J-A07030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
 JASON MCGONIGAL                          :
                                          :
                      Appellant           :   No. 1101 MDA 2017

                Appeal from the PCRA Order June 12, 2017
    In the Court of Common Pleas of Centre County Criminal Division at
                      No(s): CP-14-CR-0000474-2013


BEFORE:       PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                               FILED JUNE 01, 2018

      Appellant, Jason McGonigal, appeals from the order entered on June 12,

2017, dismissing his first petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The trial court summarized the facts and procedural history of this case

as follows:

      On December 20, 2012, around 9:30 p.m., Monroe Bell entered
      the Puff Super Value store in Philipsburg, Pennsylvania. Peggy
      Marty, a store employee, was re-stocking the soda cooler. She
      heard Bell enter and went to the counter. Bell pulled out a knife
      and told Marty to “get all the money out of the register.” Bell also
      told Marty to give him the cash from a second register that was
      used for lottery receipts. He then demanded two cartons of
      cigarettes. As Bell left the store, Marty heard someone
      immediately outside the door say, “Let's get the fuck out of
      here.” However, Marty was unable to see the person outside.

      An informant provided information to the police that Bell was
      involved in this robbery. When questioned by the police, Bell


____________________________________
* Former Justice specially assigned to the Superior Court.
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     confessed to the robbery and implicated [Appellant] as the person
     outside the store.

     At [Appellant’s] jury trial, Bell testified as follows. [Bell] was living
     with his friend, Donald Pearsall, and Pearsall invited [Appellant],
     who was a friend of theirs from school, to stay for a few days. At
     that time, Bell was using drugs on a daily basis and claimed that
     [Appellant] did as well. [Appellant] suggested that he and Bell
     could get money for drugs by robbing a store. [Appellant] told Bell
     what they should wear and what kind of weapon to use.
     [Appellant] said that they should rob the store around 9:30 p.m.,
     because it would be near closing time and it was unlikely that
     there would be customers inside the store. Initially, Bell refused
     to participate. However, he and [Appellant] were drinking alcohol
     and [Appellant] convinced him. They discussed that [Appellant]
     was going to stay outside as a look-out, while Bell went inside to
     rob the store. Bell and [Appellant] got dressed in the dark clothing
     that they had discussed. [Appellant] got a knife. Then, they
     walked to the store. [Appellant] waited outside while Bell went
     into the store. As Bell was leaving [the store], [Appellant] opened
     the door and told Bell to hurry up. They returned to Pearsall's
     house and divided the money and cigarettes. Bell gave some
     money to Pearsall.

     Pearsall testified that he overheard Bell and [Appellant] talking
     about their plan to rob the store. Pearsall said that Bell did not
     want to participate in the robbery and that [Appellant] was trying
     to convince Bell. Pearsall heard [Appellant] say that he would
     watch the door while Bell went in with a knife. Pearsall told them
     not to do it because he did not want any trouble occurring at his
     house. Pearsall went to bed, but woke up later that night and saw
     Bell and [Appellant] with money, a ski mask, gloves, and cartons
     of cigarettes.

     On September 16, 2013, the jury found [Appellant] guilty of
     conspiracy to commit robbery, conspiracy to commit theft by
     unlawful taking, conspiracy to commit receiving stolen property,
     and receiving stolen property. [18 Pa.C.S.A. § 903 (18 Pa.C.S.A.
     § 3701(a)(1)(ii)); 18 Pa.C.S.A. § 903 (18 Pa.C.S.A. § 3921(a));
     18 Pa.C.S.A. § 903 (18 Pa.C.S.A. § 3925(a)); and 18 Pa.C.S.A. §
     3925(a), respectively.] [Appellant] was acquitted of robbery and
     theft. On October 17, 2013, [Appellant] was sentenced to five to
     ten years' incarceration. On October 28, 2013, [Appellant] timely
     filed a post-sentence motion for a new trial in which he raised a

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       weight of the evidence claim. In a memorandum opinion, the trial
       court denied the motion on February 26, 2014.

       On March 26, 2014, [Appellant] timely filed a notice of appeal.
       The trial court ordered, and [Appellant] timely filed, a concise
       statement of errors complained of on appeal pursuant to
       Pa.R.A.P.1925(b). The trial court filed an opinion that adopted the
       rationale that the court set forth in its February 26, 2014
       memorandum. [This Court affirmed Appellant’s judgment of
       sentence in an unpublished memorandum filed on March 30,
       2015.]

Commonwealth v. McGonigal, 2015 WL 7454233 (Pa. Super. 2015)

(unpublished memorandum) at *1–2.

