J-S39017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
BRIAN ROLES
Appellant No. 1338 WDA 2016
Appeal from the PCRA Order August 3, 2016 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0001464-2012
BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 26, 2017
Brian Roles appeals from the August 3, 2016 order denying him PCRA
relief. We affirm.
Appellant was found guilty by a jury of homicide by vehicle while
driving under the influence (“DUI”) of alcohol or controlled substances,
homicide by vehicle, aggravated assault by vehicle while DUI, involuntary
manslaughter, two counts of recklessly endangering another person, DUI—
second offense general impairment, DUI—second offense highest rate, and
DUI—second offense drug and alcohol combination. These convictions arose
from a single-vehicle accident that occurred at approximately 10:45 p.m. on
April 8, 2012. Appellant was driving a truck that veered off the road in the
600 block of William Penn Avenue, East Taylor Township. The truck traveled
* Retired Senior Judge assigned to the Superior Court. J-S39017-17
up an embankment, crashed into a pole, and came to rest on the driver’s
side. Appellant’s son, Brian Jr., sitting in the front passenger’s seat, was
ejected from the truck during the incident, and was pronounced dead at the
scene. Appellant’s nephew, K.R., was in the rear passenger seat.
Police Officer Shaun Gregory, who worked both for the East Taylor
Township Police Department and the Jackson Township Police Department,
responded to the police call about the accident. After Officer Gregory
arrived on the scene at approximately 11:00 p.m., he spoke with Appellant.
Appellant “said he was driving northbound on William Penn Avenue,” when
another vehicle traveling southbound “came in his lane of travel, causing
him to swerve off the side of the road, up the embankment and strike the
telephone pole.” N.T. Trial, 8/27/13, at 14. Appellant had bloodshot and
glassy eyes and the odor of alcohol was emanating from him; he was also
visibly upset about the death of his son.
Officer Gregory described the scene as very chaotic since members of
the Roles family were present and were reacting to the death of Brian Jr. As
Officer Gregory suspected Appellant was DUI, he placed him in a police car,
and East Taylor Township Police officer Joseph Marsh transported him to
Conemaugh Hospital, which was a five-minute drive, for a blood test.
While K.R. was receiving treatment in an ambulance, Officer Gregory
asked him what had occurred. K.R. reported that an oncoming vehicle had
forced them from the road and that Brian was driving. K.R. did not state
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whether Appellant, who was known as big Brian, or Brian Jr., who was called
little Brian, was the driver.
Dr. Matthew Perry treated Appellant in the emergency room and
reported that Appellant had minor abrasions to his lower extremities.
Appellant was cooperative but “smelled of alcohol.” N.T. Trial, 8/28/13, at
122. Dr. Perry testified that he asked Appellant a standard question, which
was “his position in the car, and [Appellant] told me he was the driver.” Id.
at 123. Blood alcohol testing revealed that Appellant had a blood alcohol
content of .17%. In addition, Appellant’s blood tested positively for the
presence of Oxycontin and Xanax.
Dr. Eric Roslonski, a pain management physician, also testified on
behalf of the Commonwealth. Appellant was one of his patients when the
accident occurred. At an April 27, 2012 appointment with Dr. Roslonski,
Appellant discussed follow-up on a prior pain management plan. Appellant
told Dr. Roslonski about the April 8, 2012 traffic accident and stated that “he
was driving his truck with his 16 year old son and teenage nephew and he
was run off the road[.]” N.T. Trial, 8/29/13, at 211.
The Commonwealth also presented the testimony of Greg
Sullenberger, an accident reconstructionist and expert in occupant
kinematics. Mr. Sullenberger testified that the victim's injuries were
consistent with having been expelled from the passenger side of the vehicle.
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Appellant testified at trial on his own behalf. He denied driving the
truck, stating that he had a seizure minutes before the truck crashed and
awoke to find his son driving and an oncoming car headed in their direction.
On August 29, 2013, K.R. testified on behalf of Appellant as follows. He
stated that Appellant was driving, they stopped at a local shop for
sandwiches and beer, and Appellant fell over when they were walking back
to the truck. Brian Jr. told K.R. that Appellant often had seizures so he and
Brian Jr. placed Appellant into the truck. At that point, Brian Jr. took over
driving responsibilities and was driving when a car entered their lane of
travel and forced them from the road. In his defense, Appellant also
presented expert testimony from Thomas Laino, who opined that Appellant’s
son had been driving.
