J-S81043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MICHAEL S. GELSINGER                     :
                                          :
                    Appellant             :   No. 1513 MDA 2018

           Appeal from the PCRA Order Entered August 17, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0000926-2014


BEFORE:    STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED MARCH 04, 2019

      Appellant, Michael S. Gelsinger, appeals from the order entered in the

Court of Common Pleas of Dauphin County dismissing his first petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§9541-9546 after

a hearing. Herein, Appellant contends the court erred in rejecting his four

ineffective assistance of trial counsel claims. We affirm.

      The PCRA court sets forth the pertinent facts and procedural history, as

follows:

      [At] 1:00 a.m. on December 6, 2013, Joseph Payne-Casiano and
      [his brother,] Petitioner [hereinafter “Appellant”] drove to the
      residence of Payne-Casiano’s girlfriend, Monique Dockens.
      Monique [resided] with her father, Dion Dockens and her sister,
      Tiana Dockens. Tiana was dating Sean Fox, who lived with Justin
      Baxter a few houses away from the Dockens’ residence.

      [An] argument erupted between Baxter and Payne-Casiano, which
      ultimately resulted in Appellant and Baxter brandishing firearms


____________________________________
* Former Justice specially assigned to the Superior Court.
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     at each other.      [Mr.] Dockens intervened, and the parties
     separated.

     At that point, Baxter and Tiana began walking towards [the
     residence of Baxter and Tiana’s boyfriend, Sean Fox], and Payne-
     Casiano and Appellant returned to their vehicle. [According to the
     trial testimony offered by Mr. Dockens,] Payne-Casiano drove his
     vehicle in the direction that Baxter [and Tiana were] walking, and
     Appellant reached out of the passenger window and fired three
     shots at Baxter. Baxter shot back . . . while [he stood near Tiana]
     on the porch of his residence. The shots from Appellant’s gun hit
     and fatally injured Tiana. . . .

     Appellant was ultimately found guilty of first-degree murder,
     attempted homicide, possession of a firearm prohibited, and
     carrying a firearm without a license. Appellant was sentenced [to
     life imprisonment without the possibility of parole for first-degree
     murder, and to concurrent terms of incarceration for the
     remaining convictions].

     [Appellant filed a direct appeal in which he challenged the
     sufficiency of the evidence, the weight of the evidence, and the
     trial court’s denial of Appellant’s motion to sever his trial from co-
     defendant’s trial.      On March 29, 2016, this Court filed its
     memorandum decision affirming judgment of sentence. See
     Commonwealth v. Gelsinger, No. 627 MDA 2015 unpublished
     memorandum (Pa.Super. filed March 29, 2016). Subsequently,
     on September 23, 2016, the Pennsylvania Supreme Court denied
     Appellant’s petition for allowance of appeal.]

     [On June 7, 2017,] Appellant filed a pro se PCRA Petition, and [the
     PCRA court] appointed Jennifer Tobias, Esq., to represent him.
     [After counsel filed an amended PCRA petition, the PCRA court]
     held a Hearing on May 31, 2018 and June 1, 2018 [and thereafter
     directed counsel and the Commonwealth to file post-hearing
     briefs. By its order of August 17, 2018, the PCRA court dismissed
     Appellant’s PCRA petition as meritless.].

PCRA Court Opinion, 8/17/18, at 1-2, 4-5. This timely appeal followed.

     Appellant presents the following questions for our consideration:

     1. Whether Trial Counsel was ineffective for failing to argue that
        Harrisburg Police Department did not perform gun residue

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         testing on Joseph Payne-Casiano, the co-defendant in this
         case?

      2. Whether Trial Counsel was ineffective for failing to object to the
         Commonwealth’s evidence of Justin Baxter’s holster and
         magazine?


      3. Whether Appellate Counsel was ineffective for failing to raise
         the issue on appeal regarding the fact that the Commonwealth
         did not perform gunshot residue on the co-defendant in this
         case?


      4. Whether Appellate Counsel was ineffective for failing to file a
         cross-appeal on direct review as to the unreasonable
         application of established federal and state law.

Appellant’s brief, at 5.

      Our standard of review regarding an order denying post-conviction relief

under the PCRA is whether the determination of the court finds support in the

evidence of record and is free of legal error. Commonwealth v. Ragan, 923

A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding. Commonwealth v. Touw, 781 A.2d

1250, 1252 (Pa. Super. 2001).

      All of Appellant’s issues assert the ineffective assistance of counsel.

