J-A34041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

PAUL NELSON HANSEN

                          Appellant                No. 1945 MDA 2014


                  Appeal from the PCRA Order August 8, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0003860-2010


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED JANUARY 06, 2016

      Paul Hansen (“Appellant”) appeals from an order denying his first,

timely petition under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et

seq. We affirm.

      The PCRA court recounts the underlying factual and procedural history

as follows:

      Appellant was convicted of first degree murder (18 Pa.C.S. §
      2502(a)), terroristic threats (18 Pa.C.S. § 2706(a)(1)), and
      simple assault (18 Pa.C.S. § 2701(a)(1)) following a jury trial
      held [on] July 11 through July 13, 2011. On August 24, 2011,
      we sentenced Appellant to the mandatory term of life
      imprisonment on the first-degree murder conviction. Appellant
      filed an appeal to the Superior Court challenging the weight and
      sufficiency of the evidence, and the Superior Court affirmed the
      judgment of sentence by way of [a] decision dated August 17,
      2012 [at] 1856 MDA 2011. Appellant filed a PCRA petition on
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       April 30, 2014,[1] and we held an evidentiary hearing on August
       8, 2014. Appellant was present at the PCRA hearing with
       counsel. Appellant now seeks relief from our order of August 8,
       2014 denying his PCRA petition.

       Appellant’s conviction stems from an altercation that occurred on
       June 12, 2010. Appellant attended a house party hosted by the
       victim, Melissa Barnes. When attempting to leave the party,
       Appellant’s vehicle became stuck in the mud of a makeshift dirt
       road leading to the victim’s house, and Appellant enlisted the
       assistance of others to dislodge his vehicle. A confrontation
       ensued between Appellant and one such volunteer, Holly
       McMichael, who made remarks regarding Appellant’s driving. At
       that point Appellant placed Ms. McMichael in a chokehold and
       threatened to break her neck. N.T. Trial, 7/11/11 at 183. Ms.
       Barnes - upset by Appellant’s conduct - quickly approached the
       scene and began swearing at and pushing Appellant. Appellant
       reached to his side, pulled out a pistol, and shot Ms. Barnes in
       the head. N.T. Trial, 7/11/11 at 111.

PCRA Court Opinion, 1/14/15, at 1-2. The jury rejected Appellant’s defense

that the shooting was an accident.

       On June 1, 2015, counsel for Appellant filed a Turner/Finley2 letter

brief in this Court and a petition for leave to withdraw as counsel.

       Before we may address the merits of Appellant’s claims, “we must

determine if counsel has satisfied the requirements to be permitted to
____________________________________________


1
   We note that after the Superior Court affirmed Appellant’s judgment of
sentence, he filed a petition for allowance of appeal in the Supreme Court,
which denied this petition on February 4, 2013. Appellant did not appeal to
the United States Supreme Court. Thus, his one-year limitation period for
filing a PCRA petition began running ninety days after February 4, 2013, or
on Monday, May 6, 2013. See 42 Pa.C.S. § 9545(b)(1), (3). Appellant filed
his PCRA petition less than one year later.
2
  See Commonwealth v. Turner, 544 A.2d 927                             (Pa.1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988).



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withdraw from further representation.” Commonwealth v. Freeland, 106

A.3d 768, 774 (Pa.Super.2014). Competent PCRA counsel must conduct an

independent review of the record before we can authorize counsel’s

withdrawal. Id. The independent review

      requires counsel to file a ‘no-merit’ letter detailing the nature
      and extent of his review and list[ing] each issue the petitioner
      wishes to have examined, explaining why those issues are
      meritless. The PCRA court, or an appellate court if the no-merit
      letter is filed before it, then must conduct its own independent
      evaluation of the record and agree with counsel that the petition
      is without merit.

Id. (internal citation omitted). PCRA counsel must also

      serve a copy on the petitioner of counsel’s application to
      withdraw as counsel, and must supply to the petitioner both a
      copy of the ‘no-merit’ letter and a statement advising the
      petitioner that, in the event that the court grants the application
      of counsel to withdraw, he or she has the right to proceed pro se
      or with the assistance of privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super.2011) (quoting

Commonwealth v. Friend, 896 A.2d 607 (Pa.Super.2006), abrogated in

part by Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa.2009)).

      Here, counsel reviewed the record and the applicable law, listed the

issues Appellant wished to have examined, and explained why the issues are

meritless. Counsel also mailed a copy of the no-merit letter and a copy of

his motion seeking permission to withdraw as counsel to Appellant and

informed Appellant of his right to proceed pro se or with privately-retained

counsel to raise any points he deemed worthy of consideration. Following

receipt of counsel’s letter, Appellant filed a pro se response requesting that

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this Court deny counsel’s motion to withdraw and direct him to file a brief on

the merits.   Accordingly, we determine that PCRA counsel substantially

complied with Turner/Finley.