The next day, August 30, 2013, K.R. voluntarily came forward to the
district attorney, Eric Hochfeld, Esquire, and said that the testimony he had
given at trial on August 29, 2013, was false and that he wanted to recant it.
K.R. agreed, in exchange for not being charged with perjury, to return to the
stand and testify on behalf of the Commonwealth as a rebuttal witness.
Before K.R. testified, the jury was told that “the defendant is entitled
to an instruction to you that, if K.R. testifies today in a fashion that’s
contrary to what he testified to yesterday, the district attorney may well be
able to charge him with perjury.” N.T. Trial, 8/30/13 at 158. The trial court
also informed the jury that the district attorney had offered “not to
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prosecute [K.R.] if his testimony is in divergence with what he testified to
yesterday.” Id.
K.R. explained to the jury that, after his August 29, 2013 testimony,
he could not eat or sleep as he “felt guilty . . . [b]ecause my cousin is not
getting the justice he deserves.” Id. at 159-60. The morning of August 30,
2013, K.R. went to school and spoke to school personnel about the situation,
and they contacted Cambria County Children and Youth Services (“CYS”),
which sent a representative to help K.R. After consulting with the CYS
employee and speaking with his own lawyer, K.R. decided to change his
testimony from the previous day.
On August 30, 2013, K.R. testified as follows. Appellant, Brian Jr., and
he had stopped at a local shop and ordered sandwiches, but, afterward,
Appellant had not fallen to the ground. Rather, they had all merely entered
the truck together and departed. Appellant was driving, Brian Jr. was in the
front passenger seat, and K.R. occupied the rear passenger seat. K.R. also
denied that an oncoming car had caused the accident. Instead, “big Brian,
he either fell asleep or nodded away or something. And he started to drift to
the right, and Brian Jr., little Brian, grabbed the wheel, and the truck just
wrecked. It just flipped.” Id. at 164. K.R. repeated that Appellant was
driving, Appellant started to nod, and the truck began to veer to the right.
K.R. insisted that there was no oncoming car in their lane of travel.
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K.R. also testified that, immediately after Appellant was charged
herein, Appellant began to have frequent conversations with K.R. about his
testimony and about what to say at trial. Appellant directed K.R. to testify
that Brian Jr. was driving and that an oncoming car forced them from the
roadway. Id. at 167-168. K.R. was then questioned about a written
statement that he had given to police:
Q. There was a written statement that was admitted as a defense exhibit, and you recall giving that statement to the police.
A. Yes.
Q. And your father was present at the time.
Q. And you stated yesterday that was -- that was the truth, that that’s what had happened, what was in that statement?
Q. Would you agree then that statement isn’t correct based on what you’re saying today?
Q. And was that statement the product of your uncle telling you what to say?
Id. at 169. K.R. was not cross-examined; Appellant’s two trial lawyers
simply established that they were not involved, prior to trial, in crafting
K.R.’s August 29th testimony. After he gave his trial testimony, K.R.
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reported to the trial judge that he was not comfortable returning home,
declined the opportunity to be remanded to the custody of CYS, and was
allowed to stay at his girlfriend’s home.
Appellant was convicted of the above-delineated charges, and, on
September 25, 2015, sentenced to eight and one-half to seventeen years
incarceration. The court, which had the benefit of a pre-sentence report,
indicated that Appellant had juvenile adjudications as well as thirty prior
adult convictions, and some parole violations. On appeal, we affirmed.
Commonwealth v. Roles, 116 A.3d 122 (Pa.Super. 2015), appeal denied,
128 A.3d 220 (Pa. 2015).
Appellant filed a timely pro se PCRA petition, counsel was appointed,
and counsel filed two amended PCRA petitions. PCRA relief was denied
following a hearing. In this appeal, Appellant raises these averments:
1. Was trial counsel ineffective in failing to deliver a closing statement to the jury, despite Appellant's efforts to have them do so?
2. Was trial counsel ineffective in failing to cross-examine the only eyewitness to the alleged crime offered by the Commonwealth, despite his obvious inconsistent testimony at trial?
3. Was trial counsel ineffective in opting to proceed to trial when it knew that potentially exculpatory evidence in the Commonwealth's possession had not been analyzed as ordered by the Court?
4. Was trial counsel ineffective in failing to impeach one of the investigating officers during his testimony by using his prior statements?
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5. Was trial counsel ineffective in failing to pursue text messages sent by the victim on the night of the incident in question that may have been exculpatory in nature towards the Appellant?