With respect to ineffectiveness claims, our Supreme Court has directed that

the following standards apply:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or


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     innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
     “Counsel 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.”
     [Commonwealth v.] Colavita, [ ] 993 A.2d [874,] 886 [(Pa.
     2010)] (citing Strickland[ v. Washington, 104 S.Ct. 2053
     (1984)]). In Pennsylvania, we have refined the Strickland
     performance and prejudice test into a three-part inquiry. See
     [Commonwealth v.] Pierce, [ ] 527 A.2d 973 [(Pa. 1987)].
     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. Commonwealth v. Ali, [ ]
     10 A.3d 282, 291 [(Pa. 2010)]. “If a petitioner fails to prove any
     of these prongs, his claim fails.” Commonwealth v. Simpson,
     [] 66 A.3d 253, 260 [(Pa. 2013)] (citation omitted). Generally,
     counsel’s assistance is deemed constitutionally effective if he
     chose a particular course of conduct that had some reasonable
     basis designed to effectuate his client’s interests. See Ali, supra.
     Where matters of strategy and tactics are concerned, “[a] finding
     that a chosen strategy lacked a reasonable basis is not warranted
     unless it can be concluded that an alternative not chosen offered
     a potential for success substantially greater than the course
     actually pursued.” Colavita, 993 A.2d at 887 (quotation and
     quotation marks omitted).        To demonstrate prejudice, the
     petitioner must show that “there is a reasonable probability that,
     but for counsel’s unprofessional errors, the result of the
     proceedings would have been different.” Commonwealth v.
     King, [ ] 57 A.3d 607, 613 [(Pa. 2012)] (quotation, quotation
     marks, and citation omitted). “‘[A] reasonable probability is a
     probability that is sufficient to undermine confidence in the
     outcome of the proceeding.’” Ali, 10 A.3d at 291 (quoting
     Commonwealth v. Collins, [ ] 957 A.2d 237, 244 [(Pa. 2008)]
     (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

     In Appellant’s first issue, he contends that trial counsel ineffectively

failed to underscore the importance of investigators’ failure to subject his

brother, co-defendant Joseph Payne-Casiano, to the same gunshot residue

test to which it required Appellant and other individuals to submit. Indeed,


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Appellant maintains, one individual tested was Sean Fox, Tiana Dockens’

boyfriend and Baxter’s housemate, whom no one even placed at the shooting

scene. Yet, Appellant’s brother, who rode in the car from which shots were

fired, was never tested for residue. Appellant claims this omission had the

unfairly prejudicial effect of singling him out for a shooting crime that his

brother was equally capable of committing. We disagree.

      At trial, Tiana Dockens’ father testified that he observed Payne-Casiano

driving the car toward Baxter’s house when Appellant, sitting in the passenger

seat, initiated gunfire upon Baxter. N.T. 12/2/14, at 14-35. Monique Dockens

also testified that she witnessed Appellant’s hand come out of the passenger’s

side window and fire the first shots, prompting Baxter to shoot back. N.T. at

108. Significantly, Appellant, himself, admitted at trial that he fired a gun at

Baxter, although he claimed to do so in self-defense. Notably, there was no

suggestion at trial that Payne-Casiano fired a gun during the time in question.

      Therefore, without an evidentiary basis to support testing Payne-

Casiano for gunshot residue, Appellant’s challenge against counsel’s silence

on this matter lacks arguable merit. For this reason, Appellant may not prevail

on his first issue. Moreover, because his third issue—assailing direct appeal

counsel’s advocacy for failing to challenge the verdict based on the failure to

conduct residue testing of Payne-Casiano—derives from the same failed

argument, we find it meritless, as well.

      In Appellant’s second issue, Appellant claims that trial counsel rendered

ineffective assistance when he stipulated to submitting to the jury during

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deliberations a collection of Commonwealth exhibits that included Exhibit C-

11, which consisted of the holster and magazine belonging to the .40 Glock

handgun fired from the porch during the shootout.     Specifically, Appellant

contends counsel should have objected to sending Exhibit C-11 to the jury, as

the items caused him undue prejudice by confusing the jury to conclude that

it was Appellant—and not Baxter—who used those items on the night of the

alleged crime. We discern no merit to Appellant’s claim of undue prejudice or

confusion.

     During trial, the jury learned that the parties stipulated to ballistics

evidence recovered at the shooting scene. Recovered from Baxter’s porch

were spent .40 caliber cartridge cases, which had been fired from a .40 Glock

handgun found outside the property.     The Glock, itself, contained one live

round in the chamber and six rounds in an attached magazine with a 13-round

capacity. N.T. 12/3/14, at 16-21.

     Recovered from Thompson Street, meanwhile, were three spent .380

cartridge cases, the same caliber as the .380 caliber bullet recovered from

Tiana Dockens’ body. The .380 bullets were discharged from an unrecovered

firearm. N.T. at 44-46.

     This ballistics evidence was consistent with the testimony of several

witnesses who described the exchange of gunfire between Baxter, who stood

on his porch with Tiana Dockens, and Appellant, who rode as passenger while

his brother drove on Thompson Street.




