J-S91041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
THOMAS J. HUDDLESTON                    :
                                        :
                    Appellant           :   No. 25 MDA 2016

                 Appeal from the PCRA Order December 2, 2015
                 In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001994-1999



BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                 FILED FEBRUARY 07, 2017

      Thomas Huddleston (“Appellant”) appeals from the order entered in

the Court of Common Pleas of Centre County dismissing his first petition for

collateral relief filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing. We affirm.

      This Court has previously summarized the factual history of the case

as follows:

     This case arises out of the robbery and murder of David
     Camargo.      [Appellant] and Heath Quick agreed to shoot
     Camargo and steal his marijuana, any money he had, and his
     car. [Appellant] and Quick set up a meeting with Camargo at a
     K-Mart in State College to buy some drugs. After meeting at the
     K-Mart, Quick, Camargo and [Appellant] agreed to drive to a
     new meeting spot. Quick got into the car with Camargo and
     followed [Appellant], who was driving his girlfriend’s vehicle, to
     the new meeting spot in Black Moshannon State Park. After
* Former Justice specially assigned to the Superior Court.
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     entering the park, [Appellant] stopped his vehicle and got out to
     urinate. It was at this time that Quick shot and killed Camargo.
     [Appellant] and Quick then took Camargo’s body and placed it
     into [Appellant’s] trunk. [Appellant] drove his girlfriend’s vehicle
     with Camargo’s body in the trunk and Quick drove Camargo’s
     vehicle. The two men drove to a place called “Devil’s Elbow,”
     where they threw Camargo’s body down an embankment. When
     Camargo’s body did not go far enough down, [Appellant] went
     down the embankment and pushed the body further down.
     [Appellant] and Quick split up the marijuana and money they
     took from Camargo.           The police eventually arrested both
     [Appellant] and Quick. [Appellant] gave a statement to the
     police detailing his role in Camargo’s death.

Commonwealth v. Huddleston, 55 A.3d 1217, 1218 (Pa.Super. 2012).

     The PCRA court provides an apt procedural history as follows:

     On October 11, 2000, following a jury trial, [Appellant] was
     found guilty of, inter alia, Criminal Homicide – Murder of the
     Second Degree.        On October 12, 2000, [Appellant] was
     sentenced to life in prison.

     ***
     [Having availed himself of the PCRA to restore direct appeal
     rights lost due to ineffective assistance of appellate counsel,]
     [Appellant] filed a timely direct appeal to the Superior Court, and
     on September 21, 2012, the Superior Court reached the merits
     of   [Appellant]’s    appeal    and    affirmed   his    conviction.
     [Subsequently, on March 6, 2013, the Pennsylvania Supreme
     Court denied allocator.]

     On June 2, 2014, [Appellant] filed his third PCRA petition[, his
     first filed after judgment of sentence became final.] [Appellant]
     requests vacation of the judgment of sentence and a new trial
     due to ineffective assistance of trial counsel, Attorney [Karen]
     Muir, in failing to move to suppress [Appellant]’s statement to
     Trooper Mahalko, . . . and failing to take exception to the trial
     court’s refusal to give the requested jury instruction on duress.
     [Appellant] also [asserted that the trial court erred in permitting,
     over objection, certain prosecutorial remarks regarding a
     marijuana pipe during closing arguments.]




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     In [the PCRA court’s] Opinion and Order of June 30, 2015, it
     gave notice and dismissed without a hearing [Appellant]’s
     ineffectiveness claims regarding [several issues, including] the
     trial court’s refusal to give a duress instruction. . . . On October
     26, 2015, an evidentiary hearing was held on [Appellant]’s two
     remaining ineffectiveness claims, Attorney Muir’s failure to move
     for suppression of [Appellant]’s statement to Trooper Mahalko,
     [and other issues].

PCRA Court Opinion, filed 12/2/15, at 1-3. On December 2, 2015, The PCRA

court entered an order denying Appellant relief and dismissing his petition.

