J-S39017-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                     v.

BRIAN ROLES

                          Appellant               No. 1338 WDA 2016


                Appeal from the PCRA Order August 3, 2016
             In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0001464-2012


BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 26, 2017

      Brian Roles appeals from the August 3, 2016 order denying him PCRA

relief. We affirm.

      Appellant was found guilty by a jury of homicide by vehicle while

driving under the influence (“DUI”) of alcohol or controlled substances,

homicide by vehicle, aggravated assault by vehicle while DUI, involuntary

manslaughter, two counts of recklessly endangering another person, DUI—

second offense general impairment, DUI—second offense highest rate, and

DUI—second offense drug and alcohol combination. These convictions arose

from a single-vehicle accident that occurred at approximately 10:45 p.m. on

April 8, 2012. Appellant was driving a truck that veered off the road in the

600 block of William Penn Avenue, East Taylor Township. The truck traveled


* Retired Senior Judge assigned to the Superior Court.
J-S39017-17



up an embankment, crashed into a pole, and came to rest on the driver’s

side.   Appellant’s son, Brian Jr., sitting in the front passenger’s seat, was

ejected from the truck during the incident, and was pronounced dead at the

scene. Appellant’s nephew, K.R., was in the rear passenger seat.

        Police Officer Shaun Gregory, who worked both for the East Taylor

Township Police Department and the Jackson Township Police Department,

responded to the police call about the accident.        After Officer Gregory

arrived on the scene at approximately 11:00 p.m., he spoke with Appellant.

Appellant “said he was driving northbound on William Penn Avenue,” when

another vehicle traveling southbound “came in his lane of travel, causing

him to swerve off the side of the road, up the embankment and strike the

telephone pole.”    N.T. Trial, 8/27/13, at 14.   Appellant had bloodshot and

glassy eyes and the odor of alcohol was emanating from him; he was also

visibly upset about the death of his son.

        Officer Gregory described the scene as very chaotic since members of

the Roles family were present and were reacting to the death of Brian Jr. As

Officer Gregory suspected Appellant was DUI, he placed him in a police car,

and East Taylor Township Police officer Joseph Marsh transported him to

Conemaugh Hospital, which was a five-minute drive, for a blood test.

        While K.R. was receiving treatment in an ambulance, Officer Gregory

asked him what had occurred. K.R. reported that an oncoming vehicle had

forced them from the road and that Brian was driving.       K.R. did not state

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whether Appellant, who was known as big Brian, or Brian Jr., who was called

little Brian, was the driver.

      Dr. Matthew Perry treated Appellant in the emergency room and

reported that Appellant had minor abrasions to his lower extremities.

Appellant was cooperative but “smelled of alcohol.” N.T. Trial, 8/28/13, at

122. Dr. Perry testified that he asked Appellant a standard question, which

was “his position in the car, and [Appellant] told me he was the driver.” Id.

at 123.   Blood alcohol testing revealed that Appellant had a blood alcohol

content of .17%. In addition, Appellant’s blood tested positively for the

presence of Oxycontin and Xanax.

      Dr. Eric Roslonski, a pain management physician, also testified on

behalf of the Commonwealth. Appellant was one of his patients when the

accident occurred.    At an April 27, 2012 appointment with Dr. Roslonski,

Appellant discussed follow-up on a prior pain management plan.           Appellant

told Dr. Roslonski about the April 8, 2012 traffic accident and stated that “he

was driving his truck with his 16 year old son and teenage nephew and he

was run off the road[.]” N.T. Trial, 8/29/13, at 211.

      The     Commonwealth       also   presented    the   testimony     of   Greg

Sullenberger,    an   accident   reconstructionist   and   expert   in   occupant

kinematics.     Mr. Sullenberger testified that the victim's injuries were

consistent with having been expelled from the passenger side of the vehicle.




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     Appellant testified at trial on his own behalf.   He denied driving the

truck, stating that he had a seizure minutes before the truck crashed and

awoke to find his son driving and an oncoming car headed in their direction.

