J-S05045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LANCE PATRICK GREENAWALT,                  :
                                               :
                       Appellant               :       No. 892 MDA 2019

            Appeal from the PCRA Order Entered February 19, 2019
             n the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000347-2011

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                              FILED APRIL 21, 2020

       Lance Patrick Greenawalt (“Greenawalt”) appeals from the Order

denying his first Petition for relief filed pursuant to the Post Conviction Relief

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

       On April 30, 2006, Greenawalt broke into the home of Daniel Keys

(“Keys”) and assaulted Keys by throwing boiling water on his face and striking

him numerous times in the head, arms, and torso with a baseball bat. 1 As a

result of the attack, Keys suffered injuries to his eyes, lacerations to his head

that required 103 stitches, three broken fingers on each hand, a broken wrist,

broken hand, and burns to his head and the surrounding area. Keys only




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1Keys was not at his home when Greenawalt broke in. Greenawalt attacked
Keys when Keys returned home and entered through the front door.
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briefly saw his attacker, who was wearing a mask, and was unable to identify

him to police.

      Pennsylvania State Police Trooper Benjamin Wilson (“Trooper Wilson”)

investigated Keys’s assault. On September 7, 2010, Trooper Wilson was at

Camp Hill State Correctional Institution and was informed by prison personnel

that Greenawalt, who was incarcerated there on unrelated convictions, had

been soliciting a fellow inmate, Timothy Bryce (“Bryce”), to commit murder

for Greenawalt. Trooper Wilson and Pennsylvania State Trooper Shaun Pugh

(“Trooper Pugh”) interviewed Bryce, who stated that Greenawalt had solicited

Bryce to murder John Lloyd (“Lloyd”) and Adams County Court of Common

Pleas Judge Michael George (“Judge George”). Lloyd is Keys’s brother. Judge

George had presided over Greenawalt’s previous criminal trial on unrelated

charges. Bryce also stated that Greenawalt had admitted to committing the

April 20, 2006, burglary of and assault on Keys.

      After substantiating Bryce’s claims, Trooper Wilson filed with this Court

an Application for the interception of communications (the “Wiretap

Application”), in order to install a recording device in the prison cell shared by

Greenawalt and Bryce. This Court found that there was probable cause to

believe that communications would take place between Greenawalt and Bryce

regarding the planning and commission of illegal acts, and issued an Order

Authorizing Interception of Communications (the “Wiretap Order”).




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        Between October 5, and November 24, 2010, Greenawalt and Bryce

engaged in several conversations relating to Greenawalt’s prior solicitations to

kill Judge George and Lloyd, and Greenawalt also solicited Bryce to murder

Keys.    Trooper Wilson subsequently interviewed Greenawalt, and advised

Greenawalt that his incriminating statements had been recorded. Greenawalt

admitted to engaging in these conversations, but claimed that they were just

“jail house talk,” and not meant to be taken seriously.

        Greenawalt was subsequently charged, in relevant part, with one count

each of attempt to commit criminal homicide, aggravated assault and

burglary, and three counts of criminal solicitation to commit criminal homicide.

Greenawalt filed an Omnibus Pretrial Motion, which contained, inter alia,

Motions to (1) suppress the incriminating statements made to Trooper Wilson;

(2) sever the three counts of criminal solicitation to commit criminal homicide

from the charges relating to Greenawalt’s assault of Keys; and (3) suppress

the recordings taken from the recording device that was planted in

Greenawalt’s prison cell. Following a hearing and the submission of briefs,

the trial court granted in part Greenawalt’s Motion to sever charges, and

denied the two Motions to suppress. The trial court severed the charge of

solicitation to commit homicide relating to Judge George from the remaining

charges.

        On March 14, 2013, the Commonwealth and Greenawalt filed a

Stipulation, wherein they agreed that Bryce had been previously convicted of


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certain enumerated crimes, including obstruction of justice and false reports,

and that this evidence would be admissible at trial for crimen falsi purposes.

On March 15, 2013, Greenawalt filed a Motion in limine, seeking to prevent

Bryce from testifying at trial based on these crimes, which purportedly made

his testimony unreliable. On March 18, 2013, the trial court denied the Motion.

       Following the two severed jury trials, Greenawalt was found guilty of

one count each of attempt to commit criminal homicide, aggravated assault,

criminal attempt to commit aggravated assault and burglary, and three counts

of solicitation to commit criminal homicide.2 Greenawalt was sentenced to an

aggregate term of 40 to 90 years in prison.3

       This Court affirmed Greenawalt’s judgment of sentence.                See

Commonwealth v. Greenawalt,                    106   A.3d 176   (Pa. Super. 2014)

(unpublished memorandum).4 Greenawalt did not seek allowance of appeal

with the Pennsylvania Supreme Court.




