J-S25021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

RONALD CHARLES BACHNER

                        Appellant                 No. 1098 WDA 2015


                Appeal from the PCRA Order June 23, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0009837-2012


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                            FILED JUNE 15, 2016

     Appellant, Ronald Charles Bachner, appeals from the June 23, 2015

order denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful consideration, we affirm.

     The factual circumstances of this case, as contained in the certified

record, are as follows. The charges in this case stemmed from Appellant’s

employment as a building code officer for the Borough of East McKeesport.

In connection with a citation he issued to a property owner in April, 2009,

Appellant agreed to withdraw the citation if the property owner paid

$200.00.   The property owner subsequently contacted the Pennsylvania

State Police, who provided the property owner with a recording device and

marked bills. On May 26, 2009, Appellant accepted the $200.00 from the

property owner and issued him a receipt marked “fine.” Appellant withdrew
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the citation two days later. The marked $200.00 was never discovered in

the Borough’s receipts. Besides noting the transaction in the receipt book,

Appellant documented his interactions with the property owner in his

monthly report available to the Borough.         The Borough secretary was

responsible for depositing monies she received from Appellant that he

collected from property owners as fees for permits and inspections.         The

Borough secretary recalled only one occasion from 2009 where she received

a sum from Appellant designated as a “fine.”      The funds from this receipt

were from a different property owner and are reflected in the Borough’s

records. The Borough secretary reviewed the situation with Appellant and

the chief of the Borough police, who advised Appellant that he could not

collect fines, because that was a judicial function for the magisterial district

court. Upon request from the State Police in 2013, the Borough secretary

conducted a review of the Borough’s financial records of 2009 and found no

misallocated $200.00 entry.

      The PCRA court summarized the procedural history of this case in the

following manner.

                 Appellant[] was charged[, on May 16, 2012,]
            by criminal information (CC201209837) with one
            count of bribery,1 and one count of official
            oppression.2

                  On March 12, 2013, Appellant proceeded to a
            jury trial, at the conclusion of which the jury found
            Appellant guilty of both charges.




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                On June 18, 2013, Appellant was sentenced by
          the Trial Court as follows:

               Count one: bribery - two years probation;

               Count two: official oppression - one year
          probation to be served consecutive to the period of
          probation imposed at count one.

                Appellant filed a post sentence motion on June
          28, 2013, and an amended post sentence motion on
          July 2, 2013. On October 22, 2013, the Trial Court
          denied Appellant’s post sentence motions.

                Appellant filed a [counseled] PCRA Petition on
          October 8, 2014, at which time he raised five claims
          of ineffective assistance of trial counsel.      The
          Commonwealth filed its Answer on November 19,
          2014. Appellant filed his Response on January 2,
          2015.

                The [PCRA] Court held an evidentiary hearing
          on April 16, 2015, at which time the [PCRA] Court
          heard the testimony of Appellant and Appellant’s trial
          counsel, Michael Worgul.        The [PCRA] Court
          continued the matter until April 27, 2015, for
          Appellant to possibly present testimony from Connie
          Rosenbayger (a Commonwealth witness at trial).

                The [PCRA] Court issued findings of fact and
          conclusions of law within its Notice of Intent to
          Dismiss on May 27, 2015. Appellant filed a response
          on June 16, 2015, and the [PCRA] Court denied
          Appellant’s PCRA Petition on June 22, 2015.

                On July 20, 2015, Appellant filed a timely
          notice of appeal.
          _____________________
          1
            18 Pa. C.S.[A.] § 4701(a)(1).
          2
            18 Pa. C.S.[A.] § 5301(1).




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PCRA Court Opinion, 9/30/15, at 1-2.1

       On appeal, Appellant raises the following questions for our review.

              I.    Whether the [PCRA] court erred in denying
              Appellant PCRA relief where his trial counsel stated
              during his closing argument, albeit while speaking
              hypothetically, that Appellant would have pled guilty
              under certain circumstances?

              II.   Whether the [PCRA] court erred in denying
              Appellant PCRA relief where his trial counsel failed to
              object to hearsay that a retired state trooper stated
              to Commonwealth witness Joseph DeSimone that
              Appellant was comitting [sic] illegal acts by accepting
              fine money outside the court?

              III. Whether the [PCRA] court erred in denying
              Appellant PCRA relief based on his claim that counsel
              failed to properly introduce evidence?

Appellant’s Brief at 4.

       The following standards guide our review.

