Commonwealth v. Pander

100 A.3d 626

2014 PA Super 201

COMMONWEALTH of Pennsylvania, Appellee

v.Anthony D. PANDER, Appellant.

No. 3478 EDA 2012

Superior Court of Pennsylvania.

Argued Aug. 5, 2014.

Filed Sept. 17, 2014.

Mitchell S. Strutin, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN, OTT, WECHT, STABILE, and JENKINS, JJ.

Opinion

OPINION BY BOWES, J.:

Anthony Pander appeals from the order entered December 17, 2012, in which the court denied his first counseled petition for post-conviction relief filed pursuant to the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 –9546. We affirm.

This case involves the killing of Andreas Gabrinidis, Appellant's brother-in-law. Appellant, his sister Georgianna Pander,¹ and Georgianna's boyfriend, Brian Dingler, were celebrating New Year 2008 at Dingler's residence. Georgianna Pander informed Appellant that she was upset with the victim, causing Appellant to become extremely angry. As a result, Appellant exited the residence and entered the driver's seat of his car.² Dingler followed Appellant at the behest of his girlfriend and entered the front passenger seat of the vehicle in an attempt to calm Appellant down. However, Appellant proceeded to drive his car, with Dingler as his passenger, to Mr. Gabrinidis' home, which was fourteen miles away. Upon arriving at Mr. Gabrinidis' house, Appellant entered the home. The men began to argue and wrestle on Mr. Gabrinidis' enclosed porch. Mr. Gabrinidis attempted to flee, running down the street screaming for help and banging on his neighbors' doors. Appellant, however, continued his attack, knocking down Mr. Gabrinidis and assaulting him as he lay in the street.

Several neighbors of the victim, who were familiar with Appellant, witnessed the attack. Kimberly Bumpess heard screams from outside her window and observed Mr. Gabrinidis fleeing from his home. According to Ms. Bumpess, Mr. Gabrinidis ran to a neighbor's house screaming for assistance. Ms. Bumpess's son, Shakur Bumpess, then fourteen, also witnessed the attack. Both Ms. Bumpess and her son saw the assailant attacking the victim before entering the driver's side door of a white car. Police later showed Mr. Bumpess a family photograph depicting Appellant, but he failed to identify Appellant as the person he saw assaulting the victim. Mr. Bumpess, nonetheless, subsequently identified Appellant at trial. A third neighbor, who could not conclusively identify Appellant, witnessed the attack and told police that the assailant entered the driver side door of a vehicle before fleeing.

Upon re-entering his car, Appellant informed Dingler that Mr. Gabrinidis was “not going to bother my sister again.” N.T., 12/1/09, at 229. Appellant then drove back to Dingler's residence. Prior to going to bed, Dingler observed Appellant scrubbing his pants and hands in a bathroom. Police arrived on the scene of the attack and found Mr. Gabrinidis bleeding from his chest. Mr. Gabrinidis died as a result of multiple stab wounds. One stab woundpunctured his heart and another his liver. According to the medical examiner, either injury could have caused his death.

A jury found Appellant guilty of first-degree murder and possession of an instrument of crime (“PIC”) on December 7, 2009. On that same date, the court sentenced Appellant to life imprisonment without parole for the murder charge and a concurrent term of imprisonment of two and one-half to five years for the PIC count. Appellant did not file a post-sentence motion, but he did file a pro se notice of appeal. The court appointed counsel, and this Court affirmed. Commonwealth v. Pander, 24 A.3d 454 (Pa.Super.2011) (unpublished memorandum). Appellant did not seek a petition for allowance of appeal.

However, Appellant timely filed the underlying pro se PCRA petition in this matter, which was docketed on May 23, 2011. Thereafter, he submitted an amended pro se petition on July 13, 2011. The PCRA court appointed counsel. Counsel filed an amended petition on January 20, 2012. The Commonwealth filed a response on August 7, 2012, seeking dismissal. Appellant responded to that motion on August 13, 2012. The PCRA court issued a notice of dismissal pursuant to Pa.R.Crim.P. 907 on November 19, 2012. Appellant did not file a response to that notice, and the PCRA court entered its final order on December 17, 2012. This timely appeal ensued.

The PCRA court directed Appellant to file and serve a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied, and the court authored its opinion in support of its order. A divided panel of this Court, with this author dissenting, affirmed in part and reversed in part, and remanded for additional proceedings. Both parties sought en banc review. This Court granted the Commonwealth's request. The matter is now ready for our consideration.

Appellant presents the following issues for our review.

I. Is the appellant entitled to post-conviction relief since he was rendered ineffective assistance of trial counsel and appellate counsel?

A. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of appellate counsel for failing to raise in the direct appeal the issue of the trial court's refusal to remove juror no. 7 and substitute an alternate juror?

B. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of appellate counsel for failing to raise in the direct appeal the issue of the trial court's denial of the appellant's motion for a mistrial following a question by the prosecutor suggesting to the jury that the appellant had a burden to produce evidence?

C. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of trial counsel for failing to request the trial court for a Kloiber³ instruction as to Commonwealth witness Shakur Bumpess?

D. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of trial counsel for failing to present evidence and argument to prove that someone other than the appellant committed the murder?

E. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of trial counsel for failing to interview and present the testimony of Philip DeLuca, Eleftheria Gabranidias, [sic] Rosemarie Pander and Charlene Pander as to the contentious relationship Brian Dingler had with the victim and that Georgianna Pander would instigate fights between the victim and Dingler?

F. Is the appellant entitled to post-conviction relief as a result of the ineffectiveness of trial counsel for failing to request the Commonwealth to test or make arrangements for the testing of the blood found in the appellant's car?

Appellant's brief at 4–5.

Our review in PCRA matters is guided by the following principles. We consider the record “in the light most favorable to the prevailing party at the PCRA level.” Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super.2014) (en banc ). This review is limited to the evidence of record and the factual findings of the PCRA court. Id. We afford “great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record.” Id. Accordingly, as long as a PCRA court's ruling is free of legal error and is supported by record evidence, we will not disturb its ruling. Id. Nonetheless, where the issue pertains to a question of law, “our standard of review is de novo and our scope of review is plenary.” Id.

Each of Appellant's claims implicates the effectiveness of counsel. We comprehensively outlined the law regarding such claims in Commonwealth v. Stewart, 84 A.3d 701 (Pa.Super.2013) (en banc ). Therein, we set forth:

“To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act.” Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (2011). Where the petitioner “fails to plead or meet any elements of the above-cited test, his claim must fail.” Commonwealth v. Burkett, 5 A.3d 1260, 1272 (Pa.Super.2010).

A claim has arguable merit where the factual averments, if accurate, could establish cause for relief. See Commonwealth v. Jones, 583 Pa. 130, 876 A.2d 380, 385 (2005) (“if a petitioner raises allegations, which, even if accepted as true, do not establish the underlying claim ..., he or she will have failed to establish the arguable merit prong related to the claim”). Whether the “facts rise to the level of arguable merit is a legal determination.” Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 304 n. 14 (2005).

The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874 (2010). Counsel's decisions will be considered reasonable if they effectuated his client's interests. Commonwealth v. Miller, 605 Pa. 1, 987 A.2d 638 (2009). We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken. Id. at 653.

“Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 797 (2008). A reasonable probability ‘is a probability sufficient to undermine confidence in the outcome.’ Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super.2006).” Burkett, supra at 1272; Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Stewart, supra at 706–707.

Appellant's initial claim is that appellate counsel was ineffective for...