Com. v. Stanton, S.

• Court: Superior Court of Pennsylvania
• Decided: May 24, 2024
• Docket: 1625 MDA 2023
• Status: Unpublished

Opinion

J-S14034-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SCOTT MICHAEL STANTON : : Appellant : No. 1625 MDA 2023

Appeal from the PCRA Order Entered November 1, 2023 In the Court of Common Pleas of Perry County Criminal Division at No(s): CP-50-CR-0000272-2017

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED: MAY 24, 2024

Scott Michael Stanton (Appellant) appeals from the order denying his

first, timely petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

On May 8, 2017, police officers approached Appellant to serve two

outstanding bench warrants. Appellant attempted to flee. When officers

caught up with him, Appellant fought and kicked, attempted to take one

officer’s taser, then reached for another officer’s firearm. The Commonwealth

subsequently charged Appellant with two counts each of aggravated assault,

simple assault, disarming a law enforcement officer, and disorderly conduct; J-S14034-24

and one count each of resisting arrest, flight to avoid apprehension, and

possession of drug paraphernalia.1

On October 23, 2017, Appellant, represented by court-appointed conflict

counsel, Brittany Shetter, Esquire, filed a motion in limine to exclude

testimony by Corrections Officer Matthew McCann (C.O. McCann) concerning

Appellant’s statements to him.

Allegedly, [Appellant] stated, “I am already going away for a long time, I have warrants in other counties, that is why I tried to kill those two cops. If I would have gotten their gun[,] I would have had two bodies on me; or at least get them to kill me, ya know, suicide by cop.” See Incident Report attached as Exhibit “A.”

Motion in Limine, 10/23/17, ¶ 7; see also PCRA Court Opinion, 11/1/23, at 2

(unnumbered) (“C.O. McCann reported [to the sheriff’s office] that [Appellant]

indicated that he intended to seriously harm or kill the deputies if he had

gained control over either the taser or the firearm.”). At the start of trial, the

trial court considered and denied Appellant’s motion in limine. See N.T.,

1/31/19, at 5.

This Court previously explained the additional pertinent history of this

case:

With [Appellant’s] jury trial scheduled for Tuesday, October 31, 2017, his court-appointed conflict counsel, [Attorney] Shetter, … informed [Appellant] on Friday, October 27, 2017, that she had just learned the prosecution received a recording of [Appellant] speaking to other inmates regarding his intended testimony for his case. Attorney Shetter immediately filed a motion to dismiss ____________________________________________

1 18 Pa.C.S.A. §§ 2702(a)(2), 2701(a)(1), 5104.1, 5503(a)(1), 5104, 5126;

35 P.S. § 780-113(a)(32).

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charges asserting that the recording was unlawful, and, if deemed admissible, constituted unfair surprise by giving the Commonwealth new potentially incriminating evidence for trial.

On Monday, October 30, 2017, during a telephonic conference, the Commonwealth assured Attorney Shetter and the court that it would not use the recording at trial. Accordingly, concluding that a suppression hearing was not needed[,] and the issue was resolved for purposes of the present trial, the court denied counsel’s motion to dismiss.

On Tuesday, October 31, 2017, the morning of Appellant’s jury trial, Appellant addressed the court and requested a continuance to obtain new, privately retained counsel. When asked why he wished to do so, Appellant stated generally that he believed [Attorney Shetter] mishandled the motion to dismiss and failed to involve him sufficiently during the entirety of pretrial proceedings.

Commonwealth v. Stanton, 237 A.3d 1042, 1806 MDA 2019 (Pa. Super.

2020) (unpublished memorandum at 2) (some capitalization modified). After

discussing Appellant’s concerns about Attorney Shetter’s representation, the

trial court denied Appellant’s motion for a continuance. See id. (unpublished

memorandum at 2-7).