On August 29, 2013, K.R. testified on behalf of Appellant as follows.     He

stated that Appellant was driving, they stopped at a local shop for

sandwiches and beer, and Appellant fell over when they were walking back

to the truck. Brian Jr. told K.R. that Appellant often had seizures so he and

Brian Jr. placed Appellant into the truck. At that point, Brian Jr. took over

driving responsibilities and was driving when a car entered their lane of

travel and forced them from the road.       In his defense, Appellant also

presented expert testimony from Thomas Laino, who opined that Appellant’s

son had been driving.

     The next day, August 30, 2013, K.R. voluntarily came forward to the

district attorney, Eric Hochfeld, Esquire, and said that the testimony he had

given at trial on August 29, 2013, was false and that he wanted to recant it.

K.R. agreed, in exchange for not being charged with perjury, to return to the

stand and testify on behalf of the Commonwealth as a rebuttal witness.

     Before K.R. testified, the jury was told that “the defendant is entitled

to an instruction to you that, if K.R. testifies today in a fashion that’s

contrary to what he testified to yesterday, the district attorney may well be

able to charge him with perjury.” N.T. Trial, 8/30/13 at 158. The trial court

also informed the jury that the district attorney had offered “not to

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prosecute [K.R.] if his testimony is in divergence with what he testified to

yesterday.” Id.

      K.R. explained to the jury that, after his August 29, 2013 testimony,

he could not eat or sleep as he “felt guilty . . . [b]ecause my cousin is not

getting the justice he deserves.” Id. at 159-60.    The morning of August 30,

2013, K.R. went to school and spoke to school personnel about the situation,

and they contacted Cambria County Children and Youth Services (“CYS”),

which sent a representative to help K.R.       After consulting with the CYS

employee and speaking with his own lawyer, K.R. decided to change his

testimony from the previous day.

      On August 30, 2013, K.R. testified as follows. Appellant, Brian Jr., and

he had stopped at a local shop and ordered sandwiches, but, afterward,

Appellant had not fallen to the ground. Rather, they had all merely entered

the truck together and departed. Appellant was driving, Brian Jr. was in the

front passenger seat, and K.R. occupied the rear passenger seat. K.R. also

denied that an oncoming car had caused the accident. Instead, “big Brian,

he either fell asleep or nodded away or something. And he started to drift to

the right, and Brian Jr., little Brian, grabbed the wheel, and the truck just

wrecked.   It just flipped.”   Id. at 164.   K.R. repeated that Appellant was

driving, Appellant started to nod, and the truck began to veer to the right.

K.R. insisted that there was no oncoming car in their lane of travel.




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     K.R. also testified that, immediately after Appellant was charged

herein, Appellant began to have frequent conversations with K.R. about his

testimony and about what to say at trial. Appellant directed K.R. to testify

that Brian Jr. was driving and that an oncoming car forced them from the

roadway.   Id. at 167-168.      K.R. was then questioned about a written

statement that he had given to police:

     Q. There was a written statement that was admitted as a
        defense exhibit, and you recall giving that statement to the
        police.

     A. Yes.

     Q. And your father was present at the time.

     A. Yes.

     Q. And you stated yesterday that was -- that was the truth, that
        that’s what had happened, what was in that statement?

     A. Yes.

     Q. Would you agree then that statement isn’t correct based on
        what you’re saying today?

     A. Yes.

     Q. And was that statement the product of your uncle telling you
        what to say?

     A. Yes.

Id. at 169.    K.R. was not cross-examined; Appellant’s two trial lawyers

simply established that they were not involved, prior to trial, in crafting

K.R.’s August 29th testimony.     After he gave his trial testimony, K.R.



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reported to the trial judge that he was not comfortable returning home,

declined the opportunity to be remanded to the custody of CYS, and was

allowed to stay at his girlfriend’s home.