              Our review of a PCRA court’s decision is limited to
              examining whether the PCRA court’s findings of fact
              are supported by the record, and whether its
              conclusions of law are free from legal error. We view
              the findings of the PCRA court and the evidence of
              record in a light most favorable to the prevailing
              party. With respect to the PCRA court’s decision to
              deny a request for an evidentiary hearing, or to hold
              a limited evidentiary hearing, such a decision is
              within the discretion of the PCRA court and will not
              be overturned absent an abuse of discretion. The
              PCRA court’s credibility determinations, when
              supported by the record, are binding on this Court;
              however, we apply a de novo standard of review to
              the PCRA court’s legal conclusions.
____________________________________________
1
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (internal

quotation marks and citations omitted).     In this case, Appellant raises a

number of allegations that trial counsel was ineffective. Appellant’s Brief at

21-22.

           In order to obtain relief under the PCRA based on a
           claim of ineffectiveness of counsel, a PCRA petitioner
           must satisfy the performance and prejudice test set
           forth in Strickland v. Washington, 466 U.S. 668,
           104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).              In
           Pennsylvania, we have applied the Strickland test
           by requiring a petitioner to establish that: (1) the
           underlying claim has arguable merit; (2) no
           reasonable basis existed for counsel’s action or
           failure to act; and (3) the petitioner suffered
           prejudice as a result of counsel’s error, with
           prejudice measured by whether there is a reasonable
           probability that the result of the proceeding would
           have been different. Commonwealth v. Pierce,
           567 Pa. 186, 786 A.2d 203, 213 (2001). Counsel is
           presumed to have rendered effective assistance,
           and, if a claim fails under any required element of
           the Strickland test, the court may dismiss the claim
           on that basis. Commonwealth v. Ali, 608 Pa. 71,
           10 A.3d 282, 291 (2010).

Commonwealth v. Vandivner, 130 A.3d 676, 680 (Pa. 2015).

           Relating to the reasonable basis prong, [g]enerally,
           where matters of strategy and tactics are concerned,
           counsel’s assistance is deemed constitutionally
           effective if he chose a particular course that had
           some reasonable basis designed to effectuate his
           client’s interests. Courts should not deem counsel’s
           strategy or tactic unreasonable unless it can be
           concluded that an alternative not chosen offered a
           potential for success substantially greater than the
           course actually pursued. Also [a]s a general rule, a
           lawyer should not be held ineffective without first
           having an opportunity to address the accusation in

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            some fashion…. The ultimate focus of an
            ineffectiveness inquiry is always upon counsel, and
            not upon an alleged deficiency in the abstract.

                  Relating to the prejudice prong of the
            ineffectiveness test, the PCRA petitioner must
            demonstrate that there is a reasonable probability
            that, but for counsel’s error or omission, the result of
            the proceeding would have been different.

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (internal

quotation marks and citations omitted).

       Appellant first alleges that trial counsel was ineffective when he

mentioned during his closing argument, in the context of a hypothetical, that

Appellant would probably have pled guilty if certain facts had been

ascertained by the police and presented at trial by the Commonwealth.

Appellant’s Brief at 23. In his closing, trial counsel made clear to the jury

that Appellant was not contesting that he issued a citation to the property

owner, that they agreed to an alternative arrangement for the property

owner to pay a fraction of the potential fine in exchange for the withdrawal

of the citation, that Appellant met with the property owner and received

$200.00, and that Appellant withdrew the citation.       N.T., 3/11-12/13, at

265-266.   Trial counsel also acknowledged that Appellant now knows that

such procedure, bypassing the magisterial district court, is improper. Id. at

265.   However, Appellant asserted that he did not know his conduct was

improper until so advised by the Borough police in 2009, and that he did not

receive any pecuniary benefit, having turned the money over to the Borough


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secretary. Id. at 210-211. Trial counsel therefore argued that Appellant’s

open   recordkeeping   of   the   transaction   belied   the   Commonwealth’s

contention that Appellant had criminal intent.     Id. at 267.    Trial counsel

next, alluding to the long delay from the time the police monitored the May

2009 interactions between the property owner and Appellant, to the time the

police filed charges in May 2012, made the point that the police failed to

trace the disposition of the marked $200.00.      Id. at 269.    Trial counsel’s

comments in this regard were as follows.

                 [I]f they simply just arrest my client, okay, I
           guarantee they’re going to search him, and if they
           find that money in his pocket or somewhere on his
           person, this is case closed. I’m not here talking to
           you. We figure something else out. My client
           enters a plea; okay?

                 But there’s another reason why that’s also the
           best evidence in this case that you’re not going to
           get, and this one is at least a little more disturbing to
           me.

                   If they don’t find the money, if they arrest him
           and he does not have the money on him, and then
           it’s, “[Appellant], where are our official state funds?”
           And he says, “Back at the borough building sitting on
           my desk with a Post-it on it,” and they go back and
           they, in fact, find it on his desk with a Post-it on it
           with “963 Fifth Avenue” on it, ready to go to Connie
           Rosenbayger’s office or on her desk, guess what?
           We’re also not here.