6. Was trial counsel ineffective when he incorrectly stated at sentencing that the Appellant's convictions carried a 5-year mandatory sentence when they, in fact, only carried a 3-year mandatory sentence?
7. Was trial counsel ineffective in failing to object to the lack of merger, for sentencing purposes, of Appellant's convictions for Homicide by Vehicle and Homicide by Vehicle by DUI?
Appellant’s brief at 4.
Initially, we note that appellate review of a PCRA order “is limited to a
determination of whether the record supports the PCRA court's factual
findings and whether its legal conclusions are free from error. A PCRA
court's credibility findings are to be accorded great deference, and where
supported by the record, such determinations are binding on a reviewing
court. We review the PCRA court's legal conclusions de novo.”
Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016) (citations
omitted).
Appellant’s complaints relate to whether his trial counsel, Nicholas
Banda, Esquire, and Ryan D. Gleason, Esquire, were ineffective. To succeed
on an ineffective assistance of counsel claim, a defendant must “rebut the
presumption that counsel rendered effective assistance and prove, by a
preponderance of the evidence, that (1) the claim has arguable merit, (2)
counsel's action or inaction was not based upon a reasonable trial strategy,
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and (3) petitioner suffered prejudice because of counsel's act or omission.”
Id. at 454. With respect to the second prong, we “will conclude that
counsel's chosen strategy lacked a reasonable basis only if the petitioner
proves that the alternative strategy not selected offered a potential for
success substantially greater than the course actually pursued.”
Commonwealth v. Busanet, 54 A.3d 35, 46 (Pa. 2012). To succeed in
establishing the “prejudice prong, the petitioner must demonstrate that
there is a reasonable probability that the outcome of the proceedings would
have been different but for counsel's ineffectiveness.” Id.
Appellant’s first averment is that Mr. Banda, who was scheduled to
conduct summation, was ineffective for failing to present closing argument
after K.R.’s stunning admission that Appellant had suborned K.R.’s perjury
and committed perjury himself. This rebuttal testimony was presented just
before counsel was to offer closing remarks to the jury. After K.R. presented
this rebuttal testimony, Mr. Banda simply stated that he would not be giving
closing remarks due to the circumstances that had just occurred.
On appeal, Appellant relies upon Commonwealth v. Sparks, 539
A.2d 887 (Pa.Super. 1988), wherein we opined that trial counsel was
ineffective for not giving closing remarks to the jury. That case involved a
robbery and rape, where, at his jury trial, the defendant offered an alibi
defense. The record indicated that both the defense and the Commonwealth
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evidence, including the victim’s identification testimony, was “ambiguous
and conflicting.” Id. at 888.
After the defense rested, the defendant’s lawyer stated that he would
not offer closing remarks since the testimony was “already riddled with
confusion, reasonable doubt and contradictions.” Id. at 889. The prosecutor
proceeded to present a “summation spanning thirty-nine pages of trial
transcript, in which, inter alia, he offered explanations for the inconsistencies
in the Commonwealth's evidence and characterized the [complex] medical
evidence as ‘unrefuted.’” Id. At the hearing on the defendant’s petition for
post-conviction relief, trial counsel explained that he declined summation
since he believed that he “had the case won,” and “that his disdain for the
Commonwealth's evidence would have an impact on the jury by suggesting,
at least by implication, that he ‘did not want to dignify the Commonwealth's
case with a response.’” Id.
The Sparks Court noted that “the constitutional right to representation
by counsel in a criminal proceeding includes the right to make a closing
argument,” but acknowledged that “the right may be waived as a matter of
trial strategy.” Id. at 889. It observed that the cases where trial counsel
was determined to have acted reasonably in foregoing summation had
involved “non-jury trials of short duration in which the evidence had been
straightforward and uncomplicated.” Id. The Sparks Court rejected trial
counsel’s proffered strategy as reasonable because the trial was before a
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jury, the evidence was inconsistent on both sides, there were complex
medical issues involved, and the Commonwealth had explained the
inconsistencies in its case and characterized the medical evidence as solid
while the defendant’s trial counsel abandoned the opportunity to rebut these
positions.
This Court in Sparks relied upon the United States Supreme Court’s
view on the importance of closing argument as elucidated in Herring v.
New York, 422 U.S. 853 (1975), wherein the Court ruled unconstitutional a
state statute that allowed judges presiding over nonjury trials to deny
counsel the opportunity to make closing remarks. The Herring Court
observed:
It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt.
