J-S24033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOHNATHAN KEITH GODINES                    :
                                               :
                      Appellant                :   No. 1586 WDA 2016

                  Appeal from the PCRA Order October 4, 2016
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000524-2012


BEFORE:      PANELLA, STABILE, JJ., and STEVENS, P.J.E*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED APRIL 19, 2017

        Appellant, Johnathan Keith Godines, appeals from the October 4,

2016, order entered in the Court of Common Pleas of Fayette County

denying his first petition filed under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, following an evidentiary hearing. After a careful

review, we affirm.

        The relevant facts and procedural history were previously set forth by

this Court on direct appeal, in part, as follows:

             [T]he trial evidence establishes that the crimes occurred
        on November 15, 2011, in the city of Brownsville, Fayette
        County, Pennsylvania. [Appellant], wearing a dark colored
        hooded sweatshirt, was observed by several trial witnesses as he
        approached the now-deceased victim as the latter sat in the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     driver’s seat of his car, which was parked curbside along a street
     in Brownsville. Loud [ ] arguing attracted the attention of
     Commonwealth witnesses Megan Boger and Tabitha Zieglar, who
     each testified that they observed [Appellant] kicking the side of
     the victim’s car six or seven times. N.T., [Trial, 10/7/13,] pp.
     30, 45–46, 49, 56-57.
           Each witness then saw [Appellant] open the driver’s door
     of the victim’s car and drag the victim out to the ground, and
     then [Appellant] leaning and shifting his body toward the victim
     in such a way that both of them knew [Appellant] was kicking
     the man on the ground, with force, at least six times. Id. pp.
     23–24, 30–32, 41–42, 45–47. Each of these named witnesses
     then saw [Appellant] walk away. Id. pp. 36–37, 48, 104. The
     women observed the victim get up from the ground and slowly
     pursue [Appellant] around a building and out of their sight. Id.
     pp. 25, 37, 39–40, 48, 59.
            Jerry Abbey, a bartender in the Antique Bar and Grill, in
     front of which business a further altercation took place, also
     testified as a Commonwealth witness. Id. pp. 102–105, 110–
     11. He told the jury that he could see [Appellant], whom he
     knew, kicking and swinging his fists at something approximately
     fifteen times. Id. Three other Commonwealth witnesses, Fawn
     Petrosky and her daughters, Emma and Brianna, testified that
     they saw an elderly man (the victim) cross the street in front of
     them as they were driving through Brownsville, id. pp. 70, 77,
     82, 92–93, and then heard loud argumentative voices which
     drew their attention to the scene behind them. Id. There they
     could see [Appellant] swinging his arm to punch the older victim
     several times. Id. pp. 71–72, 84–85, 93. [Appellant], taller
     than the victim to begin with, appeared to be standing on the
     street’s curb so as to be higher up than the victim. Id. p. 85,
     94. Brianna Petrosky observed the older man trying to protect
     himself by ducking down and putting his hands up over his head,
     while [Appellant] punched downward at him in a chopping
     motion. Id. pp. 94–95. Emma Petrosky then used her cell
     phone to call 9–1–1 to report the incident. Id. p. 85.
             A short time later, witnesses Boger and Zieglar, who were
     still in the area of Brownsville where they had seen [Appellant]
     pull the victim out of his car and kick him in the street, saw the
     elderly victim returning to his car. At that time, they could see
     that he had a split lip and blood on his mouth, as well as a
     scratch on the side of his face and dirt and pebbles on his body.
     Id. pp. 37–38, 49. The victim was limping and appeared to be

