Com. v. Hannon, S.

• Court: Superior Court of Pennsylvania
• Decided: March 10, 2023
• Docket: 92 EDA 2022
• Status: Unpublished

Opinion

J-A20024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SEAN J. HANNON : : Appellant : No. 92 EDA 2022

Appeal from the PCRA Order Entered September 7, 2021 In the Court of Common Pleas of Wayne County Criminal Division at No: CP-64-CR-0000366-2017

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED MARCH 10, 2023

Appellant, Sean J. Hannon, appeals nunc pro tunc from the September

7, 2021 order dismissing his petition pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

On November 5, 2017, the Commonwealth charged Appellant with two

counts of endangering the welfare of children (“EWOC”), one count of driving

under the influence (“DUI”)—general impairment, two counts of recklessly

endangering another person (“REAP”), one count of driving on a suspended

license, and one count of permitting an unlicensed driver to operate his

vehicle.1 Stated briefly, Appellant, while intoxicated and driving on a

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 4304(a)(1), 75 Pa.C.S.A. § 3802(a)(1), 18 Pa.C.S.A. § 2705, 75 Pa.C.S.A. §§ 1543(b)(1) and 1574(a), respectively. J-A20024-22

suspended license, permitted his 11-year old daughter to drive for him.

Appellant’s 8-year-old son was in the vehicle at the time. Appellant’s daughter

crashed at low speed into a pine tree. These facts came from an eyewitness

who became concerned about the vehicle’s erratic maneuvering. The witness

observed the daughter driving, both children fleeing from the car after the

crash, and Appellant discarding a whiskey bottle at the scene.

After Appellant’s apprehension and a blood test revealing a blood alcohol

content (“BAC”) of .228, the Commonwealth added a charge of DUI—highest

rate of alcohol.2 At the conclusion of trial, the jury found Appellant guilty of

all charges. On October 4, 2018, the trial court imposed seven to fifteen years

of incarceration. This Court affirmed on December 30, 2019.

Commonwealth v. Hannon, 3497 EDA 2018 (Pa. Super. 2019) (unpublished

memorandum). Our Supreme Court denied allowance of appeal on June 1,

2020.

Appellant filed a timely pro se PCRA petition on June 10, 2020, followed

by an amended, counseled petition on December 29, 2020. The PCRA court

conducted a hearing on April 26, 2021. The PCRA court permitted Appellant

to file this nunc pro tunc counseled appeal after original PCRA counsel

withdrew. Appellant presents two questions for our review:

2 75 Pa.C.S.A. § 3802(c).

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I. Did the trial court err in determining that [Appellant] is not entitled to PCRA relief in that he did not meet his burden of proof?

II. Did the trial court err in determining that trial counsel did not render ineffective assistance of counsel, and did the trial court err by failing to address the cumulative nature of the errors?

Appellant’s Brief at 7.

Our standard of review is well settled:

In PCRA appeals, our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court’s hearing, viewed in the light most favorable to the prevailing party. Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. We defer to the PCRA court’s factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court’s legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015), appeal denied, 123 A.3d 331 (Pa. 2015).

Counsel is presumed effective. To overcome this presumption, the

petitioner must plead and prove by a preponderance of the evidence that (1)

the underlying issue is of arguable merit; (2) counsel had no reasonable

strategic basis in support of the disputed action or inaction, and (3) counsel’s

errors prejudiced the petitioner. Commonwealth v. Barndt, 74 A.3d 185,

192 (Pa. Super. 2013). To establish that counsel’s errors were prejudicial,

the petitioner must show there is a “reasonable probability” that, but for

counsel’s errors, the outcome of the underlying proceeding would have been

different. Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013).

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A reasonable probability is “a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Commonwealth v. Hickman, 799 A.2d 136,

141 (Pa. Super. 2002)).

Appellant argues trial counsel was ineffective for stipulating to the

evidence of Appellant’s BAC, as there was a discrepancy in the chain of

custody of Appellant’s blood sample. Appellant’s Brief at 15. The

documentation of Appellant’s BAC, admitted a trial pursuant to the parties’

stipulation, reflects that the laboratory that tested Appellant’s blood did not

receive the sample until two days after it was taken. Appellant claims there

is no evidence as to how the sample was handled in the interim. Appellant

further claims that counsel offered no reasonable strategic basis in support of

his action at the PCRA hearing, and that counsel’s action was prejudicial

because it resulted in a conviction for DUI—highest rate of alcohol, rather than

DUI—general impairment.

