Com. v. Shroyer, L.

• Court: Superior Court of Pennsylvania
• Decided: February 24, 2023
• Docket: 88 WDA 2022
• Status: Unpublished

Opinion

J-S36038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LARRY SHROYER : : Appellant : No. 88 WDA 2022

Appeal from the PCRA Order Entered November 22, 2021 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000620-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LARRY SHROYER : : Appellant : No. 89 WDA 2022

Appeal from the PCRA Order Entered November 22, 2021 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000628-2017

BEFORE: STABILE, J., KING, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: February 24, 2023

Appellant, Larry Shroyer, appeals pro se from the orders of the Court of

Common Pleas of McKean County (trial court) that dismissed his first petitions

filed under the Post Conviction Relief Act (“PCRA”) in two criminal cases.1 For

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* Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541–9546. J-S36038-22

the reasons set forth below, we affirm the trial court’s ruling rejecting one of

the grounds asserted in Appellant’s PCRA petitions, but vacate in part the trial

court’s denial of the PCRA petitions and remand for further proceedings to

address three claims of PCRA counsel ineffectiveness that Appellant has raised

in this appeal.

This case arises out of a fatal drug overdose suffered by George Duke,

Jr. (Decedent) and the supplying of drugs to Decedent in 2015. On November

10, 2017, Appellant was charged with the offenses of aggravated assault,

involuntary manslaughter, reckless endangerment, possession with the intent

to distribute (PWID) heroin, PWID designer drug, possession of heroin,

conspiracy to commit aggravated assault, conspiracy to commit involuntary

manslaughter, conspiracy to commit PWID heroin, and conspiracy to commit

PWID designer drug.2 On November 16, 2017, Appellant was charged in a

second criminal docket with the offense of flight to avoid apprehension.3

The charges in both dockets were consolidated for trial and were tried

to a jury from October 28 to 31, 2019. Before the case went to the jury, the

trial court granted Appellant a judgment of acquittal on the aggravated assault

charge and the Commonwealth withdrew the charges of conspiracy to commit

218 Pa.C.S. § 2702(a)(1), 18 Pa.C.S. § 2504(a), 18 Pa.C.S. § 2705, 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(36), 35 P.S. §780-113(a)(16), and 18 Pa.C.S. § 903, respectively.

3 18 Pa.C.S. § 5126(a).

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aggravated assault and conspiracy to commit involuntary manslaughter. On

October 31, 2019, the jury found Appellant guilty of PWID heroin, PWID

designer drug, possession of a controlled substance (heroin), conspiracy to

commit PWID heroin, conspiracy to commit PWID designer drug, reckless

endangerment, and flight to avoid apprehension. N.T. Trial, 10/31/19, at 237.

The jury deadlocked on the involuntary manslaughter charge and the trial

court declared a mistrial on that charge. Id. at 238-39.

On December 5, 2019, the trial court sentenced Appellant to an

aggregate sentence of 4 years 5 months to 8 years 10 months’ incarceration.

Sentencing Order at 1-2. The trial court in its sentence also ordered Appellant

to pay costs of prosecution of $12,010.4 Id. at 3. Appellant filed a post

sentence motion and the Commonwealth moved to amend Appellant’s

sentence to add another $4,160 in costs of prosecution. The trial court denied

Appellant’s post sentence motion, but granted the Commonwealth’s motion

and on December 13, 2019 modified Appellant’s sentence to order Appellant

to pay an additional $4,160. Trial Court Order, 12/11/19; Trial Court Order,

4 Although the trial court and Appellant use the term “restitution” to refer to this portion of Appellant’s sentence, it is clear from the record that this portion of Appellant’s sentence is in fact costs of prosecution, not restitution. Commonwealth v. Baney, 187 A.3d 1020, 1024 (Pa. Super. 2018). On remand, which we order below, we direct the trial court to amend its sentencing order and order of December 13, 2019 to state that Appellant is ordered to pay the amounts in question as costs of prosecution, not restitution.