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2 Greenawalt’s trial regarding the charge for criminal solicitation to commit
criminal homicide relating to Judge George occurred over a year after the trial
for the other charges.

3 Greenawalt was sentenced to serve 10 to 20 years in prison on the charge
for solicitation to commit criminal homicide relating to Judge George, and 30
to 70 years in prison on the remaining charges. The sentences were ordered
to run consecutively.

4Greenawalt filed his Notice of Appeal following his first trial, and he did not
appeal his judgment of sentence for his conviction of criminal solicitation to
commit criminal homicide relating to Judge George.

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      On August 25, 2015, Greenawalt filed the instant timely PCRA Petition.

Greenawalt subsequently filed two Amended PCRA Petitions, with the second

Amended Petition being filed on June 28, 2017. Greenawalt claimed in his

second Amended Petition several allegations of ineffective assistance of

counsel, including the claims discussed herein, and trial counsel’s failure to

request a pre-sentence mental health examination. Following a hearing, the

PCRA court granted Greenawalt’s PCRA Petition on the claim regarding trial

counsel’s failure to request a pre-sentence mental health examination, and

denied his Petition in all other respects. The PCRA court vacated Greenawalt’s

judgment of sentence; ordered that he undergo a mental health examination;

and directed the preparation of a pre-sentence investigation report, to include

the results of Greenawalt’s mental health examination.     Greenawalt filed a

timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

      On appeal, Greenawalt presents the following questions for our review:

      I. Whether the PCRA [c]ourt erred in denying [Greenawalt] relief
      based upon [Greenawalt’s] claims that trial counsel was
      ineffective by failing to file a motion to exclude and suppress the
      [W]iretap [A]pplication used to intercept [Greenawalt’s] oral
      communications pursuant to Pennsylvania’s Wiretapping and
      Electronic Surveillance Control Act?

      II. Whether the PCRA [c]ourt erred in denying [Greenawalt] relief
      based on [Greenawalt’s] claim that trial counsel was ineffective by
      failing to conduct a pretrial mental health examination of
      [Greenawalt] to determine whether [Greenawalt] could form the
      specific intent to commit the criminal acts of which he was
      accused?



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       III. Whether the PCRA [c]ourt erred in denying [Greenawalt] relief
       based upon [Greenawalt’s] claim that trial counsel was ineffective
       by failing to investigate and present character evidence at trial?

       IV. Whether the PCRA [c]ourt erred in denying [Greenawalt] relief
       based upon [Greenawalt]’s claim that trial counsel was ineffective
       by failing to request severance of the crimes of violence that
       prejudiced [Greenawalt] at trial by presenting evidence of
       aggressive and assaultive behavior to the jury?

Brief for Appellant at 4.

       “The standard of review of an order [denying] a PCRA petition is whether

that determination is supported by the evidence of record and is free of legal

error.”    Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017).

“The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Id. (citation omitted).

       To prevail on a claim of ineffective assistance of counsel, a petitioner

must plead and prove by a preponderance of the evidence that counsel’s

ineffectiveness “so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.”          42 Pa.C.S.A.

§ 9543(a)(2)(ii). Specifically, a petitioner must establish that “the underlying

claim has arguable merit; second, that counsel had no reasonable basis for

his action or inaction; and third, that [the a]ppellant was prejudiced.”

Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa. Super. 2014). “A

PCRA      petitioner   must   address   each   of   these   prongs   on   appeal.”

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).

             A court is not required to analyze the elements of an
       ineffectiveness claim in any particular order of priority; instead, if


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      a claim fails under any necessary element of the ineffectiveness
      test, the court may proceed to that element first. Finally, counsel
      cannot be deemed ineffective for failing to raise a meritless claim.

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014).

      In his first claim, Greenawalt alleges that his trial counsel, Michael D.

Rentschler, Esquire (“Attorney Rentschler”), was ineffective in failing to file a

motion to exclude the evidence obtained from the recording device. See Brief

for Appellant at 19-25. Greenawalt purports to challenge this Court’s Wiretap

Order under Section 5721.1(b)(2) of the Wiretap Act, see 18 Pa.C.S.A.

§§ 5701-5782.     Greenawalt claims that the Wiretap Application and the

Affidavit of Probable Cause, which was attached thereto, were defective

because they did not disclose (1) Bryce’s criminal history; (2) the fact that the

Pennsylvania State Police had been investigating a claim that a third-party

had previously solicited Bryce to kill a state trooper; and (3) an indication as

to whether the personnel who intended to set up and use the recording device

were “B” certified.   Id. at 20-25.     Greenawalt argues that had Attorney

Rentschler filed a motion to suppress the evidence obtained from the recording

device on these grounds, the trial court would have likely suppressed the

evidence, and Greenawalt would have been acquitted. Id. at 25.

