J-S24030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
PATRICK SCOTT MONGEAU
Appellant No. 134 EDA 2020
Appeal from the PCRA Order Entered December 19, 2019 In the Court of Common Pleas of Bucks County Criminal Division at No.: CP-09-CR-0006068-2014
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 11, 2020
Appellant Patrick Scott Mongeau appeals from the December 19, 2019
order of the Court of Common Pleas of Bucks County (“PCRA court”), which
denied his petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-
46. Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
recounted by a prior panel of this Court on direct appeal:
Kimberly Harvie-Kelly [(the “victim”)], age 51 at the time of trial, resided in a single-family residence located at 85 Quaker Hill Road, in Middletown Township, Bucks County, with her four children, ages 17, 16, 13 and 9. [The victim] knew [Appellant] from middle school. In July 2012, [Appellant] contacted her through Facebook. One month later, [Appellant] called her from a bus depot in Philadelphia and told her that he did not have transportation and that he had nowhere to stay. [The victim] drove to Philadelphia, brought him back to her home and allowed ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S24030-20
him to reside there. Subsequently, the two began a romantic relationship. The criminal offenses for which [Appellant] was tried and convicted began to occur when [the victim] terminated that relationship.
This case involves three distinct criminal episodes. The first criminal episode spanned a period of approximately eight months and formed the basis for the [Appellant’s] stalking conviction. Between September of 2013 and June of 2014, [Appellant] engaged in a continuous course of conduct designed to place [the victim] in fear of bodily injury and/or to cause her substantial emotional distress. [Appellant] randomly and repeatedly appeared at the [victim’s] residence uninvited and unannounced despite being told by [her], her oldest sons and police to stay away from their home and to refrain from contacting them. On one such occasion, [Appellant] climbed on to the roof of the home. On another, he circled the home knocking on all of the windows. When not appearing in person, [Appellant] attempted to communicate with [the victim] through e-mail, text messaging and Facebook. He subjected [the victim] to physical assaults, causing her to suffer nerve damage during one of those assaults. Finally, he threatened to take her life.
On January 28, 2014, [Appellant] left [the victim] a voicemail message in which he told her, “You are dead. No one can stop me now. Goodbye you whore.” When he was contacted by the police about this death threat, [Appellant] admitted that he had made comments that he “probably shouldn’t have.” [Appellant’s] intrusions into the lives of this family caused such fear and occurred so often that the family initiated what they called the “lockdown procedure” at the first sign of [Appellant’s] potential presence. When the family was in “lockdown,” the windows and doors of the residence were locked, no one was allowed in or out and everyone in the home kept a cellphone within reach.
[The victim] soon realized that her attempts to keep [Appellant] away from her and her children had failed. She also realized that police intervention was having a negative impact on [Appellant’s] behavior. She testified that [Appellant] began to believe “he was untouchable” because, when the police were called to [the victim’s] home, he was simply escorted off the property. She was, therefore, forced to change tactics. Rather than trying to terminate the unwanted contact, she tried to minimize [Appellant’s] aggressive behavior by “keeping him calm.” That
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tactic also failed to curb [Appellant’s] violent, aggressive and controlling behavior.
The second criminal episode occurred on June 1, 2014 at Penn Warner Park, a lakeside campground located in Falls Township, Bucks County, and formed the basis for [Appellant’s] simple assault and harassment convictions. On that date, [Appellant] arrived at [the victim’s] residence shortly after midnight looking for [the victim]. Her oldest son, M.C., told [Appellant] that [the victim] was not home but did not disclose that she and her boyfriend, Joseph Loomis, were staying at Penn Warner Park. M.C. heard [Appellant] comment, “She is probably at the lake with her new boyfriend.” M.C. immediately called [the victim] and her boyfriend to warn them [Appellant] might be on his way. He also initiated ”lockdown mode.” M.C. stood watch until 3:00 a.m. to make sure [Appellant] did not return.