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     hurt. Id. p. 50. In addition, he was acting as though he was
     not sure what was going on. Id. When the first responding
     police officer, Brownsville Police Officer Robert Mammarella,
     arrived on the scene, he was able to have a coherent
     conversation with the victim, but his condition noticeably
     deteriorated before the ambulance arrived. Id. p. 190. The
     victim was transported to a hospital in Pittsburgh, where he died
     on December 1, 2011.
            At trial, the Commonwealth's expert, forensic pathologist
     Doctor Todd Luckasevic, who performed the autopsy on
     December 2, 2011, testified that the victim suffered a thalamic
     hemorrhage and associated infarction with superimposed acute
     hemorrhage. Id. p. 238. He went on to opine that the victim
     likely had an adrenaline rush while he was being assaulted, and
     the adrenaline rush caused an increase in his blood pressure
     which in turn led to the thalamic bleed. Id. p. 140. He then
     said there was also an infarction in the back of the brain that cut
     off the blood supply and caused necrosis there, id. pp. 141, 143,
     which occurred when atherosclerotic plaque broke off and lodged
     in an artery, clogging it. Id. p. 148. [The victim] contracted
     pneumonia at some point, and the acute cause of death was the
     severe bronchopneumonia. Id. p. 150.
           Nevertheless, Doctor Luckasevic ruled the death a
     homicide based on the chain of events, e.g., the assault caused
     him to be taken to one hospital where he exhibited signs of the
     thalamic hemorrhage, leading to him being life-flighted to Mercy
     Hospital in Pittsburgh, where he was placed on life-supporting
     mechanisms. Id. p. 151. The thalamic bleed caused weakness
     on his left side, which caused the victim to aspirate, in turn
     causing the acute bronchopneumonia. Id. p. 152. The expert
     acknowledged that the victim had a medical history including
     hypertension/high blood pressure, atrial fibrillation for which he
     was prescribed the drug Coumadin, and related changes to the
     heart muscle and the kidneys. Id. pp. 153–54.
            [Represented by Attorneys Michael Garofalo and Benjamin
     Goodwin of the Public Defender’s Office, Appellant proceeded to]
     a...jury trial wherein he was found guilty on October 10, 2013,
     of Third Degree Murder at Count I, Aggravated Assault at Count
     II, Simple Assault at Count III, Recklessly Endangering Another
     Person at Count IV, and lastly at Count V, Disorderly Conduct, as
     the result of a physical altercation and the subsequent death of
     the other participant, John Eicholtz [“the victim”]. [Appellant]
     was sentenced on October 17, 2013, at Count 1, Murder in the

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     Third Degree, to a term of imprisonment of not less than twenty
     years nor more than forty years, and at Count 2, Aggravated
     Assault, to a concurrent term of not less than ten years nor more
     than twenty years. At Counts 3, 4, and 5, the Court accepted
     the guilty verdicts without the imposition of further penalty.

Commonwealth v. Godines, 1904 WDA 2013, 2014 WL 10752251, at *1–

3 (Pa.Super. filed. Dec. 1, 2014) (unpublished memorandum).

     Appellant filed a post-sentence motion, which the trial court denied,

and Appellant then filed a direct appeal to this Court. On appeal, Appellant

challenged the sufficiency and weight of the evidence supporting his

convictions, contended the prosecutor improperly committed misconduct

during closing arguments, averred the trial court’s jury instructions were

improper, argued the trial court erred in permitting the Commonwealth to

introduce at trial a recorded jail conversation between Appellant and another

person, presented a challenge to the discretionary aspects of his sentence,

and contended the trial court’s concurrent sentence for aggravated assault

was illegal since the conviction merged with third degree murder for

sentencing purposes.

     This Court agreed with Appellant’s legality of sentencing claim, but

found his remaining claims to be either waived or meritless. Accordingly, by

memorandum filed on December 1, 2014, we vacated the judgment of

sentence as to aggravated assault, but affirmed in all other respects.   Id.

Appellant did not file a petition for allowance of appeal with our Supreme

Court.


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      On or about September 30, 2015, Appellant filed a timely pro se PCRA

petition, and James V. Natale, Esquire, was appointed to represent

Appellant. Attorney Natale filed an amended PCRA petition, and the PCRA

court permitted Appellant to employ Dr. Neil Hoffman, a medical expert in

pathology, to review the existing medical records pertaining to the victim’s

murder.

      Subsequently, Attorney Natale filed an emergency motion to withdraw

as counsel based on a conflict of interest. The PCRA court granted Attorney

Natale’s motion and appointed Dianne Zerega to represent Appellant.         On

July 27, 2016, Appellant proceeded to a PCRA hearing, and by order and

opinion filed on October 4, 2016, the PCRA court denied Appellant’s PCRA

petition. This timely counseled appeal followed, and all Pa.R.A.P. 1925

requirements have been met.

      On appeal, Appellant presents the following sole issue for our review:

            Was trial counsel ineffective for failing to find and present
      testimony from a forensic pathologist to testify as to the cause of
      death of the victim, since his death occurred as a result of a
      hypertensive event that resulted in the victim dying of
      pneumonia?

Appellant’s Brief at 6.

            When reviewing the denial of a PCRA petition, we must
      determine whether the PCRA court’s order is supported by the
      record and free of legal error. Generally, we are bound by a
      PCRA court’s credibility determinations. However, with regard to
      a court’s legal conclusions, we apply a de novo standard.




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Commonwealth v. Johnson, --- Pa. ---, ---, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).