             Section 5721.1 of the Wiretap Act provides that an
      aggrieved party may move to exclude the contents of a wiretap or
      evidence derived therefrom on six grounds. This creates a
      situation where a Common Pleas judge can rule that a Superior
      Court judge erred when determining that there was a legal basis
      to authorize a wiretap. Section 5721.1 further provides that the
      only judicial remedies and sanctions for non-constitutional
      violations of the wiretap provisions are those exclusively found in
      5721.1.     The plain language of section 5721.1 limits the


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     availability of suppression as a remedy for non-constitutional
     violations to six grounds specifically enumerated.

Commonwealth v. Steward, 918 A.2d 758, 760 (Pa. Super. 2007) (citation

omitted).

     Section 5721.1(b)(2) provides that a recording may be suppressed

where “[t]he order of authorization … was not supported by probable cause

with respect to the matters set forth in section 5710(a)(1) and (2) (relating

to grounds for entry of order).” 18 Pa.C.S.A. § 5721.1(b)(2).

     Subsections 5710(a)(1) and (2) of the Wiretap Act state as follows:

     (a) Application.--Upon consideration of an application, [a
     Superior Court] judge may enter an ex parte order, as requested
     or as modified, authorizing the interception of wire, electronic or
     oral communications anywhere within the Commonwealth, if the
     judge determines on the basis of the facts submitted by the
     applicant that there is probable cause for belief that all the
     following conditions exist:

        (1) the person whose communications are to be intercepted
        is committing, has or had committed or is about to commit
        an offense as provided in section 5708 (relating to order
        authorizing interception of wire, electronic or oral
        communications);

        (2) particular communications concerning such offense may
        be obtained through such interception;

18 Pa.C.S.A. § 5710(a)(1), (2). Aggravated assault and burglary are included

offenses under Section 5708. See id. § 5708(a)(1).

           The standard for determining whether probable cause
     existed for an order authorizing interception of telephone
     communications is the same as that used to determine probable
     cause for search warrants.

            ….



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            [I]n an application for a wiretap, the Commonwealth must
      establish probable cause to believe that (1) the person whose
      communication is to be intercepted has committed an offense as
      provided in the state wiretap law, 18 Pa.C.S.[A. §§ 5701-5782],
      (2) communications concerning that offense will be transmitted,
      and (3) such communications will be intercepted on the facility
      under surveillance. In reviewing the adequacy of the application
      to support the issuance of an order of authorization, we will
      interpret the application in a common sense manner, not overly
      technical, with due deference to the findings of the issuing
      authority.

Commonwealth v. Birdseye, 637 A.2d 1036, 1042 (Pa. Super. 1994)

(quotation marks and some citations omitted).

      Here, the Affidavit of Probable Cause indicates that Bryce described to

Troopers Wilson and Pugh, in detail, how Greenawalt had repeatedly asked

Bryce to kill two people for Greenawalt, and how Greenawalt had admitted to

assaulting Keys with a baseball bat at Keys’s home. See Wiretap Application,

9/17/10, at Exhibit A (admitted into evidence at 10/3/11 pre-trial hearing as

Commonwealth Exhibit 1). Bryce told the troopers that Greenawalt described

how Bryce should conduct the murders, including detailed descriptions of the

homes of the two targets. Id. The Affidavit further states that Trooper Wilson

corroborated the details provided by Bryce, including the location and

description of the homes of Greenawalt’s targets, which were accurate “even

though [Bryce] has no familiarity with the [city where the homes were

located].” Id. Finally, Trooper Wilson stated in the Affidavit that he believed

further evidence of the solicitation to commit murder would be gathered

through use of a recording device. Id.



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       Our review of the Wiretap Application reveals that it contains facts

sufficient to establish probable cause to support the issuance of the Wiretap

Order. See 18 Pa.C.S.A. § 5710(a); Birdseye, supra. Therefore, because

Greenawalt’s underlying claim lacks merit, his ineffectiveness claim fails.5, 6

See Tharp, supra.

       In his second claim, Greenawalt alleges that Attorney Rentschler was

ineffective in failing to seek a pretrial mental health examination, and in failing

to present the result of said examination as evidence at trial. Id. at 25-30.

Greenawalt points to the testimony of clinical and forensic psychologist Frank

M. Dattilio, Ph.D. (“Dr. Dattilio”), from Greenawalt’s PCRA hearing, that


____________________________________________


5 To the extent that Greenawalt claims that his counsel was ineffective for
failing to file a motion for suppression under Section 5721.1(a)(3) and on
constitutional grounds, Greenawalt fails to explain how this Court’s Wiretap
Order granting placement of the recording device was materially insufficient,
and how Greenawalt’s constitutional rights were violated, with pertinent
citations to case law and relevant argument. See Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that “where an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion capable
of review, that claim is waived.”); see also Pa.R.A.P. 2119. Accordingly,
these claims are waived.