      Appellant was convicted of the above-delineated charges, and, on

September 25, 2015, sentenced to eight and one-half to seventeen years

incarceration.   The court, which had the benefit of a pre-sentence report,

indicated that Appellant had juvenile adjudications as well as thirty prior

adult convictions, and some parole violations.      On appeal, we affirmed.

Commonwealth v. Roles, 116 A.3d 122 (Pa.Super. 2015), appeal denied,

128 A.3d 220 (Pa. 2015).

      Appellant filed a timely pro se PCRA petition, counsel was appointed,

and counsel filed two amended PCRA petitions.         PCRA relief was denied

following a hearing. In this appeal, Appellant raises these averments:

      1. Was trial counsel ineffective in failing to deliver a closing
         statement to the jury, despite Appellant's efforts to have
         them do so?

      2. Was trial counsel ineffective in failing to cross-examine the
         only eyewitness to the alleged crime offered by the
         Commonwealth, despite his obvious inconsistent testimony at
         trial?

      3. Was trial counsel ineffective in opting to proceed to trial when
         it knew that potentially exculpatory evidence in the
         Commonwealth's possession had not been analyzed as
         ordered by the Court?

      4. Was trial counsel ineffective in failing to impeach one of the
         investigating officers during his testimony by using his prior
         statements?

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         5. Was trial counsel ineffective in failing to pursue text messages
            sent by the victim on the night of the incident in question that
            may have been exculpatory in nature towards the Appellant?

         6. Was trial counsel ineffective when he incorrectly stated at
            sentencing that the Appellant's convictions carried a 5-year
            mandatory sentence when they, in fact, only carried a 3-year
            mandatory sentence?

         7. Was trial counsel ineffective in failing to object to the lack of
            merger, for sentencing purposes, of Appellant's convictions
            for Homicide by Vehicle and Homicide by Vehicle by DUI?

Appellant’s brief at 4.

         Initially, we note that appellate review of a PCRA order “is limited to a

determination of whether the record supports the PCRA court's factual

findings and whether its legal conclusions are free from error.               A PCRA

court's credibility findings are to be accorded great deference, and where

supported by the record, such determinations are binding on a reviewing

court.       We   review   the   PCRA    court's   legal   conclusions   de    novo.”

Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016) (citations

omitted).

         Appellant’s complaints relate to whether his trial counsel, Nicholas

Banda, Esquire, and Ryan D. Gleason, Esquire, were ineffective. To succeed

on an ineffective assistance of counsel claim, a defendant must “rebut the

presumption that counsel rendered effective assistance and prove, by a

preponderance of the evidence, that (1) the claim has arguable merit, (2)

counsel's action or inaction was not based upon a reasonable trial strategy,

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and (3) petitioner suffered prejudice because of counsel's act or omission.”

Id. at 454.    With respect to the second prong, we “will conclude that

counsel's chosen strategy lacked a reasonable basis only if the petitioner

proves that the alternative strategy not selected offered a potential for

success   substantially   greater   than   the   course   actually   pursued.”

Commonwealth v. Busanet, 54 A.3d 35, 46 (Pa. 2012).            To succeed in

establishing the “prejudice prong, the petitioner must demonstrate that

there is a reasonable probability that the outcome of the proceedings would

have been different but for counsel's ineffectiveness.” Id.

      Appellant’s first averment is that Mr. Banda, who was scheduled to

conduct summation, was ineffective for failing to present closing argument

after K.R.’s stunning admission that Appellant had suborned K.R.’s perjury

and committed perjury himself. This rebuttal testimony was presented just

before counsel was to offer closing remarks to the jury. After K.R. presented

this rebuttal testimony, Mr. Banda simply stated that he would not be giving

closing remarks due to the circumstances that had just occurred.

      On appeal, Appellant relies upon Commonwealth v. Sparks, 539

A.2d 887 (Pa.Super. 1988), wherein we opined that trial counsel was

ineffective for not giving closing remarks to the jury. That case involved a

robbery and rape, where, at his jury trial, the defendant offered an alibi

defense. The record indicated that both the defense and the Commonwealth




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evidence, including the victim’s identification testimony, was “ambiguous

and conflicting.” Id. at 888.