     Furthermore,

           In order to be eligible for PCRA relief, the petitioner must
     prove by a preponderance of the evidence that his conviction or
     sentence resulted from one or more of the enumerated
     circumstances found in Section 9543(a)(2), which includes the
     ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
           It is well-established that 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. To prevail on an ineffectiveness
     claim, the petitioner has the burden to prove that (1) the
     underlying substantive claim has arguable merit; (2) counsel
     whose effectiveness is being challenged did not have a
     reasonable basis for his or her actions or failure to act; and (3)
     the petitioner suffered prejudice as a result of counsel’s deficient
     performance. The failure to satisfy any one of the prongs will
     cause the entire claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)

(quotation marks, quotations, and citations omitted).

          Regarding the prejudice prong, a petitioner must
     demonstrate that there is a reasonable probability that the
     outcome of the proceedings would have been different but for
     counsel’s action or inaction....
           We need not analyze the prongs of an ineffectiveness claim
     in any particular order. Rather, we may discuss first any prong
     that an appellant cannot satisfy under the prevailing law and the
     applicable facts and circumstances of the case. Finally, counsel
     cannot be deemed ineffective for failing to raise a meritless
     claim.

Johnson, --- Pa. at ---, 139 A.3d at 1272 (citations omitted).

     Appellant argues his trial attorneys were ineffective in failing to find

and present testimony of a forensic pathologist, such as Dr. Hoffman, to

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testify as to the cause of death of the victim. Appellant admits that his trial

attorneys presented the testimony of the victim’s treating neurologist, Dr.

Maxim Hammer, and that Dr. Hammer’s trial testimony was consistent with

Dr. Hoffman’s report, which PCRA counsel entered into evidence at the PCRA

hearing.   Appellant’s Brief at 11-12.     Nevertheless, Appellant avers that

instead of offering the testimony of Dr. Hammer his trial attorneys should

have presented the testimony of a forensic pathologist, such as Dr. Hoffman,

to rebut the testimony of the Commonwealth’s expert witness, Dr. Todd

Luckasevic, who is a forensic pathologist.     Assuming, arguendo, there is

arguable merit to the underlying claim, we agree with the PCRA court that

Appellant has not met the remaining prongs of the ineffectiveness test. See

Benner, supra.

      As indicated supra, Appellant’s trial attorneys cannot be deemed

ineffective unless their chosen actions (or inactions) lacked a reasonable

basis. See Benner, supra. As our Supreme Court has held:

      Generally, 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.        A claim of
      ineffectiveness cannot succeed through comparing, in hindsight,
      the trial strategy employed with alternatives not pursued.

Commonwealth v. Puksar, 597 Pa. 240, 256-57, 951 A.2d 267, 277

(2008) (quotation marks, quotation, and citation omitted).

      In the case sub judice, in explaining the reasons the defense

presented the testimony of Dr. Hammer, as opposed to the testimony of a

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forensic pathologist, to rebut the Commonwealth’s expert, Attorney Garofalo

testified as follows on direct-examination at the PCRA hearing:

     Q: And upon your review of [Dr. Luckasevic’s] report did you
     consider calling a medical expert of your own?
     A: We had discussed that, and strategically when we were able
     to get Dr. Hammer. . .to come and testify as a fact witness, the
     treating physician and head of stroke treatment at the hospital
     where the victim was treated, we had opted not to try and retain
     a pathologist based upon what we had discussed with Dr.
     Hammer and based upon what was already in the report of the
     pathologist, Dr. Luckasevic.
     Q: In your conversations with Dr. Hammer what was it, do I
     understand that you felt that Dr. Hammer’s testimony was
     sufficient to rebut Dr. Luckasevic’s?
     A: Yes. We also had spoken to two other doctors. We spoke to
     Dr. Philip Reilly together. [Attorney] Goodwin and I went down
     to the Coroner’s Office and met with him and discussed with him
     what our theory of the case was and I believe, I wasn’t part of
     the conversation, but Mr. Goodwin informed me that he spoke
     directly with Dr. Wecht about the case as well and then I had, as
     we were dividing up the work, I’m the one that spoke to Dr.
     Hammer.
     Q: And upon talking to these individuals why did you decide,
     what was your thought process behind deciding that Dr. Hammer
     was sufficient?
     A: Well based on the fact that he was the head of the
     department that treats stroke suffers and that the testimony
     that he provided and everything that he had told us in advance,
     which he testified to, was that had the family not stopped
     treatment of [the victim,] that while he would have lived a life
     with some impairments as a result of the stroke, he would have
     survived and likely would have been alive even at the time of
     trial, if they had continued medical treatment.
     Q: And so Dr. Hammer then based on your understanding of his
     testimony and his opinion was essentially that the cause of death
     was the family choosing to end life supporting treatment.
     A: Correct. Providing comfort measures only I think is what the
     actual directive was but, again, I haven’t read the file in three
     years.