This timely appeal followed.

     Appellant presents the following questions for our consideration:

     1. WHETHER THE COURT OF COMMON PLEAS OF CENTRE
        COUNTY (THE “COURT”) ERRED IN DENYING THE CLAIM
        UNDER 42 Pa.C.S. § 9543(a)(2)(i), RELATING TO THE PIPE
        USED BY THE PROSECUTOR IN SUMMATION, AS SET FORTH
        IN THE AMENDED PETITION FOR RELIEF UNDER THE . . .
        PCRA, WITHOUT AN EVIDENTIARY HEARING INASMUCH AS
        THE VERFIFIED, AMENDED PCRA PETITION, AFFIDAVITS,
        AND OTHER MATTERS OF RECORD RAISED MATERIAL ISSUES
        OF FACT ON SUCH CLAIM, WHICH HAD MERIT?

     2. WHETHER THE PCRA COURT ERRED IN DENYING THE CLAIM
        UNDER 42 PA.C.S. § 9543(A)(2)(II), RELATING TO
        INEFFECTIVE ASSISTANCE OF COUNSEL IN OMITTING TO
        TAKE EXCEPTION TO THE REFUSAL OF THE REQUESTED
        DURESS INSTRUCTION, WITHOUT AN EVIDENTIARY HEARING
        INASMUCH AS THE VERIFIED, AMENDED PCRA PETITION,
        AFFIDAVITS, AND OTHER MATTERS OF RECORD RAISED
        MATERIAL ISSUES OF FACT ON SUCH CLAIM, WHICH HAD
        MERIT?


     3. WHETHER THE COURT ERRED IN DENYING THE CLAIM UNDER
        42 PA.C.S. § 9543(A)(2)(II), RELATING TO INEFFECTIVE
        ASSISTANCE OF COUNSEL IN OMITTING TO MOVE FOR
        SUPPRESSION OF THE STATEMENT TO TROOPER MAHALKO,
        INASMUCH AS THE PCRA PETITIONER PROVED THAT SUCH
        CLAIM HAD ARGUABLE MERIT, THAT TRIAL COUNSEL HAD NO


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           REASONABLE BASIS FOR THE OMISSION,                  AND    THAT
           PREJUDICE RESULTED FROM THE OMISSION?

Appellant’s brief at 4.

        When considering a PCRA court's denial of relief, we must bear in

mind:
        Our standard of review of an order denying PCRA relief is
        whether the record supports the PCRA court's determination and
        whether the PCRA court's decision is free of legal error. The
        PCRA court's findings will not be disturbed unless there is no
        support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).

        To be entitled to relief, a petitioner must establish his claims have not

been previously litigated or waived. Commonwealth. v. Keaton, 45 A.3d

1050, 1060 (Pa. 2012). Pursuant to Section 9544(b) of the PCRA, “an issue

is waived if the petitioner could have raised it but failed to do so before trial,

at trial, during unitary review, on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S. § 9544(b).

        Appellant’s first challenges the PCRA court’s denial of an evidentiary

hearing on his claim that the trial court erroneously overruled a defense

objection to the prosecutor’s allegedly false suggestion during summation

that a marijuana pipe found in Appellant’s possession had originally

belonged to the murder victim. Absent an accompanying allegation of trial

or direct appellate counsel’s ineffectiveness, however, Appellant’s claim of

trial court error is not cognizable for PCRA review, as he could have raised it




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on direct appeal but did not do so. Consequently, he has waived this claim

pursuant to Section 9544(b).

      Next, Appellant contends that trial counsel rendered ineffective

assistance for failing to take “the requisite exception” to the denial of his

request for a duress defense jury instruction. A more specific objection than

what counsel offered, according to Appellant, was necessary to preserve for

direct review an issue asserting the erroneous denial of a duress instruction.

We disagree.

      “A specific and timely objection must be made to preserve a challenge

to a particular jury instruction.     Failure to do so results in waiver.”