      After the defense rested, the defendant’s lawyer stated that he would

not offer closing remarks since the testimony was “already riddled with

confusion, reasonable doubt and contradictions.” Id. at 889. The prosecutor

proceeded to present a “summation spanning thirty-nine pages of trial

transcript, in which, inter alia, he offered explanations for the inconsistencies

in the Commonwealth's evidence and characterized the [complex] medical

evidence as ‘unrefuted.’” Id. At the hearing on the defendant’s petition for

post-conviction relief, trial counsel explained that he declined summation

since he believed that he “had the case won,” and “that his disdain for the

Commonwealth's evidence would have an impact on the jury by suggesting,

at least by implication, that he ‘did not want to dignify the Commonwealth's

case with a response.’” Id.

      The Sparks Court noted that “the constitutional right to representation

by counsel in a criminal proceeding includes the right to make a closing

argument,” but acknowledged that “the right may be waived as a matter of

trial strategy.” Id. at 889. It observed that the cases where trial counsel

was determined to have acted reasonably in foregoing summation had

involved “non-jury trials of short duration in which the evidence had been

straightforward and uncomplicated.”      Id.   The Sparks Court rejected trial

counsel’s proffered strategy as reasonable because the trial was before a

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jury, the evidence was inconsistent on both sides, there were complex

medical issues involved, and the         Commonwealth had explained the

inconsistencies in its case and characterized the medical evidence as solid

while the defendant’s trial counsel abandoned the opportunity to rebut these

positions.

      This Court in Sparks relied upon the United States Supreme Court’s

view on the importance of closing argument as elucidated in Herring v.

New York, 422 U.S. 853 (1975), wherein the Court ruled unconstitutional a

state statute that allowed judges presiding over nonjury trials to deny

counsel the opportunity to make closing remarks. The Herring Court

observed:

         It can hardly be questioned that closing argument serves to
      sharpen and clarify the issues for resolution by the trier of fact in
      a criminal case. For it is only after all the evidence is in that
      counsel for the parties are in a position to present their
      respective versions of the case as a whole. Only then can they
      argue the inferences to be drawn from all the testimony, and
      point out the weaknesses of their adversaries' positions. And for
      the defense, closing argument is the last clear chance to
      persuade the trier of fact that there may be reasonable doubt of
      the defendant's guilt.

Id. at 862.

      In his argument on appeal, Appellant analogizes the evidence

presented at his trial to that at issue in the Sparks case, and he relies upon

Herring’s opinion as to the importance of summation. Appellant, however,

overlooks the spectacular ending of his own jury trial.      K.R. was the only



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eyewitness to the events in question.         After the close of the defendant’s

case, K.R. came forward, despite trepidation about the consequences that he

would suffer, and outlined to the jury that Appellant perjured himself and

that Appellant had actively solicited and suborned perjury from K.R. This

testimony was presented immediately before trial counsel had to make his

summation to the jury.

       As Mr. Banda explained at the PCRA hearing, he did not want to call

his own star witness a liar.      The PCRA court herein concluded that this

explanation was reasonable, that Sparks was distinguishable, and that

Appellant was not prejudiced by the absence of a summation.            Trial Court

Opinion, 8/3/16 at 7 (based on its instructions to the jury, “we cannot find

that the lack of a closing argument prejudiced the Defendant”). The record

does not support a finding that the PCRA court abused its discretion in this

respect.

       We concur with the PCRA court that, based upon the instructions that

were disseminated to the jury, Appellant did not meet his burden of proving

the prejudice aspect of the ineffective-assistance-of-counsel test, i.e., that

there is a reasonable probability that the outcome of the trial proceedings

would have been different had Mr. Banda offered closing remarks. We first

observe that Appellant makes no suggestion as to what summation could

have   been   offered,   merely   suggesting     that   there   were   unspecified

weaknesses in the Commonwealth’s case that Mr. Banda could have pointed

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out to the jury.   Appellant’s brief at 14.   However, when Mr. Banda was

asked to close, his star witness had just recanted, said he was pressured by

Appellant to perjure himself, and accused Appellant of perjury. At most, Mr.