                  The Commonwealth, because they didn’t arrest
           my client, in one sense, has failed to give you the
           best evidence in this case and has also prevented my
           client from having exculpatory evidence to say, “This
           is absolutely hogwash, I was never keeping it for
           myself.”

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Id. at 270-271 (emphasis added).

     At the PCRA Hearing, trial counsel explained his rationale behind this

closing argument as follows.

                 A.   … The reason I’m bringing this up at this
           point in my closing is I’m saying: Listen. If the
           trooper would have just done his job, we would have
           the evidence necessary. If he had gone in and
           arrested [Appellant] and found the money in his
           pocket, we’re not here having a trial. Okay. But
           they also don’t have exactly the piece of evidence
           that they need to decide this issue. Because if they
           had done their job, it’s equally good for [Appellant],
           because if they had done their job and they had
           gone in and arrested him and he didn’t have the
           money, okay –

                   Q.   But it was on [the Borough secretary’s]
           desk?

                 A.      It was on [the Borough secretary’s]
           desk. That deprives us of that defense. So I was
           trying to illustrate for the jury how it’s important for
           the police to do your job right away and he -- that by
           not doing their job right away, they deprived either
           the Commonwealth of what could have been
           extremely inculpatory evidence and at the same time
           deprived the defense of what could have been
           extremely exculpatory evidence.

                                      …

                Q.     Do you think there’s a risk in using that
           expression, “My client enters a plea”?

                   A.   There’s always a risk in using that.

N.T., 4/16/15, at 30-31.




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      Appellant acknowledges that, “trial counsel’s closing must be viewed in

its entirety.” Appellant’s Brief at 24, citing Commonwealth v. Bryant, 855

A.2d 726, 743 (Pa. 2004) (holding that appellate review of a defense

counsel’s closing requires examination of the entire closing from counsel’s

perspective, rather than “highlighting fragments of argument, taken out of

context”). Nevertheless, Appellant claims that “[n]o attorney providing the

effective assistance of counsel should inform a jury that his client would

plead guilty, under any circumstances.”         Id.    Appellant expresses the

purported prejudice as follows.      “The problem is… that [trial counsel’s]

comment very well could have made that point crystal clear - that maybe

Appellant was guilty, [trial counsel] knew it or felt so[,] and was simply

aiding Appellant in the exercise of a constitutional right [to a jury trial].” Id.

at 25. We agree with the PCRA court that Appellant’s claim is meritless.

            The right to effective assistance of counsel extends
            to closing arguments, the purpose of which is to
            “sharpen and clarify” the issues presented to the
            trier of fact. Commonwealth v. Bryant, 579 Pa.
            119, 855 A.2d 726, 742 (2004) (quoting from
            Yarborough v. Gentry, 540 U.S. 1, 5–6, 124 S. Ct.
            1, 157 L.Ed.2d 1 (2003)). Because of the broad
            range of legitimate defense strategies at this stage
            of the proceeding, great deference is accorded
            counsel’s     tactical decisions    in   his   closing
            presentation. Yarborough, supra. … Although we
            do not disregard completely the reasonableness of
            other alternatives available to counsel, “the balance
            tips in favor of a finding of effective assistance as
            soon as it is determined that trial counsel’s decision
            had any reasonable basis.” Commonwealth v.
            Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987)
            (citation omitted).

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Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007).

      Instantly, it is clear that trial counsel had a reasonable basis for his

challenged comment, when viewing it in context. Counsel was making the

salient point that the investigation by the police omitted a significant piece of

evidence that could have proven Appellant’s assertion he did not keep the

marked $200.00.       Counsel forcefully argued that the absence of that

evidence precluded the Commonwealth’s ability to prove that element

beyond a reasonable doubt. See N.T., 3/11-12/13, at 272-275. Given our

great deference to trial counsel’s tactical decisions, we conclude trial counsel

had a reasonable basis designed to advance Appellant’s interests in

fashioning his closing argument.      See Cooper, supra.        Accordingly, we

conclude Appellant’s first issue affords him no relief.

      Appellant next claims trial counsel was ineffective for failing to object

to certain hearsay evidence.      We conclude this issue is waived because

Appellant failed to include it in his Rule 1925(b) concise statement.       Rule

1925(b) prescribes that statements “identify each ruling or error that the

appellant intends to challenge with sufficient detail to identify all pertinent

issues for the judge.”      Pa.R.A.P. 1925(b)(4)(ii).     Issues not raised in

accordance with Rule 1925(b)(4) will be considered waived.               Id. at

1925(b)(4)(vii). Our Supreme Court has held that Rule 1925(b) is a bright-

line rule, and “any issues not raised in a Rule 1925(b) statement will be

deemed waived.” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

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       Instantly, Appellant included only two issues in his Rule 1925(b)

statement, which coincide with his first and third questions presented on

appeal.    See Appellant’s Concise Statement of Errors Complained of on

Appeal, 9/4/15, at 1-2. Accordingly, we decline to review Appellant’s second

question raised on appeal.