Commonwealth v. Moury, 992 A.2d 163, 178 (Pa.Super. 2010) (citations

omitted). “[T]he mere submission and subsequent denial of proposed points

for charge that are inconsistent with or omitted from the instructions

actually given will not suffice to preserve an issue, absent a specific

objection or exception to the charge or the trial court's ruling respecting the

points.”   Commonwealth v. Hitcho, 123 A.3d 731, 756 (Pa. 2015)

(citation omitted); see also Pa.R.Crim.P. 603, 647(C).

      The record shows trial counsel not only submitted a proposed charge

relating to a duress defense but also objected to the court’s suggestion that

the charge found no evidentiary support in the record and again asked that

the charge be read. The court had concluded a duress defense to homicide

and related charges was inapplicable given the testimony presented, as

Appellant denied any involvement with the shooting of Camargo, testifying,

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instead, that he was shocked and surprised when he heard the gunshot

while sitting in his girlfriend’s car. Only when Quick rejoined Appellant after

the shooting did he coerce Appellant’s complicity in disposing of Comargo’s

body:

        THE COURT:      The only other issue I have is the defense
        number 14 which we deferred until today which is the duress.

        DEFENSE COUNSEL: Right.

        Q:    Do you still wish me to read this?

        A:    Yes.

        Q:    Any objections?

        PROSECUTOR: Yes.

        Q:    What’s your objection?

        PROSECUTOR: That there isn’t even a claim by the defense
        including Mr. Huddleston’s testimony of any duress until after
        the victim was killed. It’s as simple as that. Duress can’t occur
        after the crime…. It has to occur beforehand.

        He said, Mr. Huddleston, everything was fine until the victim was
        shot by Mr. Quick and then Mr. Quick started to give him orders
        and then waving a gun around. I think the charge is not correct
        for this factual situation.

        THE COURT:        Ms. Muir?

        DEFENSE COUNSEL: I would just ask, judge, that you give it
        [the instruction] understanding Mr. Gricar [the prosecutor].

        THE COURT:        Over your objection, I will not give it. I think
        Mr. Gricar is right. The very first sentence says duress is a
        defense to a criminal charge. A defendant acts under duress
        when he is coerced into doing an act which would otherwise be
        criminal.


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      I think the only actions that are here that he was coerced into
      doing was remaining silent, maybe moving the body, things of
      that nature. So, by his own testimony he wasn’t afraid, didn’t
      think the gun constituted a threat to anybody until after he
      heard it discharged. So, and by then the principal crimes had
      been committed. So I will not give [the instruction].

N.T. 10/11/00 at 558-59.

      While defense counsel’s objection proved unpersuasive, she specifically

directed it to the court’s position against a duress defense charge, and the

court recognized it as such.     Moreover, to the extent Appellant argues

ineffectiveness by suggesting defense counsel overlooked certain supportive

excerpts of his testimony, which he reproduces in his brief, we note the

excerpts pertained only to events occurring in the aftermath of the shooting

and lent no additional support to his cause.

      The record, therefore, belies Appellant’s claim that defense counsel

failed to object properly to the denial of his proposed jury instruction on the

defense of duress.   Accordingly, absent a claim that direct appeal counsel

ineffectively failed to raise a challenge to the court’s denial of his proposed

jury instruction, we deem this claim waived pursuant to Section 9544(b).

      In his final issue, Appellant contends that trial counsel ineffectively

failed to seek suppression of pre-arrest statements he gave to Pennsylvania

State Trooper Todd Mahalko after he had allegedly requested an attorney

during a prior interview less than 24 hours earlier. According to Appellant’s

testimony at the PCRA evidentiary hearing, Troopers Michael Wasilko and

David Aiello arrived at his home on the night of September 21, 1999, and


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asked if he would voluntarily accompany them to the Pennsylvania State

Police barracks at Phillipsburg to answer questions pertaining to the

investigation of Camargo’s death.     Appellant agreed, and, at just before

11:00 p.m., the troopers commenced their interview.