Banda could have said that K.R. was perjuring himself on August 30, 2013,

rather than on August 29, 2013, and that Appellant’s August 29, 2013

testimony was truthful, even though, prior to being charged, Appellant told a

police officer and two doctors that he was driving when the accident

occurred.

      Second, we conclude that the trial court’s instructions dispelled any

prejudice flowing from Mr. Banda’s failure to offer what could have been, at

best, a meager closing. The court told that jury that, during deliberations,

“you may find inconsistencies in the evidence that was presented.          Even

actual contradictions of witnesses don’t necessarily mean that

anyone was testifying in a willfully false manner.” N.T. Trial, 8/30/13,

at 188 (emphasis added). It noted that poor memory was not uncommon

and could cause a witness to remember events incorrectly. The trial court

continued, “[I]t’s also true that two people witnessing the same incident

may see or hear it differently.” Id. at 188-89.

      After informing the jury that it was tasked with attempting to reconcile

conflicting statements, the court said that, if the jury decided that “there is a

real, a genuine and an irreconcilable conflict of testimony, it’s your function

to determine which, if any, of the conflicting and contradictory statements

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you will believe.” Id. at 189. After outlining the factors that a jury should

consider in assessing credibility, the court observed that “the defendant took

the stand as a witness in this case.”         Id. at 190.     It continued: “In

considering   the   defendant’s testimony, you’re     to    follow   the   general

instructions I just gave you as to judging the credibility of the witness. But I

have to caution you, you should not disbelieve the defendant’s

testimony merely because he’s the defendant.”                   Id. at 190-91

(emphasis added). The court then admonished the jury that, if it concluded

that “any witness testified falsely about a material point, . . . you may for

that reason alone choose to disbelieve the rest of his testimony, but you’re

not required to do so,” and it indicated that other parts of that witness’s

testimony could be credited. Id. at 191 (emphasis added).

      The trial court specifically examined the testimony offered by K.R. It

noted that K.R.’s testimony given that day differed from the testimony “he

gave yesterday under oath,” thereby subjecting him to potential prosecution

for perjury. Id. at 192. It outlined the elements of perjury and noted that

the district attorney had agreed not to prosecute K.R. for that crime. The

trial court then stated to the jury: “You should, however examine

closely and carefully and receive with caution the testimony of any

witness who you find either presently or previously committed

perjury.”     Id. at 192 (emphasis added).      The court then proceeded to




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instruct the jury on how to assess the credibility of the expert witnesses

offered at trial and to resolve the conflicts in their testimony.

       The trial court indicated that a lawyer’s argument was not to be

considered as evidence, gave an extensive definition of reasonable doubt

and the burden of proof, and outlined the elements of the crimes. It next

observed that it was “entirely possible for a single witness to give truthful

and accurate testimony and that his or her testimony may be believed even

though a greater number of witnesses of apparently equal reliability

contradicted him or her.” Id. at 212.

       These statements were disseminated by the trial court itself rather

than constituting argument made by a lawyer who was representing

Appellant. In light of the trial court’s pointed instructions, we conclude that

Appellant failed to establish a reasonable probability that his counsel could

have offered a summation that would have resulted in an acquittal,

especially since Appellant neglects to outline any specific argument that

would have refuted the overwhelming evidence of his guilt.

       Appellant’s second position is that his trial counsel were ineffective for

not cross-examining K.R. with his statements that were inconsistent with his

August 30, 2013 rebuttal testimony.1 In this respect, we note the following.