At approximately 1:00 a.m., [Appellant] arrived at Penn Warner Park, located the trailer where [the victim] and Mr. Loomis were staying and began banging on their door and yelling. [The victim] went outside to try to calm him down. As she was trying to speak with him, [Appellant] grabbed her, forcibly kissed her on the mouth and told her, “You have a week to fix this or we are dead.” [The victim] asked [Appellant] why she had to die. He responded, “Because we are soul mates.” [Appellant] then grabbed [the victim], one hand on the back of her neck, one hand on her chin, and twisted her head and neck. To avoid suffering serious injury, she did not resist the force being applied to her head and, as a result, was “flipped” to the ground. [The victim] testified that [Appellant] “goes for my neck like he is going to snap my neck. That's how he is going to . . . kill me.” Mr. Loomis heard [the victim] cry out and ran to assist her. [Appellant] then fled the area. [The victim] sustained painful scratches and bruises to her arms and back during this incident.
The third criminal episode occurred that same date at [the victim’s] residence and led to [Appellant’s] arson, reckless burning and criminal mischief convictions. Between 3:00 a.m. and 7:00 am., [Appellant] returned to [the victim’s] residence. He entered the shed on the property, retrieved a gas can and poured a trail of gasoline in the back yard, over a motorcycle parked beside the home and along the back wall of the residence. He ignited the gasoline with a match. The fire, while burning, blocked anyone from exiting the home through the sliding glass doors located at
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the back of the residence. M.C., M.G., E.K. and W.K. were asleep in the house when [Appellant] started the fire.
Commonwealth v. Mongeau, No. 3513 EDA 2015, unpublished
memorandum, at 1 (Pa. Super. filed October 19, 2016) (citing Trial Court
Opinion, 4/8/16, at 2-5) (record citations, unnecessary capitalizations and
footnotes omitted). Following the jury trial, Appellant was convicted of arson
endangering inhabited property, reckless burning endangering personal
property, criminal mischief, stalking, simple assault, harassment, and four
counts of recklessly endangering another person (“REAP”).1 On April 20,
2015, the trial court sentenced him to consecutive terms of five to ten years’
imprisonment for arson, three-and-a-half to seven years for reckless burning,
two-and-a-half to five years for stalking, one to two years for simple assault,
and one to two years each REAP conviction. The court imposed upon Appellant
an aggregate term of sixteen to thirty-two years’ imprisonment. Following
the filing of post-sentence motions, which the trial court denied, Appellant
filed a direct appeal. As noted, a panel of this Court affirmed Appellant’s
judgment of sentence on October 19, 2016. Our Supreme Court denied
Appellant’s petition for allowance of appeal on April 11, 2017. See
Commonwealth v. Mongeau, 168 A.3d 1251 (Pa. 2017).
On August 7, 2017, Appellant pro se filed a PCRA petition, alleging,
among other things, ineffective assistance of counsel claims. The PCRA court
____________________________________________
1 18 Pa.C.S.A. §§ 3301(c)(2), 3301(d)(2), 3304(a)(1), 2709.1(a)(1), 2701(a)(1), 2709(a)(1) and 2705, respectively.
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appointed counsel, who filed an amended petition. Following a hearing, the
PCRA court denied Appellant relief on December 19, 2019. Appellant timely
appealed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
On appeal,2 Appellant raises a single issue for our review.
[I.] Did [Appellant] receive ineffective assistance of counsel when counsel on direct appeal failed to preserve and argue against the overruling of her objection to inadmissible hearsay?
Appellant Brief at 3.
At the core, Appellant argues that, although his counsel timely lodged a
hearsay objection at trial,3 she failed to pursue on direct appeal the overruling
of that objection.4 Id. at 14. As a result, she rendered ineffective assistance
on direct appeal. ____________________________________________
2“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determination ‘is supported by the record and free of legal error.’” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)). 3 Appellant does not identify the offending statements in his brief before us. We, however, are able to discern from the Commonwealth’s brief and the trial court’s Rule 1925(a) opinion that Appellant challenges his direct appeal counsel’s failure to pursue on appeal two distinct trial objections. The first concerns the admission of Officer Thomas Lundquist’s testimony relating to the victim’s statements. The second relates to the recording of Mr. Loomis’ 911 call that was played for the jury. 4 Our standard of review regarding evidentiary issues is well-settled.
