Comm. v. Dugan, P.

• Court: Superior Court of Pennsylvania
• Decided: October 1, 2020
• Docket: 1519 WDA 2019
• Status: Unpublished

Opinion

J-S26020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PATRICK ALAN DUGAN : : Appellant : No. 1519 WDA 2019

Appeal from the PCRA Order Entered September 16, 2019 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000817-2016

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 1, 2020

Patrick Alan Dugan appeals the denial of his request for relief under the

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

the basis of PCRA court’s opinion.

In February 2018, the trial court found Dugan guilty of two counts of

Attempted Homicide; fifteen counts of Aggravated Assault; fifteen counts of

Recklessly Endangering Another Person; and one count of Discharge of a

Firearm into Occupied Structure.1 It sentenced him to a concurrent term of

five to ten years’ incarceration for both counts of Attempted Homicide and

three to six years’ incarceration for the Discharge of a Firearm into Occupied

Structure count. The court imposed no further penalty on the remaining ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 901(a), 2501(a), 2702(a)(1), 2705, and 2707.1(a), respectively. J-S26020-20

convictions. Trial counsel withdrew from representing Dugan, and the court

appointed new counsel, who filed a timely direct appeal. We affirmed the

judgment of sentence in December 2018. Commonwealth v. Dugan, No.

768 WDA 2018, 2018 WL 6735018 (Pa.Super. filed Dec. 24, 2018)

(unpublished memorandum). Dugan did not seek review in the Pennsylvania

Supreme Court.

Dugan filed the instant PCRA petition, his first, in February 2019. The

court appointed counsel who filed an amended PCRA petition raising claims of

ineffective assistance of trial and appellate counsel. The PCRA court held a

hearing at which trial and appellate counsel testified. The PCRA court denied

the PCRA petition and this timely appeal followed.

Dugan raises the following issues before this Court:

1. Whether the PCRA court erred in not finding trial counsel, Blaine Jones, Esq., ineffective for failing to question Trooper Robert C. Reitler, during cross-examination, as to why he did not collect a GSR sample from co- defendant, Zachary Helisek?

2. Whether the PCRA court erred in not finding Attorney Jones ineffective for failing to explain a bench trial to him prior to [Dugan] waiving his right to a jury trial, and for convincing [Dugan] that waiving his right to a jury trial would be in his best interest?

3. Whether the PCRA court erred in not finding Attorney Jones ineffective for failing to cross-examine co- defendant, Zachary Helisek, regarding various inconsistencies in the statements that Zachary Helisek made to police?

4. Whether the PCRA court erred in finding the Fayette County Public Defender's Office ineffective for failing to

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file a petition for allowance of appeal to the Pennsylvania Supreme Court?

Dugan’s Br. at 3 (unnecessary capitalization omitted).

Our standard of review of an order denying PCRA relief is limited to

determining “whether the PCRA court’s determination is supported by

evidence of record and whether it is free of legal error.” Commonwealth v.

Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (citation omitted). Dugan

challenges the effectiveness of trial counsel. We presume counsel was

effective. Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011). Therefore,

Dugan bore the burden of pleading and proving all of the following:

1) the underlying claim has arguable merit;

2) no reasonable basis existed for counsel’s actions or failure to act; and

3) petitioner suffered prejudice as a result of counsel’s error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.

Id. at 373.

The PCRA court denied all of Dugan’s ineffectiveness claims, and we

affirm on the basis of the Pa.R.A.P 1925(a) opinion of the Honorable Linda R.

Cordaro. Dugan’s first claim was that counsel was ineffective for failing to

cross-examine a trooper about why the State Police did not recover gunshot

residue from Dugan’s co-defendant, Zachary Helisek. The PCRA court

explained that it rejected the claim because Dugan had failed to show that

counsel’s action in this regard was unreasonable. See PCRA Ct. Op. filed

9/16/19 at 5. The court pointed out that at the PCRA hearing, trial counsel

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testified that police collected gunshot residue from four individuals at or near

the crime scene at the time of the crime, but Helisek was not one of those

individuals, as police did not apprehend him until a day or two after the crime.

N.T., PCRA Hearing, 8/30/19, at 14, 16.

The court also denied Dugan’s claim that counsel “never once explained

to me the parameters of a bench trial.” N.T., PCRA Hearing, at 28. The PCRA

court denied this claim, citing the Waiver of Jury Trial form that Dugan signed

along with trial counsel. See PCRA Ct. Op. at 3, 5. It also noted that it

conducted an oral colloquy with Dugan where he stated that it was his desire

to waive his right to a jury and have the case heard by the trial judge. Id. at

4. The court also credited the testimony of trial counsel at the PCRA hearing

that “it is his practice to provide his clients with their option of proceeding with

a bench trial or a jury trial.” Id.