       Shortly into the interview, Appellant claims, he refused to answer a

question and requested an attorney.        Troopers assured him an attorney

would be provided, Appellant testified, but they said he would have to

answer some questions in the meantime.            N.T. 10/26/15 at 45-46.

Appellant again insisted on an attorney, he maintained, and the troopers left

the room agitated before returning with a form for him to sign. N.T. at 46.

       Appellant claimed the troopers advised him that the form was an

attorney request form and he did not need to read it but only needed to sign

it.   Appellant testified that he signed it without reading it.   N.T. at 46.

Troopers collected the form and advised they would begin the process of

obtaining an attorney for him but would continue interviewing him in the

interim.   N.T. at 49.   Appellant believed this was normal procedure, he

maintained, and he answered questions for the next hour before the

troopers tape recorded the interview and then returned him to his home. Id.

       The following morning of September 22, 1999, the troopers asked

Appellant to return to the barracks for further questioning.        Appellant

testified that he complied but, again, requested an attorney, only to be

advised that one was imminent. N.T. at 51. Once at the barracks, Appellant

submitted to a lie detector test before answering additional questions put to

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him by Trooper Mahalko.    Afterward, Appellant was taken to his mother’s

home.    N.T. at 51.   Appellant recalled that it was two days later, on

September 24, 1999, that he was taken to the barracks again and directed

to wait in the lobby, where his appointed counsel first met with him. N.T. at

52.   He testified that he told counsel of his pre-interview request for an

attorney, but she advised against seeking suppression, he said.         In her

opinion, Appellant recounted, the statements consistently supported his

defense that he was not a confederate in Quick’s decision to shoot Camargo

and helped dispose of the body afterward for fear of his own death.

      At the PCRA evidentiary hearing, the Commonwealth introduced

Trooper Wasilko’s Homicide Investigation Action Report, which recounted

that he and Trooper Aiello opted to read Appellant his Miranda rights during

the September 21 interview after they felt compelled to restrain an

increasingly emotional Appellant in handcuffs and leg cuffs. At that point,

they presented Appellant with a “Rights Warning” and a “Waiver Statement,”

which, the report indicates, Appellant signed.    N.T. at 33-35.      Appellant

thereafter gave a taped statement and asked for counsel afterward.

      According to Appellant, because his invocation of the right to counsel

remained intact the following day, his statement to Trooper Mahalko was

presumptively involuntary and, therefore, subject to suppression. Moreover,

because he claims that his statement to Mahalko differed materially from

that given to Wasilko and Aiello on the issue of whether he acted under




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duress, he asserts that counsel’s failure to seek suppression of the Mahalko

interview constituted error.

      As to claims of ineffectiveness, it is well settled that:

      [c]ounsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel's
      performance was deficient and that such deficiency prejudiced
      him. In Pennsylvania, we have refined the Strickland [v.
      Washington, 466 U.S. 668 (1984) ] performance and prejudice
      test into a three-part inquiry. Thus, to prove counsel ineffective,
      the petitioner must show that: (1) his underlying claim is of
      arguable merit; (2) counsel had no reasonable basis for his
      action or inaction; and (3) the petitioner suffered actual
      prejudice as a result. If a petitioner fails to prove any of these
      prongs, his claim fails.

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa.Super. 2014)

(some citations omitted).      To establish the prejudice prong, the appellant

“must show that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s action or inaction.”

Commonwealth v. Spotz, 18 A.3d 244, 259–60 (Pa. 2011).                      If an

appellant has clearly not met the prejudice prong, a court may dismiss the

claim on that basis alone.     Commonwealth v. Travaglia, 661 A.2d 352,

357 (Pa. 1995).

      Appellant contends that the outcome of his trial would have been

different had defense counsel sought and won suppression of his statements

to Trooper Mahalko, which, he claims, uniquely “detracted from duress and

supported the inference that he was an active participant with Heath Quick

in robbing and killing David Camargo.” Appellant’s brief at 21. Our review



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of the trial transcript, however, discloses no support for this claim, for

Trooper Mahalko attributed essentially the same statements to Appellant as

did Troopers Wasilko and Aiello.