       Finally, Appellant claims trial counsel was ineffective for failing to

properly introduce certain evidence at trial.      Appellant’s Brief at 32.   The

evidence in question is a receipt book and log reports utilized by Appellant at

the Borough offices and from which he issued the receipt to the property

owner for the $200.00. Id. at 33. Trial counsel questioned Appellant about

his recordkeeping at trial. N.T., 3/11-12/13, at 203-205. At the conclusion

of testimony, the trial court inquired whether the logbook would be entered

into evidence.2 Id. at 243. At first, trial counsel indicated that he would not

be offering it into evidence, but after some on-the-record and off-the-record

discussions, the log reports were entered as a defense exhibit. Id. at 251.

One of the relevant aspects of this evidence to the defense was that the fact

Appellant kept records of the transaction at the Borough offices, subject to

review by Borough authorities, ran counter to the Commonwealth’s assertion


____________________________________________
2
  The receipt given to the property owner was admitted as Commonwealth
exhibit 3. N.T., 3/11-12/13, at 127. The police officer in charge of the
investigation testified that he examined the entire receipt book. Id. at 79.
Appellant also testified about his maintenance of the receipt book at the
Borough offices. Id. at 226.


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that Appellant acted with criminal intent and for pecuniary gain. Appellant’s

Brief at 34.

         Rather than a failure to offer or argue the evidence, Appellant’s claim

seems centered on a purported failure to more persuasively present the

evidence. Id. “[Trial counsel] did not substantiate these facts, which were

an important part of his defense.” Appellant’s Brief at 33. In its closing at

trial,   the   Commonwealth      attempted      to   diminish   the   significance   of

Appellant’s receipt book and recorded notes by emphasizing they were not

integrated with other Borough records subject to checks and balances. N.T.,

3/11-12/13, at 301-302.          Appellant claims trial counsel should have

anticipated and refuted this argument.           “Trial counsel not only failed to

demonstrate that Appellant’s reports were given to and kept by the

[B]orough, it took encouragement from the trial court for him to even

introduce them in the proper way, in the first place.” Appellant’s Brief at 34.

As noted by the PCRA court, however, trial counsel did offer the evidence at

trial and advance the argument to the jury.

               [Appellant] alleges […] that counsel was ineffective
               for   failing   to   properly    introduce  evidence.
               Specifically, [Appellant] argues that counsel failed to
               substantiate evidence that [Appellant] recorded the
               payment from [the property owner] on a receipt and
               documented it in a report.            However, these
               documents were admitted at trial, and [trial counsel]
               questioned [Appellant], a Borough employee familiar
               with Borough procedure, in what manner he kept
               and turned in his receipts and/or reports.
               [Appellant’s] ineffective assistance of counsel claim
               fails as [trial] counsel had a reasonable strategic

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           basis for how he introduced and authenticated this
           evidence, and the underlying claim that he failed to
           properly introduce it is without merit.       Further,
           [Appellant] has not established that he was
           prejudiced by this alleged failure to substantiate this
           evidence.

PCRA Court Opinion, 9/30/15, at 9-10, quoting PCRA Court’s Notice of Intent

to Dismiss, 5/26/15, at 3-4.

      We conclude the record supports the PCRA court’s findings.         Trial

counsel made the fact that Appellant kept accurate written records of his

transaction with the property owner records in his regular receipt book and

record journal, maintained at the Borough offices, a central element of

Appellant’s defense.   N.T., 3/11-12/13, at 267-271.      Appellant, himself,

explained his recordkeeping. Id. at 203-204, 251-256. Now, finding fault

with trial counsel’s approach, Appellant makes no suggestion as to how trial

counsel should have acted other than a bald statement that “trial counsel

could have easily proven that Appellant recorded his interaction with [the

property owner] and his receipt of the $200.00 and this report was kept with

the [B]orough.” Appellant’s Brief at 34. Appellant has failed to demonstrate

ineffective assistance of counsel, as counsel’s actions had a reasonable basis

to advance Appellant’s interests, and because he has not demonstrated that

the outcome would have been different. See Koehler, supra.

      In light of the foregoing, we conclude the PCRA court did not abuse its

discretion or commit an error of law in denying Appellant PCRA relief.




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Accordingly, we affirm the June 23, 2015 order denying Appellant’s PCRA

petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2016




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