The court also explained that Dugan’s claim that counsel rendered

ineffective assistance of counsel by failing to question Helisek about his

inconsistent statements to police was meritless. It noted that the trial

transcript contained 18 pages of trial counsel’s cross-examination of Helisek,

during which counsel asked Helisek about both statements he gave to the

police. See id. at 5-6.

The PCRA court also rejected Dugan’s final claim, which challenged the

effectiveness of appellate counsel. He claimed that appellate counsel was

ineffective for failing to file a petition for allowance of the appeal with the

Pennsylvania Supreme Court. The PCRA court explained that it rejected the

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claim because it did not credit Dugan’s testimony that he asked counsel to

seek review in the Pennsylvania Supreme Court. Id. at 8. The court further

stated that Dugan failed to show that the issue he claimed to want the

Supreme Court to review – a sufficiency challenge – was not frivolous, and

thus not a basis on which to predicate a claim of ineffectiveness for failure to

seek allowance of appeal. Id.

After a review of the parties’ briefs, the certified record, and the relevant

law, we find no abuse of discretion or error in the PCRA court’s denial of relief.

We thus affirm the rejection of Dugan’s PCRA petition on the basis of Judge

Cordaro’s opinion.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/1/2020

-5- Circulated 09/16/2020 10:27 AM�

IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

v.

PATRICKALAN DUGAN,

Defendant. No. 817 of 2016

OPINION Linda R. Cordaro, J.

SUMMARY

Before this Court is an Amended Post-Conviction Relief Act Petition filed by

Defendant, Patrick Alan Dugan. After full consideration of the Hearing held on August

30, 2019, the arguments of counsel, and appropriate case.law, this Court DENIES the

Defendant's requested relief.

BACKGROUND

On February 6, 2018, following a bench trial, Defendant was found guilty of two

counts of Criminal Attempt, Criminal Homicide; fifteen counts of Aggravated Assault; Discharge of a Firearm into Occupied Structure; and fifteen counts ofRecklessly

Endangering Another Person, Defendant was sentenced to five to ten years on each

charge of attempted homicide, to run concurrently, and three tosix years on the

Discharge of a Firearm offense, also to run concurrently. Defendant's trial counsel was

Attorney Blaine Jones, who withdrew his appearance immediately after trial. Thereafter,

Page 1 of 9 this Court appointedthe Fayette County Public Defender's Office to represent the

Defendant on appeal.

An Appeal to the Pennsylvania Superior Court was timely filed, and on December

24, 2018, the Pennsylvania Superior Court issued an Opinion affirmingtheJudgement

of Sentence. Defendant thereafter filed this timely Post-Conviction Relief Act Petition,

andthis Court appointed Attorney James Natale to represent the Defendant. Defendant

alleges ineffective assistance by both his trial counsel, Attorney Blaine Jones; and his

appellate counsel, the Fayette County Public Defender, Attorney Jeffrey Whiteko.

DISCUSSION

Defendant argues that both ofhis previous attorneys provided him with

ineffective assistance of counsel for numerous reasons discussed more fully herein. In

order to succeed on a claim ofineffective assistance, a defendant must establish that the

claim is of arguable merit, that no reasonable trial strategy existed for counsel's action

or inaction, and that the outcome of the proceedings would have been different but for

counsel's failures. Counsel is presumed effective, and it is the defendant's burden to

prove otherwise. Commonwealth v. Daniels, 963 A.2d 409, 427 (Pa. 2009). Defendant contends that trial counsel was ineffective for failing to explain a

bench trial to the. Defendant. With respect to claims involving involuntary jury waivers

due to counsel's ineffectiveness, the defendant must prove actual and not presumed

prejudice. Adefendant has the burden to demonstrate "a reasonable probability that the

result of the waiver proceeding would have been different absent counsel's

ineffectiveness." Commonwealth v. Mallory, 941 A.2d 686, 702 (Pa. 2006).

Page 2 of 9 On October 2, 2017, the Defendant signed a Waiver of Jury Trial, and the written

waiver was also signed by Attorney Blaine Jones and the Honorable Joseph George. The

written waiver includes that the Defendant elects to be tried by a Judge without a jury:

[F]ully understanding that if he/she were tried by ajury:

(a) [T]he jury would be chosen from members of the community thereby producing a jury of his/her peers;

(b) [A]ny verdict rendered by a jury must be unanimous, that is, all twelvejurors must agree before they can return a verdict of guilty; and

(c) [H]e/she would be permitted to participate in the selection of the Jury.