     Specifically, on cross-examination, Trooper Wasilko testified that

Appellant and Quick talked about killing Camargo, with Quick broaching the

topic and Appellant not taking it seriously as they were high on marijuana:

     DEFENSE COUNSEL: So, when Mr. Huddleston first talked to
     you he said that there was no agreement to kill Oscar Camargo?

     TROOPER WASILKO: He never made any mention to me or
     any statement to me that they had actually formulated a plan.
     What he told me was that they had talked about this on the way
     to State College when they were going to meet Mr. Camargo.

     Q:   And when he said that to you he said he didn’t believe
     what Quick was saying?       Didn’t think Quick was serious,
     something along those lines?

     A:    Something along those lines, yes.

     ***
     Q:   He told you that he was high. Mr. Huddleston told you he
     himself was high at the time that all of this happened?

     A:    Yes.

     Q:    That would have been high on marijuana?

     A:    Yes, he stated that they had smoked quite a bit of
     marijuana that day.

N.T. at 349, 350.

     Trooper Mahalko’s testimony largely paralleled Wasilko’s:

     TROOPER MAHALKO: Huddleston stated that Quick made the
     statement to him that he wanted to shoot Camargo, steal his
     weed, steal his car and steal whatever money he had on him.

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     PROSECUTOR: Did Mr. Huddleston tell you if he made any
     response to Quick?

     A:    Yes, He just more or less agreed with him. Said, [‘]yeah,
     you should just go ahead and do that.[’] He then made the
     comment that he was so high he wasn’t using proper judgment
     and didn’t think he was really serious about doing it.

     ***
     DEFENSE COUNSEL:          And at that point Mr. Quick said
     something along the lines I should shoot this guy.

     A:    Yes.

     Q:   Mr. Huddleston told you he did not think that Mr. Quick
     was serious?

     A:    He stated that he was smoked up.        He didn’t think he
     [Quick] was real serious.

     Q:    Trooper Mahalko, Mr. Huddleston told you that he did not
     think Mr. Quick was serious?

     A:    Um-hum.

     Q:    Yes, again, please.

     A:    Yes.

     Q:    Thank you. How long was your interview?

     A:    I think we talked probably three or four hours.

     Q:     Okay. Didn’t, in that three or four hour time frame did Mr.
     Huddleston also tell you that he thought Quick was just going to
     steal the weed from Dave?

     A:    He made that statement one time, too.

N.T. 138, 161.




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      Both troopers testified to the same effect, namely, that Appellant

admitted to having a conversation with Quick about killing Camargo for

marijuana but also insisted he believed Quick was not really serious about

what he was saying. While Mahalko initially testified that Appellant “more or

less agreed” with Quick’s proposition, he also agreed that Appellant stated

he did not think Quick was serious and believed only that Quick might steal

marijuana from Camargo.

      Appellant broadly asserts—without any reference to what notes of

testimony bolster his claim—that his statement to Mahalko alone “supported

the inference that he was an active participant” in the robbing and killing of

David Camargo, but the record belies the position that Appellant supplied a

statement to Trooper Mahalko that differed materially from what he supplied

to other investigators.   In both statements, as conveyed by the state

troopers, Appellant insisted that he dismissed Quick’s deadly proposal as the

frivolous product of marijuana intoxication and later experienced surprise

when Quick shot Camargo in his presence.

      Given the alignment of Mahalko’s testimony with all other evidence

admitted against Appellant, we disagree that defense counsel’s election to

forego a motion to suppress Appellant’s statement to Trooper Mahalko

prejudiced Appellant. As Appellant has clearly not met the prejudice prong

of his ineffectiveness claim, we may dismiss his claim on this basis alone.

See Travaglia, supra.




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     Order is AFFIRMED.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/2017




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