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12/13/19. Appellant appealed and this Court affirmed Appellant’s judgment

of sentence on August 19, 2020. Commonwealth v. Shroyer, 240 A.3d 177

(Pa. Super. 2020) (unpublished memorandum). Appellant did not file any

petition for allowance of appeal.

On April 19, 2021, Appellant filed timely first PCRA petitions in both

dockets and the trial court appointed PCRA counsel for Appellant, who filed an

amended PCRA petition in both dockets. In these amended PCRA petitions,

Appellant asserted the following four grounds for relief: 1) that trial counsel

was ineffective for failing to request a DNA expert and for failing to challenge

the Commonwealth’s DNA expert; 2) that trial counsel was ineffective for

failing to request a jury instruction to separate the evidence of guilt from the

two dockets; 3) that trial counsel was ineffective for failing to obtain

transcripts of prior testimony of Appellant’s co-defendants who pled guilty to

conspiring with Appellant for use to impeach their testimony at his trial; and

4) that the costs portion of Appellant’s sentence was illegal because it included

expenses related to Decedent’s death and he was not convicted of causing the

death.

On October 1, 2021, the trial court held a hearing on Appellant’s PCRA

petitions. At the beginning of the PCRA hearing, Appellant’s PCRA counsel

requested a continuance and funds to obtain a DNA expert and the trial court

denied that request. N.T. PCRA at 5-7. The hearing proceeded and Appellant’s

trial counsel was the only witness who testified. No documents were

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introduced in evidence at the PCRA hearing. On November 22, 2021, the trial

court denied Appellant’s PCRA petitions in their entirety. Appellant filed timely

pro se appeals in both dockets,5 which this Court consolidated sua sponte, and

on February 18, 2022, filed an application in this Court to represent himself in

these appeals. This Court remanded the cases to the trial court to determine

whether PCRA counsel still represented Appellant and to hold a Grazier6

hearing if Appellant was entitled to counsel but wished to proceed pro se. On

remand, the trial court held a Grazier hearing and determined that Appellant

wished to represent himself on appeal and that his waiver of counsel was

knowing, voluntary, and intelligent. Trial Court Order, 3/23/22.

In these appeals, Appellant raises five issues: 1) that PCRA counsel was

ineffective in litigating the DNA expert claim, 2) that the trial court erred in

rejecting the claim in his PCRA petitions that his costs of prosecution sentence

was illegal, 3) that PCRA counsel was ineffective in litigating the co-defendant

transcript claim, 4) that PCRA counsel was ineffective in failing to assert a

5 The Commonwealth’s contention that the appeals were untimely is without merit. Although the notices of appeal were received by the trial court on December 30, 2021, under the prisoner-mailbox rule, a document filed by a pro se defendant who is incarcerated is considered filed on the date that he delivered it to prison authorities for mailing, regardless of when it is received. Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019). The record shows that Appellant delivered the notices of appeal to prison authorities for mailing on December 21, 2021, within the 30-day appeal period. See Prison Postage Slips attached as Exhibits to Docketing Statements in both appeals. 6 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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claim that trial counsel was ineffective for failing to seek a mistrial or

substitution of alternate jurors when jurors fell asleep at trial, and 5) that

PCRA counsel was ineffective in failing to assert a claim that trial counsel was

ineffective because he had a conflict of interest. Appellant’s Brief at 4-5.7

Because Appellant’s second issue does not involve claims of ineffectiveness of

PCRA counsel, we address that issue first.

Our review of the denial of a PCRA petition is limited to determining

whether the record supports the court’s findings and whether the court’s

decision is free of legal error. Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015); Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa. Super.

2020) (en banc). We must view the court’s findings and the evidence of record

in a light most favorable to the prevailing party, and the court’s credibility

determinations, if supported by the record, are binding on this Court. Mason,

130 A.3d at 617; Johnson, 236 A.3d at 68; Commonwealth v. Widgins,

29 A.3d 816, 820 (Pa. Super. 2011).

The trial court found that Appellant was not entitled to relief on his claim

that the costs portion of his sentence was illegal because he failed to show

that the costs that he was ordered to pay included expenses incurred solely

7 Appellant’s statement of issues sets these forth as seven issues. However, both the first and third issues that Appellant lists relate to his DNA expert claim and assert ineffectiveness of PCRA counsel with respect to that claim and Appellant’s fourth and fifth issues both assert ineffectiveness of PCRA counsel with respect to his co-defendant transcript claim. We accordingly have restated Appellant’s issues as the above five issues.