The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is
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When a petitioner asserts an ineffectiveness claim, he is entitled to relief
if he pleads and proves that prior counsel rendered ineffective assistance of
counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). “To prevail on an [ineffectiveness]
claim, a PCRA petitioner must plead and prove by a preponderance of the
evidence that (1) the underlying legal claim has arguable merit; (2) counsel
had no reasonable basis for acting or failing to act; and (3) the petitioner
suffered resulting prejudice.” Commonwealth v. Reyes-Rodriguez, 111
A.3d 775, 780 (Pa. Super. 2015) (en banc). “A petitioner must prove all three
factors of the “Pierce[5] test,” or the claim fails.” Id. Put differently, “[t]he
burden of proving ineffectiveness rests with Appellant.” Commonwealth v.
Chmiel, 889 A.2d 501, 540 (Pa. 2005).
Instantly, Appellant is not entitled to relief. Despite his argument that
his ineffectiveness claims meet the arguable merit prong of the Pierce test,
his brief is bereft of any discussion or argument with respect to the reasonable
basis and prejudice prongs. As we recently emphasized, “[a] petitioner must
prove all three factors of the Pierce test, or the [ineffectiveness] claim fails.
In addition, on appeal, a petitioner must adequately discuss all three ____________________________________________
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. If in reaching a conclusion the trial court overrides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error. Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012) (internal quotations and citations omitted). 5 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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factors of the Pierce test, or the appellate court will reject the claim.”
Reyes-Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86 A.3d
at 804)). Thus, given Appellant’s failure to discuss the reasonable basis and
prejudice prongs on appeal, we must reject his ineffectiveness claims.
Nonetheless, even if we were to review the merits of his ineffectiveness
claim, we would conclude that he still is not entitled to relief. Indeed, after
careful review of the record and the relevant case law, we conclude that the
trial court accurately and thoroughly addressed the merits of Appellant’s
claim. See Trial Court Opinion, 2/24/20, at 5-13. The PCRA court found that
the statements at issue did not implicate hearsay. The testimony of Officer
Lundquist, was not offered for the truth of the matter asserted, “but rather to
establish the consistency between the victim’s account and her physical
condition and to explain the steps Officer Lindquist took to investigate the
complaint.” Id. at 7. In other words, the purpose of the testimony was to
explain Officer Lundquist’s course of conduct in response to the reported
assault on the victim.6 Id. Furthermore, regardless of whether the recording
of the Mr. Loomis’ 911 call was properly admitted under the present sense
impression and/or excited utterance exceptions to the hearsay rule, any error
was harmless, as the call was cumulative of other non-hearsay testimony. Id. ____________________________________________
6 “It is well established that certain out-of-court statements offered to explain the course of police conduct are admissible because they are offered not for the truth of the matters asserted but rather to show the information upon which the police acted.” Commonwealth v. Trinidad, 96 A.3d 1031, 1037 (Pa. Super. 2014) (citing Commonwealth v. Weiss, 81 A.3d 767, 806 (Pa. 2013) (quoting Commonwealth v. Chmiel, 889 A.2d 501, 532 (Pa. 2005)).
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at 9-11. We, therefore, agree with the PCRA court’s conclusion that
Appellant’s ineffectiveness claim lacks arguable merit. Accordingly, we affirm
the trial court’s December 19, 2019 order denying Appellant’s PCRA petition.
We further direct that a copy of the trial court’s February 24, 2020 opinion be
attached to any future filings in this case.
Order affirmed.
President Judge Emeritus Bender joins the memorandum.
Judge Strassburger files a concurring memorandum. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/11/2020
-8- Circulated 07/14/2020 0�6 PM 1 /u'/{t°Cf;J// o» IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA No. CP-09-CR-0006068-2014
v. [134 EDA 2020]
OPINION
Petitioner, Patrick Scott Mongeau, filed an appeal from this Court's order dated December
19, 2019, denying Petitioner's request for relief pursuant to the Post Conviction Relief Act
("PCRA"), 42 Pa.C.S. §9541 et seq.
On February 6, 2015, following a trial by jury, Petitioner was convicted of Arson
(endangering inhabited property), specifically the residence of Kimberly Harvie-Kelly and her four
children, M.C.,1 M.G., E.K. and W.K., in violation of 18 Pa.C.S. §330l(c)(2), Reckless Burning
(endangering personal property), specifically a motorcycle owned by Ms. Harvie-Kelly, in
violation of 18 Pa.C.S. §330l(d)(2), Criminal Mischief, in violation of 18 Pa.C.S. §3304(a)(l),
Stalking of Ms. Harvie-Kelly in violation of 18 Pa.C.S. §2709. l(a)(l), Simple Assault of Ms.