A jury found Appellant not guilty of possession of drug paraphernalia,

but guilty of all other counts. On November 22, 2017, the trial court sentenced

Appellant to an aggregate 7 to 16 years in prison. On May 16, 2018, Appellant

filed a pro se motion to reinstate his post-sentence and direct appeal rights,

nunc pro tunc, which the court treated as a timely first PCRA petition. Attorney

Shetter subsequently filed a petition to withdraw, explaining Appellant had

indicated his intention to raise ineffective assistance of counsel claims. The

PCRA court appointed William M. Shreve, Esquire, to represent Appellant. The

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PCRA court held a hearing. On December 18, 2018, the PCRA court granted

Appellant’s PCRA petition and reinstated his direct appeal rights.

This Court subsequently affirmed Appellant’s judgment of sentence.

See id. (unpublished memorandum). Appellant did not seek allowance of

appeal in the Pennsylvania Supreme Court.

On May 6, 2021, Appellant, pro se, filed the instant timely PCRA petition

claiming Attorney Shetter was ineffective. The pro se petition was forwarded

to Attorney Shreve, who filed a Turner/Finley2 “no-merit” letter and a motion

to withdraw from representation. On February 25, 2022, the PCRA court

granted Attorney Shreve’s motion to withdraw from representation and issued

a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s PCRA petition.

Appellant filed a pro se response, asserting he had never received a copy of

counsel’s no-merit letter or motion to withdraw.

On March 23, 2022, the PCRA court issued an order granting Appellant

an additional 30 days to file a pro se amended PCRA petition. Appellant, pro

se, filed an amended PCRA petition, again challenging Attorney Shetter’s

effectiveness.3

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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3 We recognize Appellant filed his amended PCRA petition on April 27, 2022,

after the court-ordered deadline.

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The PCRA court scheduled an evidentiary hearing on Appellant’s

petition. Thereafter, Appellant filed a motion for appointment of counsel. The

PCRA court appointed new counsel to represent Appellant during the PCRA

proceedings. The court continued the evidentiary hearing several times to

allow appointed PCRA counsel time to prepare.

The PCRA court held an evidentiary hearing on December 2, 2022, at

which Attorney Shetter and Appellant testified. On November 1, 2023, the

PCRA court denied Appellant’s PCRA petition. This timely appeal followed.

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant raises the following issue for review:

Did the [PCRA] court abuse[ its] discretion in [] finding that no error of law or abuse of discretion occurred in denying Appellant’s requested relief under the [PCRA] petition for ineffective assistance of counsel?

Appellant’s Brief at 7.4

“Our standard of review in PCRA appeals is limited to determining

whether the findings of the PCRA court are supported by the record and free

from legal error.” Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009).

In his first five issues, Appellant claims Attorney Shetter rendered

ineffective assistance. The law presumes that counsel is effective, and the

4 Despite including a single question in his statement of questions involved,

Appellant’s brief includes six distinct arguments.

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appellant bears the burden of proving otherwise. Commonwealth v.

Bennett, 57 A.3d 1185, 1195 (Pa. 2012). Appellant must demonstrate

(1) the underlying legal claim is of arguable merit; (2) counsel’s action or inaction lacked any objectively reasonable basis designed to effectuate his client’s interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel’s error.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citation

omitted). Failure to satisfy any prong of this test is fatal to an ineffectiveness

claim. See id.

First, Appellant claims Attorney Shetter ineffectively failed to interview

or subpoena certain witnesses. Appellant’s Brief at 10. Appellant identifies

Jack Frye (his father-in-law); Shaina Stanton (his wife); and Shaina’s friend5

as potential witnesses. Id.

To succeed on an ineffectiveness claim premised on counsel’s failure to

call a potential witness, the petitioner must establish

(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.

5 Appellant does not include the name of his wife’s friend.Additionally, during the PCRA hearing, Appellant identified another unnamed individual—a man who was being held in a neighboring cell at Perry County Prison—as a potential witness. See N.T., 12/2/22, at 22; see also PCRA Court Opinion, 11/1/23, at 6 (unnumbered). On appeal, Appellant does not challenge Attorney Shetter’s failure to interview or present the unnamed man as a witness.