       Appellant filed a timely PCRA petition on April 4, 2016. Originally, the

PCRA court entered an order purporting to dismiss the PCRA petition, but it

subsequently entered an amended order on October 5, 2016 giving Appellant

notice of the PCRA court’s intention to dismiss the petition without a hearing

pursuant to Pa.R.Crim.P. 907. Thereafter, the PCRA court granted Appellant

leave of court to file an amended PCRA petition. Appellant filed an amended

PCRA petition on November 14, 2016. The PCRA court entered an order, and

accompanying opinion, giving Appellant Rule 907 notice on April 3, 2017. On

June 12, 2017, the PCRA court entered an order dismissing Appellant’s

amended PCRA petition. This timely appeal resulted.1

       Appellant presents the following issues for our review:

____________________________________________


1  Appellant filed a notice of appeal on July 10, 2017. On July 18, 2017, the
PCRA court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on
August 8, 2017. On August 14, 2017, the PCRA court filed an opinion pursuant
to Pa.R.A.P. 1925(a) largely incorporating its rationale from its April 3, 2017
opinion.

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   I.     Whether the [PCRA] court erred in denying Appellant[’s] PCRA
          petition, and, in doing so:

          a. Finding trial counsel was not ineffective for failing to object to prior
             bad act testimony;

          b. Finding trial counsel’s line of questioning of Commonwealth
             witness Pennsylvania State Police Trooper [Richard] Hoover
             regarding Appellant[’s] prior bad acts was reasonable; and,

          c. Finding trial counsel’s failure to request a jury instruction on the
             issue of prior bad acts had a reasonable basis.

Appellant’s Brief at 4.

        Appellant argues, in three sub-arguments, that trial counsel was

ineffective in her treatment of prior bad acts. Id. at 11-20. More specifically,

Appellant claims that trial counsel elicited testimony from Trooper Richard

Hoover pertaining to Donald Pearsall, an acquaintance of Appellant and co-

defendant, Monroe Bell. Id. at 13. Trial counsel asked whether Pearsall told

Trooper Hoover that Appellant “had used too many people in the past and

didn’t want to see him get away with it.”            Id.    Thereafter, when the

Commonwealth questioned Trooper Hoover on re-direct examination, Trooper

Hoover testified that Pearsall “mentioned that [Appellant] had got him tied up

in criminal activity.” Id. at 14.    Appellant argues that the PCRA court erred

by opining that the aforementioned testimony were merely fleeting references

to criminal activity and objecting would have necessarily drawn reference to

it. Id. at 13. Appellant further argues that trial counsel was ineffective for

questioning Trooper Hoover about his conversations with an informant

wherein the informant revealed that Appellant was involved in another,


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unrelated robbery at a “mini mart.” Id. at 17. Appellant claims that trial

counsel could have narrowly tailored her questions to avoid testimony

pertaining to another robbery. Id. at 18.    Appellant maintains “trial counsel

was ineffective for failing to request a curative or cautionary jury instruction

regarding the prior bad act testimony elicited[.]” Id. at 19.

      On appeal from the denial of PCRA relief,

      our standard of review calls for us to determine whether the
      ruling of the PCRA court is supported by the record and 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.
      The PCRA court's factual determinations are entitled to deference,
      but its legal determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal

quotations and citations omitted).

      Our Supreme Court previously determined:

      In order to prevail on a claim of ineffective assistance of counsel,
      an appellant must show: (1) that the claim is of arguable merit;
      (2) that counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) that, but for the errors and omissions
      of counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different.


Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (internal

quotations and citations omitted).

      Regarding prior bad acts under Pa.R.E. 404(b), our Supreme Court

stated:

      Evidence of prior bad acts is inadmissible to prove character or to
      show conduct in conformity with that character. Such evidence
      is, however, admissible when offered to prove some other relevant

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J-A07030-18


      fact, such as motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident. […T]here
      are exceptions to the rule that reference to prior bad acts is error
      “where there is a legitimate basis for the introduction of the
      evidence other than a mere attempt to establish the accused's
      predisposition   to   commit      the   crime    charged.”     [See
      Commonwealth v. Spruill, 391 A.2d 1048, 1050 (Pa. 1978)].