Harvie-Kelly in violation of 18 Pa.C.S. §2701 (a)(l ), Harassment of Ms. Harvie-Kelly in violation
of 18 Pa.C.S. §2709(a)(l), Recklessly Endangering M.C., Recklessly Endangering M.G., ··t- Recklessly Endangering E.K. and Recklessly Endangering W.K in violation of 18 Pa.C.S. §2705. H ·��
On Apifi'20, iot 5, Petitioner was sentenced to consecutive terms of incarceration of five to ten
years for.the, crime of Arson, three-and-a-half to seven years for the crime of Reckless Burning, t !.�,
I Ms. Harvie-Kelty is the guardian ofM.C. N.T. 2/4/15, at 28-29.
I )
two-and-a-half to five years for the crime of Stalking/ one to two years for the crime of Simple
Assault, and one to two years for each of the crimes of Recklessly Endangering Another Person
for an aggregate sentence of sixteen to thirty-two years.
The facts of the case were summarized in this Court's opinion for direct appeal as follows:
Kimberly Harvie-Kelly, age 51 at the time of trial, resided in a [single-family] residence located at 85 Quaker Hill Road, in Middletown Township, Bucks County, with her four children, ages 17, 16, 13 and 9. [N.T. 2/5/15 pp. 36-37.] Ms. Harvie-Kelly knew [Petitioner] from middle school. In July of 2012, [Petitioner] contacted her through Facebook. One month later, [Petitioner] called her from a bus depot in Philadelphia and told her that he did not have transportation and that he had nowhere to stay. Ms. Harvie- Kelly drove to Philadelphia, brought him back to her home and allowed him to reside there. Subsequently, the two began a romantic relationship. The criminal offenses for which [Petitioner] was tried and convicted began to occur when Ms. Harvie-Kelly terminated that relationship. [N.T. 2/5/15 pp. 39-45.]
This case involves three distinct criminal episodes. The first criminal episode spanned a period of approximately eight months and formed the basis for [Petitioner]'s Stalking conviction. Between September of 2013 and June of 2014, [Petitioner] engaged in a continuous course of conduct designed to place Ms. Harvie-Kelly in fear of bodily injury and/or to cause her substantial emotional distress. [Petitioner] randomly and repeatedly appeared at the Harvie-Kelly residence uninvited and unannounced despite being told by Ms. Harvie-Kelly, her oldest sons and police to stay away from their home and to refrain from contacting them. [N.T. 2/4/15 pp. 22-25, 32-33; N.T. 2/5/15 p. 46, 50-53.] On one such occasion, [Petitioner] climbed on to the roof of the home. [N.T. 2/5/15 p. 53.] On another, he circled the home knocking on all of the windows. [N.T. 2/5/15 p. 52.] When not appearing in person, (Petitioner] attempted to communicate with Ms. Harvie-Kelly through e-mail, text messaging and Facebook. [N.T. 2/5/15 pp. 46, 48-49.] He subjected Ms. Harvie-Kelly to physical assaults, causing her to suffer nerve damage during one of those assaults. [N.T. 2/5/15 p. 68.] Finally, he threatened to take her life. On January 28, 2014,
2 The court sheet for April 20, 2015 originally reflected a maximum sentence of seven years on the stalking conviction. By order dated June 12, 2019, the record and the court sheet were corrected to reflect that the maximum sentence imposed was five years. )
[Petitioner] left Ms. Harvie-Kelly a voicemail message in whi�h he told her, "You are dead. No one can stop me now. Goodbye you whore." [N.T. 2/5/15 p. 50; Exhibit C-5.] When he was contacted by the police about this death threat, [Petitioner] admitted that he had made comments that he "probably shouldn't have." [N.T. 2/4/15 pp. 23-24.] [Petitioner]'s intrusions into the lives of this family caused such fear and occurred so often that the family initiated what they called the "lockdown procedure" at the first sign of [Petitioner]'s potential presence. When the family was in "lockdown," the windows and doors of the residence were locked, no one was allowed in or out and everyone in the home kept a cellphone within reach. [N.T. 