Id. at 862.
In his argument on appeal, Appellant analogizes the evidence
presented at his trial to that at issue in the Sparks case, and he relies upon
Herring’s opinion as to the importance of summation. Appellant, however,
overlooks the spectacular ending of his own jury trial. K.R. was the only
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eyewitness to the events in question. After the close of the defendant’s
case, K.R. came forward, despite trepidation about the consequences that he
would suffer, and outlined to the jury that Appellant perjured himself and
that Appellant had actively solicited and suborned perjury from K.R. This
testimony was presented immediately before trial counsel had to make his
summation to the jury.
As Mr. Banda explained at the PCRA hearing, he did not want to call
his own star witness a liar. The PCRA court herein concluded that this
explanation was reasonable, that Sparks was distinguishable, and that
Appellant was not prejudiced by the absence of a summation. Trial Court
Opinion, 8/3/16 at 7 (based on its instructions to the jury, “we cannot find
that the lack of a closing argument prejudiced the Defendant”). The record
does not support a finding that the PCRA court abused its discretion in this
respect.
We concur with the PCRA court that, based upon the instructions that
were disseminated to the jury, Appellant did not meet his burden of proving
the prejudice aspect of the ineffective-assistance-of-counsel test, i.e., that
there is a reasonable probability that the outcome of the trial proceedings
would have been different had Mr. Banda offered closing remarks. We first
observe that Appellant makes no suggestion as to what summation could
have been offered, merely suggesting that there were unspecified
weaknesses in the Commonwealth’s case that Mr. Banda could have pointed
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out to the jury. Appellant’s brief at 14. However, when Mr. Banda was
asked to close, his star witness had just recanted, said he was pressured by
Appellant to perjure himself, and accused Appellant of perjury. At most, Mr.
Banda could have said that K.R. was perjuring himself on August 30, 2013,
rather than on August 29, 2013, and that Appellant’s August 29, 2013
testimony was truthful, even though, prior to being charged, Appellant told a
police officer and two doctors that he was driving when the accident
occurred.
Second, we conclude that the trial court’s instructions dispelled any
prejudice flowing from Mr. Banda’s failure to offer what could have been, at
best, a meager closing. The court told that jury that, during deliberations,
“you may find inconsistencies in the evidence that was presented. Even
actual contradictions of witnesses don’t necessarily mean that
anyone was testifying in a willfully false manner.” N.T. Trial, 8/30/13,
at 188 (emphasis added). It noted that poor memory was not uncommon
and could cause a witness to remember events incorrectly. The trial court
continued, “[I]t’s also true that two people witnessing the same incident
may see or hear it differently.” Id. at 188-89.
After informing the jury that it was tasked with attempting to reconcile
conflicting statements, the court said that, if the jury decided that “there is a
real, a genuine and an irreconcilable conflict of testimony, it’s your function
to determine which, if any, of the conflicting and contradictory statements
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you will believe.” Id. at 189. After outlining the factors that a jury should
consider in assessing credibility, the court observed that “the defendant took
the stand as a witness in this case.” Id. at 190. It continued: “In
considering the defendant’s testimony, you’re to follow the general
instructions I just gave you as to judging the credibility of the witness. But I
have to caution you, you should not disbelieve the defendant’s
testimony merely because he’s the defendant.” Id. at 190-91
(emphasis added). The court then admonished the jury that, if it concluded
that “any witness testified falsely about a material point, . . . you may for
that reason alone choose to disbelieve the rest of his testimony, but you’re
not required to do so,” and it indicated that other parts of that witness’s
testimony could be credited. Id. at 191 (emphasis added).
The trial court specifically examined the testimony offered by K.R. It
noted that K.R.’s testimony given that day differed from the testimony “he
gave yesterday under oath,” thereby subjecting him to potential prosecution
for perjury. Id. at 192. It outlined the elements of perjury and noted that
the district attorney had agreed not to prosecute K.R. for that crime. The
trial court then stated to the jury: “You should, however examine
closely and carefully and receive with caution the testimony of any
witness who you find either presently or previously committed
perjury.” Id. at 192 (emphasis added). The court then proceeded to
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instruct the jury on how to assess the credibility of the expert witnesses
offered at trial and to resolve the conflicts in their testimony.
