelsville Barrack, an expert in the area of Accident Reconstruction, arrived on scene around 1:06 A.M. in order to perform an accident reconstruction. [Commonwealth Exhibit 36 (Trooper Hoogerhyde's curriculum vitae)]. Based on his analysis of the scene, as well as having performed a mechanical inspection of the vehicles involved, Trooper Hoogerhyde found that there was no defect in the Ford F-150 pick-up or red Chevrolet Cruz[e] that would have contributed to the collision. He opined that the crash occurred when the Ford F-150 pick-up truck moved into the left lane of travel and struck the red Chevrolet Cruz[e], pushing that vehicle into the concrete barrier. The Ford F-150 pick-up continued to move forward, hit the barrier, [ ] rolled on the right side, and flew up in the air, impacting the rear of the white Mazda 3. As a result of this impact, the white Mazda 3 struck the Volvo.

Trial Court Opinion, 8/28/18, at 4-9 (some formatting, footnotes omitted).¹

Krock was convicted,² by a jury, of eleven counts of recklessly endangering another person (REAP),³ three counts of endangering the welfare of a child (EWOC),⁴ and driving under the influence.⁵ Krock was sentenced to an aggregate sentence of 16-32 years’ incarceration. Krock filed post-sentence motions that were denied. He filed a timely direct appeal, raising, among other things, an issue regarding the sufficiency of the evidence as it related to his EWOC charge. Specifically, Krock challenged whether the Commonwealth presented sufficient evidence to support the finding that he "would [ha]ve been aware that the children were in circumstances that could threaten their physical well[ ]being." Appellant's Direct Appeal Brief, at 27, 30. On appeal, this Court found that Krock's claim amounted to a challenge regarding the mens rea element of EWOC—whether he "knowingly" endangered the welfare of a child. 18 Pa.C.S. § 4304(a)(1). However, in his Pa.R.A.P.1925(b) concise statement of errors complained of on appeal, Krock challenged a different element of the EWOC statute—whether "he was the guardian of, had control over the welfare of the children, or was supervising them so as to sustain a cha[r]ge of [EWOC]." Rule 1925(b) Statement, 10/1/18, at 2 ¶ 5. Thus, our Court found that Krock failed to preserve his sufficiency claim with regard to the mens rea element of the offense. Commonwealth v. Krock , 2668 EDA 2018, at 17 (Pa. Super. filed Aug. 6, 2019) (unpublished memorandum decision).

On August 10, 2020, Krock filed a timely pro se PCRA petition. Counsel was appointed and filed an amended petition raising the single issue of whether appellate counsel, Michael E. Brunnabend, Esquire, was ineffective for failing to preserve and litigate the proper sufficiency of the evidence claim with regard to Krock's EWOC conviction. On April 23, 2021, the trial court held a PCRA hearing at which Attorney Brunnabend testified. On June 16, 2021, the court denied Krock's petition, concluding that even if Krock's appellate counsel had pursued the issue on appeal, it would not have been meritorious and would not have resulted in him obtaining relief on appeal. Trial Court Opinion, 6/16/21, at 13.

Krock filed this timely appeal, presenting the following issue for our consideration: "Whether the PCRA [c]ourt erred when it denied [Krock's] [a]mended PCRA [p]etition, seeking post-conviction relief due to ineffective assistance of [a]ppellate [c]ounsel, based on its determination that [Krock] failed to establish the prejudice prong of the ineffective assistance of counsel test and without reaching the other factors[.] Appellant's Brief, at 4.

"Our standard of review from the grant or denial of post-conviction relief is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Ousley , 21 A.3d 1238, 1242...