      However, while evidence of prior bad acts may be relevant and
      admissible, there is the “potential for misunderstanding on the
      part of the        jury    when this     type     of evidence       is
      admitted.” Commonwealth v. Claypool, 495 A.2d 176, 179
      (Pa. 1985). This evidence must, therefore, “be accompanied by a
      cautionary instruction which fully and carefully explains to the jury
      the limited purpose for which that evidence has been
      admitted.” Id. In the context of an ineffectiveness claim,
      counsel's failure to request a cautionary instruction regarding
      evidence of other crimes or prior bad acts does not constitute per
      se ineffectiveness; “[r]ather, in order to obtain relief under such
      a claim, a defendant must still satisfy each of the three prongs of
      the test for ineffective assistance of counsel.” Commonwealth
      v. Buehl, 658 A.2d 771, 778 (Pa. 1995) (plurality).

Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013) (some internal

citations and quotations omitted).

      Moreover,

      [w]here evidence of a defendant's prior bad acts is merely
      a fleeting or vague reference, however, trial counsel might
      reasonably decline to object or request a limiting instruction to
      avoid drawing attention to a reference that might have gone
      relatively unnoticed by the jury.

Hutchinson, 811 A.2d at 562.

      Here, the PCRA court found that Appellant “ha[d] not proven his claim

for ineffective assistance of counsel, because [trial counsel’s] actions/inactions

had a reasonable basis and [Appellant] failed to demonstrate how her

actions/inactions prejudiced him.” Trial Court Opinion, 4/3/2017, at 4. More


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J-A07030-18



specifically, the PCRA court determined that “it was reasonable not to object

to Trooper Hoover’s fleeting reference that [Appellant] had gotten others ‘tied

up in criminal activity’ and [the Commonwealth’s] question during Mr. Bell’s

direct testimony indicating [Appellant’s] potential involvement in a separate

crime.”     Id. The PCRA court also determined that counsel’s questions

“pertaining to information obtained by [a confidential informant] to be part of

a reasonable trial strategy” because trial counsel “was attempting to discredit

[Appellant’s] co-conspirator.”        Id. at 4-5.   Accordingly, the PCRA court

determined that the foregoing references to Appellant’s participation in crime,

separate and apart from the crimes for which he was being tried, were fleeting

and it was reasonable for trial counsel to forego a jury instruction on prior bad

acts. Id. at 6.

       Upon review of the record, we conclude that Appellant failed to plead

and prove a plausible claim that he was prejudiced by trial counsel’s actions.

Initially, we note that Appellant’s co-defendant, Monroe Bell, testified at

Appellant’s trial and directly implicated Appellant in the robbery of the Puff

Super Value store.2 N.T., 9/16/2013, at 54.           Moreover, Donald Pearsall

testified that he heard Appellant and Bell talking about the robbery beforehand

and saw the proceeds of the robbery and a ski mask and gloves in Appellant’s

possession immediately afterwards. Id. at 87-90.
____________________________________________


2 Bell admitted that he, acting alone, committed another, unrelated robbery
several months earlier at a “mini mart.” Id. at 70-71. To bolster his
credibility, Bell testified that he could have falsely implicated Appellant in the
mini-mart robbery, but he did not. Id. at 79, 82.

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J-A07030-18



      In view of overwhelming and uncontradicted direct evidence of

Appellant’s involvement in the Puff Super Value store robbery, we cannot

agree that trial counsel’s alleged actions or inactions with respect to prior bad

acts caused Appellant to suffer prejudice. The allegations of trial counsel error

cited by Appellant were not attempts to establish Appellant’s predisposition to

commit the crimes charged.        In reviewing trial counsel’s questioning of

Trooper Hoover regarding Donald Pearsall, the purpose was to demonstrate

Donald Pearsall’s bias against Appellant. Trial counsel asked Trooper Hoover

if there was “bad blood” between the men. N.T., 9/16/2013, at 104-105. The

Commonwealth asked follow-up questions and Trooper Hoover made fleeting

reference to unspecified prior criminal “activity” and/or “endeavors.”    Id. at

105. Trial counsel also asked Trooper Hoover if an informant ever mentioned

Appellant. Id. at 101. Trooper Hoover testified that the informant mentioned

Appellant in a “mini-mart robbery, not the Puff Tobacco Outlet.” Id. at 101.

This line of questioning was an attempt to show inaccuracies between the

informant and co-defendant, Monroe Bell. Moreover, Appellant has not shown

how he was prejudiced by these comments in light of Monroe Bell’s testimony

that Appellant did not participate in the other robbery.          Requesting a

cautionary instruction would have only highlighted the aforementioned

fleeting references to prior bad acts. Appellant has failed to prove that the

outcome of trial would have been different but for trial counsel’s actions or

inactions. Hence, because trial counsel was effective, we discern no abuse of

discretion or error of law in dismissing Appellant’s PCRA petition.

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J-A07030-18



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/01/18




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