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Johnson, 966 A.2d at 536 (citation omitted). Further, “the PCRA petitioner

must show how the uncalled witnesses’ testimony would have been beneficial

under the circumstances of the case.” Id. (citation and quotation marks

omitted). Moreover, “failure to call a witness is not per se ineffective

assistance of counsel[,] for such decision usually involves matters of trial

strategy.” Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012)

(citation omitted).

The PCRA court addressed and rejected Appellant’s first claim:

[Appellant] established the first four elements of [the Johnson] test as he and Attorney Shetter both … acknowledged the existence of … the witnesses [Appellant] requested. It was indicated that each of these witnesses would have been available had they been called to testify on [Appellant’s] behalf. Attorney Shetter was aware of these witnesses after her discussions with [Appellant,] and none of the witnesses indicated that they were unwilling to testify if called.

However, [Appellant] did not prove the fifth element of the test because the absence of none of these witnesses was so prejudicial as to deny [Appellant] a fair trial. Attorney Shetter testified that she spoke with Mr. Frye prior to trial and, based on that conversation, did not believe that he would have been a particularly useful witness to [Appellant’s] defense. [Attorney Shetter] also stated that she spoke to [Appellant] about her concerns[,] and [Appellant] agreed to not call Mr. Frye to testify. Attorney Shetter testified that she did not recall [Appellant] specifically asking for Shaina to testify but admitted that she did not contact Shaina on the issue of testifying. …

… Even if Mr. Frye or the other witnesses had testified, there is nothing in the record to indicate that any of the witnesses’ testimony would have reasonably altered the outcome of [Appellant’s] trial. Therefore, it is not reasonably probable that the outcome of [Appellant’s] trial would have been different if the witnesses had testified[,] and the absence of their testimony was not so prejudicial as to deny [Appellant] a fair trial.

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PCRA Court Opinion, 11/1/23, at 6-7 (unnumbered) (emphasis added;

citations to record omitted).

The PCRA court’s reasoning is supported by the record, and its

conclusion is sound. Appellant failed to establish the testimony of these

witnesses would have “materially aided him.” Commonwealth v. Johnson,

166 A.3d 1257, 1284 (Pa. 2016) (“A PCRA petitioner cannot succeed on such

a claim if the proposed witness’ testimony would not have materially aided

him. In such a case, the underlying-merit and prejudice prongs of the

ineffective assistance of counsel test logically overlap.”) (citation, quotation

marks, and brackets omitted). Because Appellant has not satisfied the

prejudice prong, i.e., that the outcome of his trial would have been different

if the witnesses had been presented, his first ineffectiveness claim fails.

In his second claim, Appellant argues Attorney Shetter failed to make

evidence available to him until the month of trial, preventing Appellant from

participating in his defense. Appellant’s Brief at 10-11.

Appellant fails to support this argument with citation to and discussion

of relevant legal authority. See Pa.R.A.P. 2119(a) (providing that the

argument shall include “such discussion and citation of authorities as are

deemed pertinent.”); see also Commonwealth v. Tchirkow, 160 A.3d 798,

804 (Pa. Super. 2017) (stating that “[t]his Court will not act as counsel and

will not develop arguments on behalf of an appellant.” (citation and quotation

marks omitted)). Thus, Appellant waived his second claim. See

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Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014)

(concluding that appellant waived his claim by failing to adequately develop

his argument or provide citation to and discussion of relevant authority).6

In his third claim, Appellant contends Attorney Shetter was ineffective

for failing to file a motion for a change of venue and a motion in limine.