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                                 ***
      Q: And Dr. Hammer was board certified. Is that correct?
      A: Yes, he was the head of Stroke Treatment at, I think it was
      Presbyterian, Presbyterian or Mercy Hospital, I don’t remember
      which one. It was a UPMC Hospital.
      Q: Was Dr. Hammer the head of the stroke division at the
      hospital where...the victim was treated and ultimately died?
      A: Yes, that’s my understanding....
      Q: And was Dr. Hammer actually listed as the supervising
      physician in [the victim’s] case?
      A: I believe that he was....
      Q: And did the fact that Dr. Hammer rather than Dr. Luckasevic
      or any other doctor, the fact that he had actual experience in
      dealing with this case, [the victim’s] treatment while he was still
      alive, did that play in your decision to use him?
      A: Yeah, that made us think that it was pretty weighty
      testimony.

N.T., PCRA hearing, 7/27/16, at 5-9.

      Attorney Garofalo’s co-counsel, Attorney Goodwin, confirmed at the

PCRA hearing that he and Attorney Garofalo decided to call Dr. Hammer as

an expert trial witness for the defense since “[h]e was actually the individual

who either treated [the victim] or who had supervised the treatment of [the

victim]. He was the head of, I think stroke care or cardiovascular disease at

a UPMC Hospital.” Id. at 16. Attorney Goodwin noted that Dr. Hammer was

presented as a defense witness because he was willing to, and in fact did,

testify at trial that but for the victim’s family’s direction to discontinue the

administration of antibiotics, “[c]hances are that he would [still] be alive[.]”

N.T., Trial, 10/7/13, at 348; N.T., PCRA hearing, 7/27/16, at 17.




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       Based on the aforementioned, we agree with the PCRA court that

Appellant’s trial attorneys’ “decision to employ Dr. Hammer as the defensive

expert witness was eminently reasonable and clearly designed to effectuate

[their] client’s best interest.”1 PCRA Court’s Opinion, filed 10/4/16, at 4.

       Finally, it bears mentioning that Appellant has failed to demonstrate

that he was prejudiced by his trial attorneys’ failure to present the testimony

of a forensic pathologist, such as Dr. Hoffman, on behalf of the defense. We

find persuasive the PCRA court’s rationale in this regard:


____________________________________________


1
  Additionally, as the PCRA court cogently noted, even in situations where
defense attorneys have not presented experts of their own to rebut
Commonwealth witnesses, our appellate courts have declined to find
ineffectiveness if the defense attorneys were able to effectively cross-
examine the prosecution’s experts. See Commonwealth v. Miller, 605 Pa.
1, 987 A.2d 638 (2009) (finding defense counsel’s trial strategy reasonable
in first-degree murder trial where the defense did not present expert
witnesses to rebut the Commonwealth expert on issue of whether the
defendant raped the victim since defense counsel sufficiently cross-examined
the Commonwealth expert); Commonwealth v. Copenhefer, 553 Pa. 285,
307, 719 A.2d 242, 253 (1998) (“Trial counsel need not introduce expert
testimony on his client’s behalf if he is able effectively to cross-examine
prosecution witnesses and elicit helpful testimony.”) (citations omitted)).
       In the case sub judice, the PCRA court concluded that “review of the
trial transcript, as well as the testimony at the PCRA hearing, shows that
trial counsel w[ere] quite effective in [their] cross-examination of Dr.
Luckasevic[.]” PCRA Court’s Opinion, filed 10/4/16, at 4 (indicating trial
counsel established on cross-examination that “the victim did not die of
trauma from physical blows, the victim had pre-existing medical issues that
could have caused his stroke from anger or elevated adrenaline rush, that
the blows from the assault cannot be proven to have triggered such an
event, and the actual cause of death was pneumonia”). We agree with the
PCRA court’s analysis in this regard.




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      The Court...gives no weight to PCRA counsel’s argument that
      merely adding Dr. Hoffman as a witness to provide cumulative
      testimony, solely because he is a forensic pathologist, “would
      have been successful in creating some doubt and [...] but for
      counsel’s failure to get an equally certified [forensic
      pathologist...] the outcome would have been different.” The
      Court finds that [Appellant] [has demonstrated] no prejudice
      whatsoever from trial counsel’s strategic decision to use the
      victim’s treating physician as the defensive expert witness,
      rather than engaging a forensic pathologist simply because he is
      a forensic pathologist.

PCRA Court’s Opinion, filed 10/4/16, at 5 (quotation omitted).

      For all of the foregoing reasons, we conclude that Appellant has failed

to demonstrate that his trial attorneys were ineffective, and accordingly, we

affirm the PCRA court’s denial of Appellant’s first PCRA petition on this basis.

      Affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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