Again, on February 1, 2018, the Defendant signed a Waiver of Jury Trial, in the

same form as the Waiver signed on October 2, 2017, and this Waiver was signed by

Attorney Blaine Jones and the undersigned after an on-the-record colloquywiththe

Defendant as follows:

Q. Mr. Dugan, I have been provided by your counsel this waiver of jury trial, is this your signature on, on this document?

A. Yes, Your Honor.

Q. And did you carefully review this document with your attorney? A. Yes, Your Honor.

Q. How old are you, sir?

A. 24 years old.

Q. And how far did you go in school?

A. Sophomore year of college, Your Honor.

Q. So it's fair to sayyou read, write and understand English?

Pageg of9 Q. Now, was this document signedtoday?

A. Yes, YourHonor,

Q. And have you consumed any drugs, alcohol or any medication in the last 48 hours?

A. No, Your Honor.

Q; And do youunderstand that you have the right to have your case heard by a jury?

Q. And do you believe that you had sufficient time to discuss the matter of a jury trial with attorney Jones?

Q. And is it your desire to waive your right to have a trial by jury and have this case heard by this Court?

Q. You have any questions about your right to a jury trial?

Q. You have any questions about this waiver of the jury trial?

Uie Court: The Court finds that the defendant has made a knowing, voluntary, Intelligent waiver of his right to a jury trial and we will proceed.

Criminal Non-Jury Trial Proceedings at 12-13.

At the PCRA hearing, Attorney Blaine Jones testified that it is his practice to

provide his clients with their option of proceeding with a bench trial or a jury trial.

Attorney Jones testified that it is not his job to make the decision, but ultimately.It is up

to the client whether to have ajurytrial. This Court finds the testimony ofthe Defendant

to be incredible when he testified that Attorney Jones never explained to him the

Page a of 9 difference between a bench trial and a jury trial. This Court finds the testimony of

Attorney Jones to be very credible to show that he assured that his client understood his

right to have a jurytrial or waive a jury trial. As a result, there is not factual support to

Defendant's claim of ineffectiveness for counsel's failure to explain a bench trial to the

Defendant. In addition, this Court finds that Defendant has failed to present any

evidence of prejudice due to the fact his case proceeded as a non-jury trial.

Defendant also avers that Attorney Jones failed to conduct proper cross-

examination of Trooper Reitler. Specifically, Defendant raises as ineffectiveness

Attorney Jones's failure to ask Trooper Reitler why there was not gunshot residue

collected from co-defendant Zachary Helisek, As Attorney Jones testified, on the date of

this crime, gunshot residue was collected from the four individuals apprehended at or

nearthe scene. Zachary Helisek was not detained on the date of the crime, and Attorney

Jones explained this as the reason that he did not inquire about gunshot residue

collected from Zachary Helisek, As a general rule, in criminal proceedings, an attorney is

authorized to act for his client and to determine for the client all procedural matters, as

well as trial strategy and tactics. A court will not second-guess a trial counsel's trial tactics, so long as tliere is a reasonable basis for what counsel did or did not do.

Commonwealth v. Rivers, 786 A.2d 923, 930 n.5 (Pa. 2001).

In addition, Defendant argues that trial counsel was ineffective with regard to his

cross-examination of co-defendant, Zachary Helisek. Defendant testified that Attorney

Jones failed to bring up the inconsistencies in two written statements of Mr. Helisek.

Upon review of the trial transcript, this Court does not accept this argument by the

Defendant. The trial transcript contains eighteen pages of cross-examination of Mr.

Helisek by Attorney Jones. This interrogation includes Attorney Jones specifically

Pages of 9

��------------�-------�-------···--·-····· asking Mr. Helisek about the first and second statements that he provided to the police.

In addition, Attorney Jones brought up the fact that Mr. Helisek's memory may have

been impaired by alcohol and drugs, andthat.Mr, Helisek may have been testifying to

"save" his "tail.''

At the PCRA Hearing, Attorney Jones testified crediblythat it is his practice of

asking the court for just a moment after he questions each witness, and he asks the

defendant if there is anything he missed, or if there is anything the defendant would like

him to ask each witness. Therecord reflects that before Attorney Jones concluded his

cross and recross of Mr. Helisek, he asked, "May! have a moment Judge" and "One

moment please, Judge." In addition, the Defendant himself testified that Attorney Jones

told him thatMr. Helisek appeared to be trying to help the Defendantin his testimony,

and Attorney Jones did not want to make Mr. Helisek mad. Furthermore, theDefendant

testified that Attorney Jones did ask a few of the questions that Mr. Dugan wanted

Attorney Jones to ask Mr. Helisek on the stand. The Defendant has failed to establish

his claim for ineffectiveness in this regard.