The trial court indicated that a lawyer’s argument was not to be
considered as evidence, gave an extensive definition of reasonable doubt
and the burden of proof, and outlined the elements of the crimes. It next
observed that it was “entirely possible for a single witness to give truthful
and accurate testimony and that his or her testimony may be believed even
though a greater number of witnesses of apparently equal reliability
contradicted him or her.” Id. at 212.
These statements were disseminated by the trial court itself rather
than constituting argument made by a lawyer who was representing
Appellant. In light of the trial court’s pointed instructions, we conclude that
Appellant failed to establish a reasonable probability that his counsel could
have offered a summation that would have resulted in an acquittal,
especially since Appellant neglects to outline any specific argument that
would have refuted the overwhelming evidence of his guilt.
Appellant’s second position is that his trial counsel were ineffective for
not cross-examining K.R. with his statements that were inconsistent with his
August 30, 2013 rebuttal testimony.1 In this respect, we note the following.
____________________________________________
1 The Commonwealth maintains that this position is waived as it was not included in his pro se or counseled PCRA petitions. Commonwealth’s brief at (Footnote Continued Next Page)
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The jury was fully aware that K.R. had testified on August 29, 2013, in direct
contradiction to his testimony on August 30, 2013. Likewise, the record
establishes that the jury knew about K.R.’s two statements to police,
including the written one, where he specifically identified Brian Jr. as the
driver. The Commonwealth actually examined K.R.’s prior inconsistent
written statement during its direct examination of that rebuttal witness.
Appellant could not have been prejudiced by counsel’s failure to adduce
evidence patently obvious due to the state of events or already revealed by
the Commonwealth.
Appellant’s third contention is that trial counsel was ineffective for not
obtaining DNA testing of what could have been a blood stain found on the
driver’s side of the truck after the crash. Events pertinent to this issue
occurred on August 22, 2013, immediately after denial of Appellant’s motion
to dismiss his case under Pa.R.Crim.P. 600. A question arose as to whether
Appellant desired further testing of a stain found on the driver’s side of the _______________________ (Footnote Continued)
12. See Pa.R.Crim.P. 902(B) (“[f]ailure to state such a ground [for relief] in the [PCRA] petition shall preclude the defendant from raising that ground in any proceeding for post-conviction collateral relief”). However, trial counsel was questioned, without Commonwealth objection, as to why he did not cross-examine K.R., N.T. PCRA hearing, 6/27/16, at 16-20, and the PCRA court addressed this position. Trial Court Opinion, 8/3/16, at 9. Hence, we prefer to address the allegation on the merits. See Commonwealth. v. Elliott, 80 A.3d 415, 430 (Pa. 2013) (noting that issue was waived because it was not contained in appellant’s PCRA petitions, but proceeding to address position on the merits).
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truck. A previously-scheduled trial was continued in order to have that stain
tested. N.T. Rule 600 Hearing, 8/22/13, at 10. A swab of the stain was sent
to a state laboratory, but the returned report was ambiguous as to whether
the stain was blood. It stated in one section that the “there was no blood on
the swab,” but, in another paragraph, the report said, “there was blood.”
N.T. Rule 600 Hearing, 8/22/13, at 9.
The trial court ascertained that the Commonwealth was ready to
proceed immediately with trial, and it asked Mr. Banda if the report affected
his desire to go forward. At that point, Mr. Banda said, “I would like to go to
trial even if there is not a final determination of that spot as being blood or
not.” Id. The court responded: “[L]et’s be forthright here. Is there
something you think that should be, there should be a further analysis or
not? If there is, what are we going to do? If there isn’t, we’re going to go
forward with the trial.” Id. When counsel refused to either admit or deny
that further testing was needed, the trial court said that, if counsel believed
further testing was not in order, the trial would proceed. Id. at 11. The
parties immediately started to select a jury.
At the PCRA hearing, Mr. Banda explained that he did not obtain
additional testing since he was unsure as to whether it would exonerate
Appellant and since Appellant did not want to delay the trial further. N.T.