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with respect to Decedent’s death, as opposed to expenses of proving the drug

offenses of which Appellant was convicted. Trial Court Opinion and Order at

7-8. The trial court noted that the most that Appellant showed was that the

label “DEATH INVESTIGATION” appeared on some material, but concluded

that this did not show that the expenses related solely to the death because

the investigation into Decedent’s death and the drugs found with him was an

intermingled investigation. Id. at 8.

These findings are supported by the record. Appellant did not introduce

any documents on which the costs order was based at the PCRA hearing. Trial

counsel was questioned on this subject and testified that he believed that he

received a breakdown of the costs and that none of those costs could be

attributed to the charges that were dismissed or as to which a mistrial was

declared. N.T. PCRA at 23-27. The only evidence in the record to which

Appellant points as showing that the costs included expenses related solely to

Decedent’s death is the fact that the Commonwealth’s DNA expert’s bill is

labeled “DEATH INVESTIGATION.” Appellant’s Brief at 22. That, however,

does not show that any expense that Appellant was ordered to pay was related

to charges of which Appellant was not convicted. To the contrary, the DNA

expert’s testimony, for which this bill was incurred, concerned whether

Appellant’s DNA was on packets of drugs, which relates to the PWID charges

of which he was convicted, not to the cause of Decedent’s death or solely to

the issue of whether Appellant caused Decedent’s death. N.T. Trial, 10/29/19,

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at 118-20, 123-24, 126-34. Because the trial court’s finding that Appellant

did not prove his claim concerning costs of prosecution is supported by the

record, Appellant is not entitled to relief on this issue.

Appellant’s remaining issues are all claims of ineffectiveness of PCRA

counsel raised for the first time in this appeal, after PCRA counsel no longer

represented him. These claims are properly before us. In Commonwealth

v. Bradley, 261 A.3d 381 (Pa. 2021), our Supreme Court held that a

defendant may raise claims of ineffective assistance of PCRA counsel for the

first time during an appeal from the denial of a timely filed first PCRA petition

where the PCRA counsel in question represented the defendant until the

appeal. 261 A.3d at 401-05.

To be entitled to relief under the PCRA on a claim of ineffective

assistance of counsel, the convicted defendant must prove: (1) that the

underlying claim is of arguable merit; (2) that counsel’s action or inaction had

no reasonable basis; and (3) that he suffered prejudice as a result of counsel’s

action or inaction. Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa.

2019); Mason, 130 A.3d at 618; Commonwealth v. Selenski, 228 A.3d 8,

15 (Pa. Super. 2020). The defendant must satisfy all three prongs of this test

to obtain relief on an ineffective assistance of counsel claim. Montalvo, 205

A.3d at 286; Mason, 130 A.3d at 618; Johnson, 236 A.3d at 68. In addition,

because Appellant is asserting a layered claim that PCRA counsel was

ineffective with respect to claims of ineffectiveness of trial counsel, he must

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satisfy the three prongs of the ineffectiveness test with respect both PCRA

counsel and trial counsel. Montalvo, 205 A.3d at 286; Commonwealth v.

McGill, 832 A.2d 1014, 1022-23 (Pa. 2003).

The Supreme Court recognized in Bradley that because claims of

ineffectiveness of PCRA counsel raised for the first time on appeal have not

been addressed by the lower court, this Court must determine whether the

record is adequate to address those claims and consider whether they should

be remanded for further development of the record. 261 A.3d at 402. As the

Supreme Court explained:

In some instances, the record before the appellate court will be sufficient to allow for disposition of any newly-raised ineffectiveness claims. However, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter. Consistent with our prior case law, to advance a request for remand, a petition would be required to provide more than mere boilerplate assertions of PCRA counsel’s ineffectiveness[;] however, where there are material facts at issue concerning claims challenging counsel’s stewardship and relief is not plainly unavailable as a matter of law, the remand should be afforded[.]

