Commonwealth v. Shower

1

COMMONWEALTH OF PENNSYLVANIA v. TONY BRENT SHOWER, JR. Appellant

No. 1248 MDA 2022

Superior Court of Pennsylvania

June 7, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the PCRA Order Entered August 5, 2022 In the Court of Common Pleas of York County Criminal Division at No(s) CP-67-CR-0007642-2018

BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Tony Brent Shower, Jr., appeals from the order denying his first petition filed under the Post Conviction Relief Act (PCRA)^[1] alleging claims of ineffective assistance by the attorneys who represented him at his jury trial and on direct appeal. We affirm.

This Court previously set forth the following summary of the evidence presented at trial:

On November 22, 2016, a van struck and killed four-year-old D.W. in front of her home in Hanover Borough, York County. The van's driver did not stop at the scene of the accident. . .

At trial, Natalie Meckley (Meckley), D.W.'s older half-sister, testified that she drove to York with two of her friends and D.W. on the day of the accident. When the group returned just after 7:00 p.m., Meckley parked across the street from her parents' home. Meckley saw a van "fly past" in the opposite direction as she got out of the car, unaware that D.W. was no longer in the backseat. Meckley then heard a "loud noise" that she described as "an impact sound." At first, she thought that the van hit a "trash can or something." However, when she saw D.W. laying in the roadway, Meckley realized that the van had struck her sister and rushed inside her parents' home to get help.

Matthew Markle (Markle), a neighbor down the street, testified that he heard a "loud crunch" and thought it was a garbage can. Turning toward the noise, Markle saw a white utility van driving toward him and noticed that it had a roof rack with a ladder. Despite it being dark out, Markle saw that the van's driver was a white male with a dark "scruffy beard or goatee" and had no passenger with him.

Sergeant Matthew Waltersdorff was the first to arrive. After an ambulance left with D.W., he secured the scene and began reconstructing the accident. Based on his review, he made several findings. First, there were no skid marks on the road, suggesting that the driver did not take any evasive actions or brake before or after the accident. Second, there was a trail of blood on the road that included several smears typical of a person being dragged by a vehicle. By mapping the blood marks, Sergeant Waltersdorff determined that the van dragged D.W. over three car lengths from the area of impact to the final resting place. Finally, using footage from a neighbor's security camera, Sergeant Waltersdorff determined that the van was going 22 miles per hour just before the accident.

Within minutes of the accident, the police issued a "be on the lookout" (BOLO) for the van. Officer John Carbaugh testified that he was on patrol in a neighboring township when he saw a van matching the BOLO around 7:30 p.m. After pulling over the van, Officer Carbaugh questioned the driver, Stephen Gambal (Gambal) and his passenger, Shower. Gambal was evasive at first in answering questions. However, when the officer told him the reason for the stop, Gambal became more relaxed and denied being in an accident. After finding no fresh damage on the van, Officer Carbaugh released Gambal and Shower. A few hours later, however, the police pulled over Gambal again. Gambal was in the van by himself and had crack cocaine and drug paraphernalia. After failing field sobriety tests, he was arrested for DUI and drug possession. As a result, the police towed his van and inspected it again. This time, the police found blond hair in the driver's side headlight, leading to a search warrant for the van; DNA testing of the hair later matched it to D.W., confirming that Gambal's van was involved in the accident.

Lieutenant Scott James, a detective with the District Attorney's office, testified about the damage to the van. First, there was a long scratch on the front bumper that, according to him, matched the zipper on the jacket D.W. was wearing at the time of the accident. He also found several distinct marks on the bumper that he believed were "finger marks" and an apparent fabric transfer pattern on the van, explaining that such transfers are common when a person is struck by a vehicle and their clothing pattern is visible on the car. Moving to the front grill, he testified that the driver's side portion was pushed in while the passenger's side stuck out. Additionally, after he removed the grill, he discovered that there were several pieces of plastic that had broken off and were missing. When he then removed the headlight, he discovered the plastic pieces. In his view, the accident caused this damage, stating that he would not have expected to find the loose pieces if the damage had not been recent.