2/4/15 pp. 35-36; N.T. 2/5/15 p. 52.] Ms. Harvie-Kelly soon realized that her attempts to keep [Petitioner] away from her and her children had failed. She also realized that police intervention was having a negative impact on [Petitioner]'s behavior. She testified that [Petitioner] began to believe "he was untouchable" because, when the police were called to Ms. Harvie-Kelly's home, he was simply escorted off the property. [N.T. 2/5/15 p. 54.] She was, therefore, forced to change tactics. Rather than trying to terminate the unwanted contact, she tried to minimize [Petitioner]'s aggressive behavior by "keeping him calm." [N.T. 2/5/15 pp. 54-56.] That tactic also failed to curb [Petitioner]' s violent, aggressive and controlling behavior. The second criminal episode occurred on June 1, 2014 at Penn Warner Park, a lakeside campground located in Falls Township, Bucks County, and formed the basis for [Petitioner]'s Simple Assault and Harassment convictions. On that date, [Petitioner] arrived at the Harvie-Kelly residence shortly after midnight looking for Ms. Harvie-Kelly. Her oldest son, M.C., told [Petitioner] that Ms. Harvie-Kelly was not home but did not disclose that she and her boyfriend, Joseph Loomis, were staying at Penn Warner Park. M.C. heard [Petitioner] comment, "She is probably at the lake with her new boyfriend." M.C. immediately called Ms. Harvie-Kelly and her boyfriend to warn them [Petitioner] might be on his way. He also initiated "lockdown mode." M.C. stood watch until 3 :00 a.m. to make sure [Petitioner] did not return. [N.T. 2/4/15 pp. 28-40.] At approximately 1 :00 a.m., [Petitioner] arrived at Penn Warner Park, located the trailer where Ms. Harvie-Kelly and Mr. Loomis were staying and began banging on their door and yelling. [N.T. 2/4/15 pp. 108-111; N.T. 2/5/15 pp. 60-63.] Ms. Harvie-Kelly went outside to try to calm him down. As she was trying to speak with him, [Petitioner] grabbed her, forcibly kissed her on the mouth and told her, "You have a week to fix this or we are dead." Ms. )
The standards applicable to claims of ineffective assistance of counsel are well established.
Counsel's performance is presumed to be constitutionally adequate. Commonwealth v. Smjth,
609 Pa. 605, 623, 17 A.3d 873, 883 (2011 ). To be eligible for relief based on ineffective assistance
of trial counsel, Petitioner must establish the following:
(I) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Pierce. 567 Pa. 186, 786 A.2d 203, 213 (2001).
Commonwealth v. Spot� 587 Pa. I, 32-33, 896 A.2d 1191, 1209-10 (2006). Trial counsel will
not be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Keaton, 623
Pa. 229, 240, 82 A.3d 419, 426 (2013). Moreover, defense counsel is afforded broad discretion to
determine tactics and strategy. Commonwealth v. Fowler, 670 A.2d 153 (Pa.Super.1996). Where
a petitioner has failed to meet any of the three distinct prongs of the ineffective assistance of
counsel test, the claim may be disposed of on that basis alone, without a determination of whether
the other two prongs have been met. Commonwealth v. Basemore, 560 Pa. 258, 294, 744 A.2d
717, 738 n.23 (2000).
Petitioner asserts that trial counsel was ineffective for failing to challenge two hearsay
rulings on appeal. The first ruling occurred during the testimony of Officer Thomas Lundquist of
the Falls Township Police Department. Officer Lundquist testified that he responded to the Penn
Warner Club for the report of a domestic in progress and spoke to the victim and Mr. Loomis.
N.T. 2/4/15, at 53-54. He was then asked what he learned from the victim. N.T. 2/4/15, at 54.
Trial counsel objected to the testimony as hearsay. Trial counsel's objections were overruled.
N.T. 2/4/15, at 54-55. Officer Lundquist thereafter summarized the victim's account as follows:
She was previously involved in a relationship with (Petitioner] Mr. Mongeau and ... she had broken off the relationship with him; that