6 We acknowledge Greenawalt’s citation to Commonwealth v. Hashem, 584
A.2d 1378 (Pa. 1991) (holding that a violation of any provision of the Wiretap
Act is grounds for suppression of evidence), and his claim that the Wiretap
Application was defective under Section 5710 of the Wiretap Act. However,
“the Hashem case interpreted the Wiretap Act before it was amended to
include the exclusive remedy provision,” Commonwealth v. Steward, 918
A.2d 758, 760 n.6 (Pa. Super. 2007) (citing Commonwealth v. Donahue,
630 A.2d 1238, 1248 n.11 (Pa. Super. 1993)), and a violation of Section 5710
is not an included ground for suppression. See 18 Pa.C.S.A. § 5721.1(a);
Steward, supra. Accordingly, this claim fails.

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Greenawalt suffers from major depressive disorder and generalized anxiety

disorder.   Id. at 26.    According to Greenawalt, Dr. Dattilio’s testimony

regarding Greenawalt’s mental disorders may have convinced the jury that he

lacked the necessary intent to be convicted of criminal attempt and criminal

solicitation. Id. At 27-29. Greenawalt argues that Attorney Rentschler lacked

any reasonable basis for not subjecting him to a mental health examination

prior to trial, and that had an expert conducted a pretrial examination and

testified at his trial, the jury may have found him not guilty. Id. at 29-30.

      Here, Greenawalt conflates two claims: (1) Attorney Rentschler should

have noticed, before trial, that Greenawalt suffered from mental illness and

submitted Greenawalt to a mental health examination; and (2) Attorney

Rentschler should have had an expert witness testify at Greenawalt’s trial.

Greenawalt fails to explain, on both grounds, how his particular diagnoses of

generalized anxiety disorder and major depressive disorder are relevant to his

ability to form intent. See Johnson, 985 A.2d at 924; see also Pa.R.A.P.

2119. Accordingly, this claim is waived.

      In his third claim, Greenawalt alleges that Attorney Rentschler was

ineffective in failing to investigate, and present at trial, character evidence of

his reputation for peacefulness and non-violence. See Brief for Appellant at

30-35. Greenawalt argues that had his trial counsel “succeeded in presenting

relevant character testimony, there is a reasonable probability that the

outcome of the trial would have been different.” Id. at 35.


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            Counsel has a general duty to undertake reasonable
      investigations or make reasonable decisions that render particular
      investigations unnecessary. Commonwealth v. Basemore, …
      744 A.2d 717, 735 ([Pa.] 2000) (citing [Strickland v.
      Washington], 466 U.S. [668,] 691 … [(1984)]). … The duty to
      investigate, of course, may include a duty to interview certain
      potential witnesses; and a prejudicial failure to fulfill this duty …
      may lead to a finding of ineffective assistance.

Commonwealth v. Johnson, 966 A.2d 523, 535-36 (Pa. 2009).

            When raising a failure to call a potential witness claim, the
      PCRA petitioner satisfies the performance and prejudice
      requirements of the Strickland test by establishing that:

              (1) the witness existed; (2) the witness was available
              to testify for the defense; (3) counsel knew of, or
              should have known of, the existence of the witness;
              (4) the witness was willing to testify for the defense;
              and (5) the absence of the testimony of the witness
              was so prejudicial as to have denied the defendant a
              fair trial.

Id. at 536.

      Here, Greenawalt fails to establish that a witness was available to testify

at his trial. See Johnson, 966 A.2d at 536. Accordingly, Greenawalt has

failed to satisfy the performance prong of the Strickland test, and his third

ineffectiveness claim fails. See Charleston, supra.

      In his fourth claim, Greenawalt argues that Attorney Rentschler was

ineffective in failing to request severance of the charges relating to his assault

of Keys from the charges relating to his solicitation to commit homicide. See

Brief for Appellant at 36-39.     However, our review discloses that Attorney

Rentschler filed a Motion to sever the charges relating to the separate

incidents. Indeed, as stated by the trial court,

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      [p]rior to trial, [Attorney Rentschler] filed an [O]mnibus [P]retrial
      [M]otion. The [M]otion … sought to sever the trial on the burglary,
      aggravated assault, and attempt to commit criminal homicide
      charges arising out of the incident in 2006 … from trial on the
      three counts of solicitation to commit criminal homicide arising out
      of the prison events in 2010 … citing the prejudicial effect of the
      former charges, involving actual violence, upon the defense of the
      latter charges, which did not.

See Trial Court Opinion, 2/19/19, at 3 (footnotes omitted).         Accordingly,

because Greenawalt’s underlying claim lacks arguable merit, his fourth

ineffectiveness claim fails.

      Based on the foregoing, we affirm the PCRA court’s Order.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/21/2020




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