Id. (citations, brackets, and quotation marks omitted). Applying this guidance

to Appellant’s four claims of ineffectiveness assistance of PCRA counsel, we

conclude that remand for further development of the record is necessary with

respect to three of these claims.

The trial court did address two of the claims as to which Appellant

asserts ineffective assistance of PCRA counsel, his DNA expert claim and his

claim concerning transcripts of co-defendants. These rulings, however, do not

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resolve or preclude the claims of ineffectiveness of PCRA counsel that

Appellant asserts in this appeal.

The trial court denied Appellant’s DNA expert claim on the ground that

no defense DNA expert was necessary because trial counsel was able without

an expert to show through cross-examination that Appellant’s DNA could have

gotten on the drug packets indirectly if the packets touched a surface that

Appellant had touched. Trial Court Opinion and Order at 5-6. But that was

not the sole issue on which Appellant’s PCRA petition asserted that a defense

expert was necessary. Appellant’s PCRA claim on this issue was that trial

counsel was ineffective for failing to obtain a DNA expert who would have

testified that Commonwealth’s expert’s methods were too unreliable to reach

any conclusion that DNA found on the drug packets was Appellant’s DNA. N.T.

PCRA at 7; Appellant’s PCRA Brief at 1-2. Expert testimony that it could not

be concluded that Appellant’s DNA was on the drug packets at all is of a

substantially different and greater value in defending against the PWID crimes

of which Appellant was convicted than merely showing that it was possible

that his DNA could have gotten on the drug packets without him handling

them.

In addition, Appellant’s DNA expert claim and claim of ineffectiveness of

PCRA counsel in litigating this claim raise issues that require an opportunity

to develop a record and are not mere boilerplate. A positive link using

accepted DNA analysis is generally based on odds of at least millions or billions

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to one. Commonwealth v. McClellan, 178 A.3d 874, 882 (Pa. Super. 2018)

(Ott, J., concurring). The Commonwealth’s DNA expert’s opinion that

Appellant’s DNA was on the packets, however, was based on a range of

probability of only 1.02 thousand to 1 to 28.5 thousand to 1, in contrast to

her testimony that there was 2.6 nonillion (26 followed by 29 zeros) to 1 or

greater probability that the other DNA found on the packets was Decedent’s.

N.T. Trial, 10/29/19, at 128-29, 131, 134-36. Under these circumstances, it

cannot be concluded that Appellant, if given the opportunity to do so, could

not show that PCRA counsel and trial counsel could have obtained an expert

to challenge the reliability of the Commonwealth’s DNA expert. If Appellant

shows that such an expert could be obtained, PCRA counsel’s failure to seek

such an expert before the day of the PCRA hearing could constitute ineffective

assistance of PCRA counsel that denied Appellant the opportunity to prove this

claim for PCRA relief. Remand is therefore necessary to permit development

of a record on this issue.

Remand is likewise necessary on the issue of PCRA counsel’s

ineffectiveness in litigating the co-defendant transcript issue. The trial court

rejected the claim that trial counsel was ineffective for failing to obtain

transcripts of the co-defendants to impeach their testimony on the ground

that the transcripts were not introduced in evidence at the PCRA hearing. Trial

Court Opinion and Order at 7. This determination does not negate Appellant’s

claim that PCRA counsel was ineffective on this issue, which is based on that

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very fact on which the trial court based its denial of the claim, PCRA counsel’s

failure to obtain and present the transcripts that were necessary to prove this

PCRA claim. Moreover, the record in these appeals is not sufficient to permit

a determination whether this claim of PCRA counsel ineffectiveness has merit.

Trial counsel testified that he did not know what statements the co-defendants

made at their plea hearings and that he did not present any evidence to

impeach the co-defendants. N.T. PCRA at 11-14. There is nothing in the

record from which it can be determined whether the transcripts had any

inconsistent statements or impeachment value, as none of those transcripts

are in this record.