      We will now address the merits of the claim raised. Appellant did not

file a pro se brief or a brief by privately-retained counsel, so we will review

the merits of the claim raised in his 1925(b) statement and discussed in the

Turner/Finley letter.

      Appellant raises nine issues on appeal, all of which concern alleged

ineffectiveness of counsel:

      1. Trial counsel was ineffective for failing to present evidence of
         Appellant’s mental health diagnoses and diminished capacity;

      2. Trial counsel was ineffective for not introducing testimony to
         establish the victim’s height and weight;

      3. Trial counsel was ineffective for failing to object to statements
         regarding Appellant’s knowledge or experience in the martial
         arts;

      4. Trial counsel was ineffective for failing to highlight on cross
         examination Hudson Bethard’s statement that several
         individuals approached the scene of the altercation;

      5. Trial counsel was ineffective for failing to present evidence
         that Appellant’s pistol was carried in a left- handed holster,
         despite testimony indicating Appellant brandished and fired
         the weapon using his right hand;

      6. Trial counsel was ineffective for failing to present character
         witnesses at trial;

      7. Trial counsel was ineffective for advising Appellant not to
         testify at trial;




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       8. Trial counsel did not adequately prepare for the trial or
          explore various defenses; and

       9. Appellate counsel was ineffective for failing to raise the above
       issues on direct appeal.

PCRA Court Opinion, at 2-3. Our standard of review from the denial of post-

conviction relief “is limited to examining whether the court’s determination is

supported by the evidence of record and whether it is free of legal error.”

Commonwealth        v.   Ousley,   21   A.3d   1238    (Pa.Super.2011)     (citing

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).

       For ineffective assistance of counsel claims, the petitioner must

establish: “(1) that the underlying claim has merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) but for

the errors or omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different.” Ousley, 21 A.3d at

1244    (quoting   Commonwealth         v.   Rivera,   10   A.3d   1276,     1279

(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove

any one of the three [ineffectiveness] prongs results in the failure of

petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).

       With regard to prong (2) of the ineffective assistance standards,

       our courts repeatedly have held or implied that an attorney’s
       basis for making one strategic or tactical decision over another,
       whether at trial or on appeal, is not subject to judicial
       speculation. The reasonableness of an attorney’s strategic or
       tactical decisionmaking is a matter that we usually consider
       when evidence has been taken on that point.

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Commonwealth v. DuPont, 860 A.2d 525, 533 (Pa.Super.2004).

     Appellant’s first four arguments allege that trial counsel failed to take

some action to bolster Appellant’s self-defense claim.       The PCRA court

reasoned:

     Appellant … has maintained from the day of the shooting that
     the firing was purely accidental. N.T. PCRA, 8/8/14 at 7-8. In
     other words, no self-defense claim was properly before the jury.
     As such, Appellant’s state of mind was not at issue because it
     had no bearing on whether the trigger was pulled accidently.
     Trial counsel explained his rationale for not introducing the self-
     defense argument as follows:

            [T]he night that this incident occurred [Appellant]
            actually was arrested by an off-duty police officer
            who was a neighbor, and he was taken into the
            police station where he made a pretty full and
            thorough statement, and I felt we were pretty much
            locked into that statement where he said he kept
            telling the police officer it was a mistake. It was not
            on purpose. It was a mistake. My recollection is
            there was no talk about being self-defense in there,
            and to come in and go in front of a jury and change
            what we said happened I thought was just a fatal
            flaw. It was never going to work in front of a jury...

     N.T. PCRA 8/8/14 at 32-33. Appellant agreed to take trial
     counsel’s advice in this regard. N.T. PCRA, 8/8/14 at 7-8.
     Appellant made this decision voluntarily after being colloquied by
     the court and taking a recess to discuss the matter with counsel.
     N.T. Trial, 7/11/11 at 366-71. We find Appellant failed to
     demonstrate this course of action was chosen by counsel without
     a reasonable basis. To the contrary, we find the trial strategy to
     be reasonable in light of Appellant’s prior statements to police
     and the record as a whole.

PCRA Court Opinion, at 4. We agree with the PCRA court’s analysis that trial

counsel made a reasonable tactical decision not to claim self-defense.


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      Appellant’s fifth argument is that that trial counsel was ineffective for

failing to present evidence that Appellant carried his pistol in a left-handed

holster. The PCRA court correctly determined that this claim lacked arguable

merit, that trial counsel had good reason not to raise it, and that it did not

cause Appellant prejudice:

      Appellant believes this [fact] is important in light of eyewitness
      testimony that Appellant had pulled the pistol and shot the
      victim with his right hand. We find this claim has no merit.
      Appellant has never contested the undisputed evidence that he
      brandished the pistol and shot the victim. Rather, his contention
      is that the shooting was an accident. Trial counsel commented
      that the lack of focus on the left-handed holster was intentional,
      as he felt picking at irrelevant details would only insult the jury.
      N.T. PCRA, 8/8/11 at 38. Further, Appellant has not
      demonstrated prejudice resulting from this decision.