____________________________________________


1
   The Commonwealth maintains that this position is waived as it was not
included in his pro se or counseled PCRA petitions. Commonwealth’s brief at
(Footnote Continued Next Page)


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The jury was fully aware that K.R. had testified on August 29, 2013, in direct

contradiction to his testimony on August 30, 2013.           Likewise, the record

establishes that the jury knew about K.R.’s two statements to police,

including the written one, where he specifically identified Brian Jr. as the

driver.   The Commonwealth actually examined K.R.’s prior inconsistent

written statement during its direct examination of that rebuttal witness.

Appellant could not have been prejudiced by counsel’s failure to adduce

evidence patently obvious due to the state of events or already revealed by

the Commonwealth.

      Appellant’s third contention is that trial counsel was ineffective for not

obtaining DNA testing of what could have been a blood stain found on the

driver’s side of the truck after the crash.         Events pertinent to this issue

occurred on August 22, 2013, immediately after denial of Appellant’s motion

to dismiss his case under Pa.R.Crim.P. 600. A question arose as to whether

Appellant desired further testing of a stain found on the driver’s side of the
                       _______________________
(Footnote Continued)

12. See Pa.R.Crim.P. 902(B) (“[f]ailure to state such a ground [for relief] in
the [PCRA] petition shall preclude the defendant from raising that ground in
any proceeding for post-conviction collateral relief”). However, trial counsel
was questioned, without Commonwealth objection, as to why he did not
cross-examine K.R., N.T. PCRA hearing, 6/27/16, at 16-20, and the PCRA
court addressed this position. Trial Court Opinion, 8/3/16, at 9. Hence, we
prefer to address the allegation on the merits. See Commonwealth. v.
Elliott, 80 A.3d 415, 430 (Pa. 2013) (noting that issue was waived because
it was not contained in appellant’s PCRA petitions, but proceeding to address
position on the merits).




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truck. A previously-scheduled trial was continued in order to have that stain

tested. N.T. Rule 600 Hearing, 8/22/13, at 10. A swab of the stain was sent

to a state laboratory, but the returned report was ambiguous as to whether

the stain was blood. It stated in one section that the “there was no blood on

the swab,” but, in another paragraph, the report said, “there was blood.”

N.T. Rule 600 Hearing, 8/22/13, at 9.

        The trial court ascertained that the Commonwealth was ready to

proceed immediately with trial, and it asked Mr. Banda if the report affected

his desire to go forward. At that point, Mr. Banda said, “I would like to go to

trial even if there is not a final determination of that spot as being blood or

not.”    Id. The court responded: “[L]et’s be forthright here.         Is there

something you think that should be, there should be a further analysis or

not? If there is, what are we going to do? If there isn’t, we’re going to go

forward with the trial.” Id. When counsel refused to either admit or deny

that further testing was needed, the trial court said that, if counsel believed

further testing was not in order, the trial would proceed.     Id. at 11.   The

parties immediately started to select a jury.

        At the PCRA hearing, Mr. Banda explained that he did not obtain

additional testing since he was unsure as to whether it would exonerate

Appellant and since Appellant did not want to delay the trial further. N.T.

PCRA Hearing, 6/27/16, at 15.         The PCRA court herein credited trial

counsel’s explanation for not asking to continue trial to obtain further testing

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of the stain. As the record supports the trial court’s credibility determination

and counsel articulated a reasonable strategy for not getting more testing on

the stain, we reject Appellant’s stance that Mr. Banda was ineffective in this

respect.

      Appellant’s fourth position is that trial counsel was ineffective for not

impeaching Officer Shaun Gregory. We reject this position for the following

reasons outlined by the PCRA court:

             Petitioner argues that at his suppression hearing, Officer
      Shaun Gregory of the East Conemaugh Police Department
      testified that the Petitioner gave him a physical copy of his
      driver's license, while at trial he told the jury that Petitioner
      verbally gave him identifying details such as his name and Social
      Security number.      Petitioner argues that this inconsistency
      should have been used to impeach the officer. The following
      exchange between Assistant District Attorney Eric Hochfield and
      Officer Gregory occurred at the suppression hearing:

            Q.   Do you recall if he ever provided you with any
                 identification or insurance at that time?

            A: He provided me with identification. I did get an
               operator number from him.