Appellant’s Brief at 11-12. Appellant claims he asked Attorney Shetter to

request a change in venue because individuals in the jury pool knew the

sheriff. Id. at 11. Appellant also argues Attorney Shetter failed to file a

motion in limine to preclude the testimony of C.O. McCann. Id. at 11-12.7

As the PCRA court explained, Appellant “raised an oral motion for change

of venue himself on the day of trial.” PCRA Court Opinion, 11/1/23, at 9

(unnumbered). The PCRA court also stated a motion for change of venue

“would have been denied regardless of when [it was] submitted to the court.”

Id. at 10 (unnumbered). The court further reasoned that “simply knowing

the identify of an elected official [the sheriff] does not prove that the jury

[pool] was biased against [Appellant] and in favor of the Commonwealth.” Id.

6 Even if Appellant had adequately developed this issue for review, we would

agree with the PCRA court’s finding that Appellant had sufficient time to review discovery. See PCRA Court Opinion, 11/1/23, at 8-9 (unnumbered).

7 Appellant fails to cite or discuss pertinent legal authority to support his claim.

See Pa.R.A.P. 2119(a); Samuel, supra. Accordingly, we could deem Appellant’s third claim waived for this reason.

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Moreover, contrary to Appellant’s assertion, the record reflects that

Attorney Shetter filed an unsuccessful motion in limine to exclude C.O.

McCann’s testimony. See id. at 10-11 (unnumbered); see also Motion in

Limine, 10/23/17. As Appellant fails to establish his underlying claims have

arguable merit, his third ineffectiveness claim fails.

In his fourth claim, Appellant asserts Attorney Shetter did not

adequately cross-examine witnesses during trial. Appellant’s Brief at 12.

Appellant also claims Attorney Shetter failed to make certain objections during

trial. Id. at 12.

Significantly, Appellant fails to identify any specific failures by Attorney

Shetter. Appellant does not point to portions of testimony during which

counsel’s cross-examination of witnesses was insufficient, nor does he identify

objections Attorney Shetter should have made during trial. Further, Appellant

failed to support his claim with citation to the record or any pertinent legal

authority. Because Appellant has not adequately developed this issue for

review, it is waived. See Pa.R.A.P. 2119(a); see also Samuel, supra.

In his fifth claim, Appellant contends Attorney Shetter was ineffective

for failing to request a mental health evaluation. Appellant’s Brief at 13.

Appellant summarily argues,

[Appellant] indicated that he has several diagnoses such as PTSD from prior incarceration in a State Correctional Institution that triggered a flight o[r] fight response. [Appellant] argues[,] had counsel met with him and discussed the case, this could have been presented to the jury given the nature of the events with the officers.

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Id.

Again, Appellant waived his claim by failing to support his argument with

citation to and discussion of pertinent legal authority. See Pa.R.A.P. 2119(a);

see also Samuel, supra. Moreover, Appellant has not proven, or even

alleged, a reasonable probability that information obtained during a mental

health evaluation would have resulted in an acquittal. See Franklin, 990

A.2d at 797 (stating a PCRA petitioner must establish all three prongs of the

ineffectiveness test). Appellant’s fifth claim merits no relief.

In his final claim, Appellant argues the Commonwealth did not establish

the “serious bodily injury” requirement necessary to sustain his aggravated

assault convictions. Appellant’s Brief at 13. Appellant points out the jury had

requested clarification on that element during deliberations. Id.

Absent any allegation that Attorney Shetter’s action or inaction created

the alleged jury confusion, this claim is nothing more than a challenge to the

sufficiency of the evidence. Sufficiency claims are not cognizable under the

PCRA. See Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super. 2005)

(concluding appellant’s sufficiency claim, without any ineffective assistance of

counsel analysis, was not cognizable under the PCRA); see also 42 Pa.C.S.A.

§§ 9543(a)(2)(i)-(viii) (setting forth the claims of error that may be raised

under the PCRA).

Based upon the foregoing, we affirm the PCRA court’s order denying

Appellant’s PCRA petition.

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Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/24/2024

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