PCRA Court Opinion, at 5.      Based on this analysis, we conclude that this

argument does not entitle Appellant to relief.

      Appellant’s sixth argument is that trial counsel failed to present

character witnesses.      Trial counsel may be ineffective if he fails to

investigate, interview, and call character witnesses and has no strategic

basis for failing to do so. Commonwealth v. Weiss, 606 A.2d 439, 442-43

(Pa.1992).    To establish that trial counsel is ineffective for failing to call

witnesses, a defendant must show, in addition to meeting the general

standard to establish ineffective assistance of counsel, that the witnesses

existed, were available and willing to testify on defendant’s behalf; that

counsel knew of or should have known of the existence of the witnesses;

and that defendant was prejudiced by the absence of the testimony which

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would have been offered. Commonwealth v. Brown, 767 A.2d 576, 581-

82 (Pa.Super.2001).      Among other things, a defendant must show the

proposed testimony would have been beneficial, i.e., the absence of other

good- character evidence “was so prejudicial as to have denied the

[defendant] a fair trial.” Commonwealth v. Johnson, 966 A.2d 523, 536

(Pa.2009). Finally, trial counsel will not be found ineffective for failing to call

a witness whose testimony would be cumulative.              Commonwealth v.

Gibson, 951 A.2d 1110, 1134 (Pa.2008).

      The record does not support Appellant’s claim that trial counsel failed

to call character witnesses, because counsel called Appellant’s ex-wife as a

character witness. Appellant argues, however, that trial counsel should have

called additional character witnesses.       Trial counsel testified at the PCRA

hearing, however, that he did not recall Appellant asking him to introduce

additional character witnesses. N.T. PCRA, 8/8/14 at 36. Counsel also

testified that had Appellant identified an additional character witness, he

would have “certainly” spoken with that witness to determine whether his or

her testimony would be helpful.      Id. at 41-42. Appellant failed to produce

any testimony or affidavits of uncalled witnesses at the PCRA hearing. Nor

did Appellant identify what character trait was at issue or what the nature of

the uncalled witness’s testimony would have been. Finally, Appellant failed

to demonstrate how the testimony of additional character witnesses would

have been beneficial to him and not cumulative. Accordingly, we agree with


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the PCRA court that Appellant’s character witness argument lacked arguable

merit.

      In his seventh argument, Appellant contends that trial counsel was

ineffective for advising him against testifying in his own defense during trial.

During trial, Appellant stated at the conclusion of the Commonwealth’s case-

in-chief that he decided not to testify based on counsel’s advice. N.T. Trial,

7/11/11 at 356-66. Appellant admitted during PCRA proceedings that it was

his decision not to testify. N.T. PCRA, 8/8/14 at 13. Trial counsel testified

that he discussed the advantages and disadvantages of testifying with

Appellant. Trial counsel advised Appellant that testifying was not in his best

interests, because trial counsel was concerned that Appellant would claim

self-defense and thus contradict counsel’s defense that the shooting was

accidental.   Id. at 33.   The PCRA court concluded, and we agree, that

counsel’s advice was reasonable trial strategy.     Moreover, the jury heard

Appellant’s audiotaped statement to police on the night of the incident in

which Appellant claimed that the shooting was an accident. Testifying would

have subjected Appellant to cross-examination unnecessarily, because his

audiotaped statement communicated his version of the events without him

taking the stand.

      Appellant’s eighth argument is that trial counsel did not adequately

prepare for trial.   The thrust of this argument appears to be that the




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Commonwealth presented expert witnesses but Appellant did not. The PCRA

court correctly determined that this argument lacked merit:

      [T]he defense had hired Mr. Blumberg as an expert to explore
      Appellant’s psychological diagnoses. [Trial counsel testified that]
      Mr. Blumberg did not testify because ‘he didn’t think he could
      give us anything that was positive at the trial.’ N.T. PCRA,
      8/8/14 at 35. Additionally, the defense hired an expert to
      determine the trigger pull of the pistol. While he did not
      ultimately testify, he was available and on call at the time of the
      trial. The Commonwealth’s expert, however, admitted the points
      the defense was trying to make, hereby negating the need for
      the defense expert to testify. N.T. PCRA 8/8/14 at 39-40. Trial
      counsel is not ineffective for failing to call an expert witness if
      counsel can effectively cross examine the prosecution witness
      and elicit helpful testimony. See Commonwealth v. K.M., 680
      A.2d 1168, 1172 (Pa.Super.1996).

PCRA Court Opinion, at 6-7.

      In his ninth and final argument, Appellant claims that appellate

counsel was ineffective for failing to raise the foregoing issues on direct

appeal.   This argument fails because none of the foregoing issues would

have entitled Appellant to relief.

      For these reasons, we conclude that the PCRA court properly dismissed

Appellant’s PCRA petition.

      Order affirmed. Application for leave to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/6/2016


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