            Q: Would that have been at the onset of the
               conversation you had with him?

            A: That would have been after, yeah, after I clarified
                who was the driver.

      Transcript of Suppression Hearing, 7/29/16, p. 12, II. 18-25.

          Later on cross examination, the officer was questioned by
      Attorney Banda as to whether the Petitioner pulled his license
      from his wallet and officer responded that he could not recall. At
      trial, the officer testified merely that the Petitioner was



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      "identified" and that he gave his name and date of birth.     T.T
      8/27/13, pp. 13-14.

            While we note the slight difference in testimony we are not
      convinced that the inclusion of this minor consistency would
      have had any impact on the outcome of the trial. As previously
      noted, the case hinged on the testimony of [K.R.] For these
      reasons we find that the Petitioner has failed to meet the above-
      standard for post-conviction relief.

Trial Court Opinion, 8/3/16, at 11.

      Appellant’s fifth averment on appeal is that trial counsel was

ineffective for failing to investigate text messages that his son sent to his

girlfriend on the night of the accident.       Appellant claimed at the PCRA

hearing that the text messages contained “helpful evidence.”       N.T. PCRA

Hearing, 6/27/16, at 27. Both Mr. Banda and Mr. Gleason testified that they

had no recollection of discussing text messages with Appellant. Id. at 7, 15.

We conclude that this claim is completely unsupported.      Appellant did not

present any testimony from Brian Jr.’s girlfriend about text messages sent

by Brian Jr., he did not obtain Brian Jr.’s cellular telephone, which had been

secured by police, and he did not obtain records from the cell phone service

provider verifying the existence of text messages. It is established that a

PCRA petitioner, to obtain relief, must both plead and prove that counsel

was ineffective. Williams, supra; 42 Pa.C.S. § 9543(a). We concur with

the PCRA court that Appellant cannot prevail on this position due to the

absence of any proof that these text messages existed.




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      Appellant’s sixth allegation of error pertains to the fact that, at

sentencing, Mr. Gleason incorrectly indicated that the mandatory minimum

sentence for homicide by vehicle while DUI is five years when the mandatory

minimum is actually three years. See 75 Pa.C.S. § 3735 (a) (the sentencing

court shall order a person convicted of homicide by vehicle while DUI “to

serve a minimum term of imprisonment of not less than three years”).

      Herein, Mr. Gleason did misstate that this crime carried a mandatory

minimum of five years, which he admitted at the PCRA hearing. However,

as Appellant acknowledges, the sentencing court did not impose any

mandatory minimum sentences.            Rather, it imposed standard range

sentences pursuant to the sentencing guidelines. N.T. Sentencing, 9/25/13,

at 12 (“And those [sentences] are all standard range sentences, there are no

aggravated range sentences, but they’re the top end of the standard

range.”).

      Appellant posits that, absent the misstated mandatory minimum, the

court might have sentenced him in the mitigated range. Appellant’s brief at

19-20.      The PCRA court, which also sentenced Appellant, discounted this

position, stating that “nothing that Attorney Gleason said at sentencing

influenced the length of the Court’s term of incarceration.”     Trial Court

Opinion, 8/3/16, at 10. Hence, Appellant did not establish that the outcome

of the sentencing hearing was impacted by Mr. Gleason’s error and this

claim of ineffective assistance of counsel fails.

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      Appellant’s final position is that trial counsel was ineffective for

neglecting to object to the trial court’s refusal to merge, for sentencing

purposes, his convictions for homicide by vehicle and homicide by vehicle

while DUI.    Appellant concedes that, in Commonwealth v. Collins, 764

A.2d 1056 (Pa. 2001), our Supreme Court held that the offenses of homicide

by vehicle and homicide by vehicle while DUI do not merge for sentencing

purposes. He presents the issue to this Court “to potentially preserve the

issue for appeal to Pennsylvania Supreme Court for reconsideration[.]”

Appellant’s brief at 20. Hence, we do not consider this claim further.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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