Appellant’s remaining two claims involve failure of PCRA counsel to raise

other claims of trial counsel ineffectiveness, neither of which has been

addressed at all by the trial court. We conclude that the first of these claims

of PCRA counsel ineffectiveness requires remand, but that the second does

not.

Appellant’s claim that PCRA counsel should have raised a trial counsel

ineffectiveness claim with respect to jurors sleeping during trial involves

factual issues that require further development of the record before they can

be addressed. Appellant has shown that there is some evidence that one or

more of the jurors was falling asleep on at least two occasions, that the trial

judge in response took a break and instructed the jurors that they needed to

stay awake, and that trial counsel did not seek any further remedy for that

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situation on those two occasions. N.T. Trial, 10/29/19, at 124-26; N.T. Trial,

10/31/19, at 151-52. It cannot be determined from the record before us

whether the same juror or jurors were falling asleep, how long they were

inattentive, or whether the measures taken by the trial judge solved the

problem. The Commonwealth’s sole response on this issue is to claim that no

jurors were asleep, Appellee’s Brief at 20, an assertion that appears to be

contradicted by the trial judge’s statement on the record that “jurors are

sleeping.” N.T. Trial, 10/29/19, at 124.

In contrast, the record is sufficient to address Appellant’s claim that

PCRA counsel was ineffective for failing to raise a claim for relief based on trial

counsel conflict of interest. In this claim, Appellant asserts that he had a

meritorious claim of ineffective assistance of trial counsel because trial counsel

also represented a jailhouse informant who testified at trial that while he and

Appellant were jailed on the same cellblock, Appellant bragged about selling

drugs to Decedent. The conflict issue was fully disclosed and addressed at

trial and the record shows that counsel did not knowingly undertake any

representation that conflicted his representation of Appellant. Rather, the

conflict arose on the eve of trial when the witness, whom trial counsel

represented in an unrelated matter and who trial counsel had no reason to

believe had any connection or knowledge relevant to Appellant’s case,

reported to the Commonwealth that Appellant had made the admissions to

which he testified. N.T. Trial, 10/29/19, at 239-42.

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This sudden event, in which trial counsel had no involvement and which

occurred so late that withdrawal by trial counsel would have prejudiced

Appellant, did create a conflict because trial counsel was placed in a position

of cross-examining a witness who happened to also be a client. To show

ineffectiveness of counsel based on a conflict of interest, however, a defendant

must show both that counsel actively represented conflicting interests and

that the conflict of interest adversely affected counsel’s performance.

Commonwealth v. Tharp, 101 A.3d 736, 754 (Pa. 2014); Commonwealth

v. Collins, 957 A.2d 237, 251 (Pa. 2008); Commonwealth v. Davis, 225

A.3d 582, 589 (Pa. Super. 2019). Appellant’s conflict claim fails to satisfy the

second of these requirements. The trial transcript shows that trial counsel

fully cross-examined the witness, bringing out that the witness had not

reported that Appellant made the statements when they occurred and that he

reported Appellant’s admissions only after Appellant had made a complaint

that caused the witness to be removed from the cellblock. N.T. Trial,

10/29/19, at 252-54. Since Appellant has not shown that trial counsel was

ineffective in this regard, his claim of PCRA counsel ineffectiveness for failure

to assert this claim necessarily fails. McGill, 832 A.2d at 1022-23.

Because Appellant has not demonstrated that the trial court erred in

rejecting his claim for PCRA relief with respect to the costs portion of his

sentence, we affirm its denial of that claim. Appellant, however, has asserted

claims of ineffective assistance of PCRA counsel concerning failure to obtain a

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DNA expert, failure to obtain transcripts for cross-examination, and jurors

falling asleep during his trial that require further development of the record

before they can be addressed. Accordingly, we vacate the trial court’s orders

insofar as they deny Appellant’s PCRA petitions in their entirety and remand

for further proceedings to address those three ineffectiveness claims.

Orders affirmed in part and vacated in part. Case remanded.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/24/2023

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