. . . Gambal [then] recounted what happened the day of the accident[, testifying] that he was a contractor and that Shower worked for him. On the morning of the accident, he picked up Shower in his van and drove to a job site in Hanover. At the site, the two smoked crack cocaine together. The two then drove to Baltimore to get more crack cocaine. After doing so, the two returned to Pennsylvania in the afternoon but soon drove back to Baltimore, this time buying crack cocaine and heroin. While there, Shower ingested the heroin.

The two left Baltimore around 5 or 5:30 p.m. As they drove home, Shower took over driving because he wanted to go to his methadone clinic. When he realized the clinic was closed, Shower drove back to Hanover and wanted to get more drugs. Because he needed to go alone to get the drugs, Shower dropped Gambal off at a local bar and drove off in the van.

According to Gambal, Shower came back about 20 minutes later. As soon as he returned, Shower told Gambal that he needed to drive the van. Gambal assumed Shower had drugs on him and took over driving the van. Not long after, however, the police pulled the van over. Gambal recalled he was nervous at first but was fine after the police told him the reason for the stop. After the police released them, Shower wanted to go home. As they drove, the two did not discuss what happened. When they finally arrived, Shower got out of the van without waiting for Gambal to come to a complete stop. . . Gambal then went back to Baltimore to get more crack cocaine before returning to Pennsylvania and being arrested.

The Commonwealth's final witness was the lead investigator, Officer Jared Auman. In October 2018, he re-interviewed Mathew Markle about seeing the van's driver after the accident. Officer Auman showed Markle two photo arrays-one with Gambal in it, the other with Shower in it. Markle made no identification in the first array that included Gambal. In the second array, however, Markle selected four individuals as possibly being the driver, including Shower.

Officer Auman further testified about Shower's post-accident statements. Shower gave his first statement the day after the accident. In that statement, he claimed that he was asleep while Gambal drove the van and that he never heard anything. Officer Auman re-interviewed Shower in May 2017 after obtaining a prison phone call in which Gambal told his mother that Shower dropped him off to get drugs. Shower again denied that he drove the van the night of the accident. In August 2017, however, Shower reached out to the police to give a third statement. Though he still denied driving the van, Shower now claimed that he heard a thud while Gambal was driving. When Shower asked what happened, Gambal responded that he hit something. Gambal then pulled over farther down the road. According to Shower, Gambal was "pale white" and said, "I believe I just hit a kid."

Commonwealth v. Shower, No. 1071 MDA 2020, 2021 WL 2395955, *1-3 (Pa. Super. filed June 9, 2021) (unpublished memorandum).

For the purpose of our present analysis, we additionally highlight the evidence at trial specifically touching upon Appellant's drug use and intoxication on the date of the accident. As discussed above, Gambal testified that he and Appellant smoked crack cocaine when they first arrived at the construction site in the morning, the two then smoked crack cocaine during a morning excursion to Baltimore, and they smoked crack cocaine again when they visited Baltimore in the afternoon; Appellant also used heroin intravenously during the afternoon trip. N.T. Trial at 389-95, 428. According to Gambal, after returning to Pennsylvania, Appellant left Gambal at a bar and drove in Gambal's van to buy more drugs in Hanover, returning 20 minutes later. Id. at 399-405, 430.

Upon Appellant's return, Gambal then drove away with Appellant in the passenger seat, but they were pulled over just after leaving the bar. Id. at 406-07, 244-45. Officer Carbaugh initiated the traffic stop at 7:30 p.m., approximately 21 minutes after the crash that caused D.W.'s death. Id. at 242-46. During the traffic stop, Officer Carbaugh concluded that Appellant "was extremely intoxicated" after observing Appellant seated in the passenger seat and attempting to have a conversation with him. Id. at 248-51. Officer Carbaugh related that Appellant was "very difficult to speak with, very difficult to get words out of him at the time," and he kept repeating to the officer "aren't you cold, aren't you cold." Id. at 251. Officer Carbaugh stated that the only information he obtained from Appellant in response to questions about whether he had driven in the vicinity of the scene of the accident was Appellant's statement that he and Gambal had traveled to Maryland to obtain methadone. Id. at 251-52, 265.

Finally we note that...