Defendant next contends that his appellate counsel, Public Defender Jeffrey Whitel-:o, was ineffective. Specifically, Defendant argues that the Public Defender failed

to file a Petition for Allowance of Appeal to the Pennsylvania Supreme Court after the

Superior Court issued an Opinion affirmingthe Defendant's sentence. The Defendant

made a bald assertion that he requested an appeal to the Pennsylvania Supreme Court

when he received notice in the mail that his appeal was denied. He testified that he

wrote the Public Defender's office the same night as he received the denial of his appeal.

Then, on cross-examination, the Defendant testified that he believes he contacted his

mother to file the appeal, but she couldn't get in touch with the Public Defender.

Page6 of9

-----------·----·,.·--· AttorneyWhiteko testified that he cannot specifically recall if the Defendant

requested a Petition for Allowance of Appealto the Pennsylvania Supreme Court. This

Court finds it significant that there was no testimony by Attorney Whiteko that his file

contained any letter from the Defendant requesting a Petition for Allowance of Appeal.

A defendant has a rule-based right to effective counsel throughout his direct

appeal. Pa.R.Crim.P.122(B)(2); Commonwealthv. Liebel, 825 A.2d 630, 633 (Pa.

2003). While an appeal to the Supreme Court is a matter of judicial discretion and not a

matter of right (See Pa.R.A.P. 1114(a)), a defendant can establish prejudice for counsel's

failure to seek allowance of appeal in certain circumstances. After the Superior Court

renders a decision, a defendant has a right to effective consultation regarding the filing

of a petition for allowance of appeal with the Pennsylvania Supreme Court, and failure

to receive said consultation would result in prejudice. See Commonwealth v. Gadsden,

832 A2d 1082, · 1088 (Pa. Super. Ct. 2003); But cf Commonwealth v. Bath, 907 A.2d

619, 620-21 (Pa. Super. Ct. 2006) (holding that it is not per se ineffectiveness when

counselfails to consult with the defendant concerning the potential advantages of filing

a petition for allowance of appeal). Further, defendants who request that counsel file a

petition for allowance of appeal on their behalf have a right to effectiverepresentation,

and it is per se ineffective assistance for counsel to fail to file that petition. See

Commonwealth v. Reed, 971A.2d 1216, 1225(Pa. 2009).

Where the record is devoid of a defendant's request for review before the

Pennsylvania Supreme Court, the defendant still may have a cognizable claim under the

PCRA if the defendant proves any issues the defendant sought to take to the Supreme

Court "rose 'abovefrivolity," Commonwealth v. Rigg, 84 A.3d 1080, 1088 (Pa. Super.

Ct. 2014) (quoting Bath at 624); see also Gadsden at 1085-86 (citing Liebel at 635).

Page 7of9 In Bath, the Superior Court stated, "[w]here no request [to file a petition for

allowance of appeal] has been made, an appellant must establish that a duty to consult

was owed." Bath at 623. An appellant may establish a duty to consult byindicating

issues that had any potential merit for further review. See Roe v. Flores-Ortega, 528

U.S;470, 480 (2000); See also Commonwealth v. Touw, 781 A.2d 1250, 1254 (Pa.

Super. Ct. 2001). This does not require appellant to demonstrate that the Supreme

Court would likely grant review to a petition for allowance of appeal, but onlythat

appellant must show that any issue rises above frivolity. Bath at 623-24.

In the case presently before this Court, other than the Defendant's bald

allegation, the record lacks any evidence that Defendant asked direct appeal counsel to

file a petition for allowance of appeal with the Pennsylvania Supreme Court. Therefore,

Defendant must establish that a duty to consult was owed. However, Defendant fails to

state what.issues he would have sought to pursue, nor does he attempt to prove any

claim would have risen above frivolity. Specifically, Defendant never suggests how his

challenge to the sufficiency of the evidence to support his conviction would not be

considered frivolous upon further appeal. As such, this Court finds that Defendant has

failed to meet the prejudice prong of the test for ineffective assistance of counsel for his

failure to show his sufficiency of the evidence challenge would rise above mere frivolity

upon further review. Accordingly, this Court cannot find that appellate counsel was

ineffective.

Page 8 of 9 - CONCLUSION

For the foregoing reasons, Mr. Dugan's Petition for Post-Conviction relief is

Denied.

BY THE COURT: ATIEST:

d cf-!. >IZ &.La./Lu Linda R. Cordaro, Judge

Dated: September 16, 2019

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