The only law Appellant cites in support of his argument is

Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. 2010), appeal

denied, 30 A.3d 486 (Pa. 2011). In that case, this Court held that the

defendant’s Sixth Amendment right to confront the witnesses against him was

violated where the trial court admitted BAC evidence based on the testimony

of a hospital’s records custodian, but without the testimony of the laboratory

technician who performed the blood test. Id. at 368-70 (citing Melendez-

Diaz v. Massachusetts, 557 U.S. 305 (2009)).

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Barton-Martin is inapposite here, precisely because Appellant

stipulated to the admissibility of the BAC report. Appellant was not denied the

right to examine a critical witness, as in Barton-Martin. Rather, he claims

counsel was ineffective for effectively waiving that right. The fatal flaw in that

claim is that Appellant did not call any witness, or even identify any witness,

who might have substantiated his claim that his blood sample was mishandled.

Appellant produced no evidence that the whereabouts of his blood sample

could not be accounted for during the two-day delay between the blood draw

and its testing. Nor did Appellant produce evidence to challenge the accuracy

of the BAC test, nor did he produce evidence to support a claim that the tested

blood was not his.

Cognizant of the foregoing, the PCRA court explained:

I believe the primary argument is that Attorney Price should have filed a motion to suppress because the chain of custody evidence, if you will, demonstrated at least by documents attached to the transcript and admitted as exhibits that there was a break in the chain that would have kept the results out of trial. Specifically, there was a two-day difference between what the documents indicated the date on which the blood was collected and the date that the trooper wrote down that he logged the blood in and delivered it to the lab for testing. So the two-day discrepancy is essentially the nuts and bolts of the meat of that argument. And so I find that unavailing for several reasons.

First, [Appellant] pointed out the discrepancy in the documents but did not further develop this claim. Specifically, he did not demonstrate that there was in actuality a break in the chain of a type and magnitude that would have kept the evidence out at trial. There was nothing indicated that there was anything other than some type of difference in dates that was presented, and there was nothing that indicated how this matter specifically affected him either as a practical matter or a legal

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matter. And as I indicated, I do not find credible the bold and bald statement that the blood might have been someone else’s. Similarly, there was no legal argument for the general assertion that the blood would have been suppressed. And as I noted, there was nothing to establish an actual break in the chain of a type that would have kept the evidence out at trial. In this regard, I think as the attorneys know, chain of custody matters as a general rule anyway go much more to the weight of the evidence than they do the admissibility while there needs to be a proper foundation. If there is some glitch in the chain of title, unless it reaches a certain level, it really becomes an argument as to the weight that should be afforded to the evidence and not admissibility.

N.T. Hearing, 8/30/21, at 22-24 (emphasis added).

The PCRA court was correct in stating that gaps in the chain of custody

go to the weight, rather than admissibility of the evidence in question.

Commonwealth v. Cugini, 452 A.2d 1064, 1065 (Pa. Super. 1982) (holding

that “[a] complete chain of custody is not required […] [a]ny gaps in the chain

of custody go to the weight to be given the testimony, not its admissibility”).

Appellant does not address this in his brief. Rather, he baldly asserts that

counsel’s stipulation to the admissibility of the BAC evidence, despite the two-

day gap between the retrieval of the blood sample and its testing at the lab,

was sufficient to prove all three prongs of the ineffective assistance of counsel

analysis. Because Appellant bore the burden of pleading and proving his

ineffective assistance of counsel claim, and because he has failed to develop

any legal or factual support for it,3 we affirm the PCRA court’s order.

3 Likewise, there is no merit to Appellant’s argument based on the cumulative nature of counsel’s errors. Appellant’s appellate brief argues only one error— (Footnote Continued Next Page)

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/10/2023

counsel’s stipulation to the BAC evidence—and we have found that assertion to be without merit.

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