PCRA Hearing, 6/27/16, at 15. The PCRA court herein credited trial
counsel’s explanation for not asking to continue trial to obtain further testing
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of the stain. As the record supports the trial court’s credibility determination
and counsel articulated a reasonable strategy for not getting more testing on
the stain, we reject Appellant’s stance that Mr. Banda was ineffective in this
Appellant’s fourth position is that trial counsel was ineffective for not
impeaching Officer Shaun Gregory. We reject this position for the following
reasons outlined by the PCRA court:
Petitioner argues that at his suppression hearing, Officer Shaun Gregory of the East Conemaugh Police Department testified that the Petitioner gave him a physical copy of his driver's license, while at trial he told the jury that Petitioner verbally gave him identifying details such as his name and Social Security number. Petitioner argues that this inconsistency should have been used to impeach the officer. The following exchange between Assistant District Attorney Eric Hochfield and Officer Gregory occurred at the suppression hearing:
Q. Do you recall if he ever provided you with any identification or insurance at that time?
A: He provided me with identification. I did get an operator number from him.
Q: Would that have been at the onset of the conversation you had with him?
A: That would have been after, yeah, after I clarified who was the driver.
Transcript of Suppression Hearing, 7/29/16, p. 12, II. 18-25.
Later on cross examination, the officer was questioned by Attorney Banda as to whether the Petitioner pulled his license from his wallet and officer responded that he could not recall. At trial, the officer testified merely that the Petitioner was
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"identified" and that he gave his name and date of birth. T.T 8/27/13, pp. 13-14.
While we note the slight difference in testimony we are not convinced that the inclusion of this minor consistency would have had any impact on the outcome of the trial. As previously noted, the case hinged on the testimony of [K.R.] For these reasons we find that the Petitioner has failed to meet the above- standard for post-conviction relief.
Trial Court Opinion, 8/3/16, at 11.
Appellant’s fifth averment on appeal is that trial counsel was
ineffective for failing to investigate text messages that his son sent to his
girlfriend on the night of the accident. Appellant claimed at the PCRA
hearing that the text messages contained “helpful evidence.” N.T. PCRA
Hearing, 6/27/16, at 27. Both Mr. Banda and Mr. Gleason testified that they
had no recollection of discussing text messages with Appellant. Id. at 7, 15.
We conclude that this claim is completely unsupported. Appellant did not
present any testimony from Brian Jr.’s girlfriend about text messages sent
by Brian Jr., he did not obtain Brian Jr.’s cellular telephone, which had been
secured by police, and he did not obtain records from the cell phone service
provider verifying the existence of text messages. It is established that a
PCRA petitioner, to obtain relief, must both plead and prove that counsel
was ineffective. Williams, supra; 42 Pa.C.S. § 9543(a). We concur with
the PCRA court that Appellant cannot prevail on this position due to the
absence of any proof that these text messages existed.
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Appellant’s sixth allegation of error pertains to the fact that, at
sentencing, Mr. Gleason incorrectly indicated that the mandatory minimum
sentence for homicide by vehicle while DUI is five years when the mandatory
minimum is actually three years. See 75 Pa.C.S. § 3735 (a) (the sentencing
court shall order a person convicted of homicide by vehicle while DUI “to
serve a minimum term of imprisonment of not less than three years”).
Herein, Mr. Gleason did misstate that this crime carried a mandatory
minimum of five years, which he admitted at the PCRA hearing. However,
as Appellant acknowledges, the sentencing court did not impose any
mandatory minimum sentences. Rather, it imposed standard range
sentences pursuant to the sentencing guidelines. N.T. Sentencing, 9/25/13,
at 12 (“And those [sentences] are all standard range sentences, there are no
aggravated range sentences, but they’re the top end of the standard
range.”).
Appellant posits that, absent the misstated mandatory minimum, the
court might have sentenced him in the mitigated range. Appellant’s brief at
19-20. The PCRA court, which also sentenced Appellant, discounted this
position, stating that “nothing that Attorney Gleason said at sentencing
influenced the length of the Court’s term of incarceration.” Trial Court
Opinion, 8/3/16, at 10. Hence, Appellant did not establish that the outcome
of the sentencing hearing was impacted by Mr. Gleason’s error and this
claim of ineffective assistance of counsel fails.
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Appellant’s final position is that trial counsel was ineffective for
neglecting to object to the trial court’s refusal to merge, for sentencing
purposes, his convictions for homicide by vehicle and homicide by vehicle
while DUI. Appellant concedes that, in Commonwealth v. Collins, 764
A.2d 1056 (Pa. 2001), our Supreme Court held that the offenses of homicide
by vehicle and homicide by vehicle while DUI do not merge for sentencing
purposes. He presents the issue to this Court “to potentially preserve the
issue for appeal to Pennsylvania Supreme Court for reconsideration[.]”
Appellant’s brief at 20. Hence, we do not consider this claim further.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/26/2017
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