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      It follows, therefore, that the only reasonable inference the jury could

have drawn from the evidence was that Appellant fired a number of .380

caliber bullets toward the porch where Baxter and Dockens stood, and one of

those bullets struck and killed Dockens.    As such, we fail to discern what

prejudicial effect counsel’s stipulation to submitting the Commonwealth

exhibits—including the .40 caliber Glock’s magazine and holster—to the jury

deliberation room could have had.

      The crux of Appellant’s argument is that the jury may have mistakenly

believed these items were his and not Baxter’s. We discern no reason to infer

from the record, however, that the jury failed to understand the clear

implication of the evidence that the .40 caliber Glock was fired from the porch

and the .380 ammunition was fired from Appellant’s car.

      Moreover, even assuming arguendo that the jury somehow did

mistakenly attribute the .40 Glock magazine and holster to Appellant,

Appellant fails to demonstrate how this mistake would have made it more

likely for the jury to conclude he was the person who fired the .380 caliber

bullet that killed Tiana Dockens. Indeed, such a mistaken attribution of the

magazine and holster to Appellant would seem more likely to promote the

opposite conclusion, that is, that Appellant could not have fired the .380

ammunition if it was the .40 caliber weapon, instead, that were in his

possession.

      Finally, to the extent Appellant’s argument asserts that the mere

presence of the magazine and holster in the jury deliberation room unduly

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inflamed the jury’s passions so as to render it incapable of reaching a verdict

based on an impartial and objective consideration of the evidence, he cites

neither fact nor legal authority to support this position.      Consequently,

Appellant waives this point on appeal. See Pa.R.A.P. 2119(a) (requiring that

each point treated in an argument must be “followed by such discussion and

citation of authorities as are deemed pertinent”). Even if we declined to apply

waiver doctrine on this point, we would fail to see how the holster and

magazine could have corrupted the jury’s perception of the evidence where

the focus of the first-degree murder trial was on the gunfight between

Appellant and Baxter. Accordingly, Appellant’s second ineffective assistance

of counsel claim fails.

      In Appellant’s final issue, he alleges direct appeal counsel improperly

framed his challenge to the trial court’s denial of his pretrial motion for

severance as a violation of his right to cross-examine Payne-Casiano under

the Confrontation Clause. Specifically, at the joint trial, the Commonwealth

introduced co-defendant Payne-Casiano’s note directing a fellow inmate to

convince a prospective witness to testify in a manner favorable to Appellant’s

defense. Because Payne-Casiano did not testify at trial, Appellant could not

cross-examine him with respect to the note.

      On direct appeal, Appellant argued that admission of his non-testifying

co-defendant’s note violated his confrontation rights pursuant to the United

States Supreme Court decision in Bruton v. United States, 391 U.S. 123

(1968). In Bruton, the High Court recognized that “there are some contexts

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in which the risk that the jury will not, or cannot, follow instructions is so

great, and the consequences of failure so vital to the defendant, that the

practical and human limitations of the jury system cannot be ignored.”

Bruton, 391 U.S. at 135. Accordingly, “[t]he Bruton Court held that, if a

non-testifying co-defendant's confession directly and powerfully implicates the

defendant in the crime, then an instruction to the jury to consider the evidence

only against the co-defendant is insufficient, essentially as a matter of law, to

protect the defendant's confrontation rights.” Commonwealth v. Brown,

925 A.2d 147, 157 (Pa. 2007) (citing Bruton, 391 U.S. at 135–36); accord

Commonwealth v. Canon, 22 A.3d 210, 218 (Pa. 2011).

      We held, however, that because Payne-Casiano’s directive was not an

assertion directly implicating Appellant’s role in the crime, Appellant’s

confrontation clause rights were not violated. Commonwealth v. Gelsinger,

No. 627 MDA 2015, unpublished memorandum at 17-21 (Pa.Super. filed

March 29, 2016).

      Appellant summarily claims direct appeal counsel ineffectively relied on

Bruton to advance his confrontation clause challenge.          To this end, his

counseled brief argues only “that since there was not an opportunity to cross-

examine the co-defendant regarding this note, [Appellant’s] constitutional

rights were violated.     Therefore, he was prejudiced by [direct appeal]

counsel’s failure to file a cross-appeal to challenge this error by the Trial

Court.” Appellant’s brief, at 18.




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      The PCRA court responds that Appellant’s claim in this regard “is not

developed enough to review[, and] should be dismissed [accordingly].” PCRA

Court Opinion, at 4. We agree Appellant’s brief fails to meet the requirements

of Pa.R.A.P. 2119(a), as it lacks a sufficiently developed argument permitting

meaningful review of this ineffectiveness claim. For this reason, Appellant’s

final claim fails.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/04/2019




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