J-S29007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 EDWARD R. DUNPHY                          :
                                           :
                      Appellant            :   No. 3483 EDA 2016

          Appeal from the PCRA Order Entered September 26, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010374-2008


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

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 01, 2018

      Edward R. Dunphy challenges the order entered in the Philadelphia

County Court of Common Pleas, dismissing his petition filed pursuant to the

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

of this Court remanded for an evidentiary hearing, based on counsel’s

purported ineffectiveness. See Commonwealth v. Dunphy, No. 35 EDA

2013 (Pa. Super., filed March 5, 2015) (unpublished memorandum). Following

that hearing, we affirm.

      The panel on direct appeal set forth the relevant facts and procedural

history as follows:

      On June 7, 2008, at approximately midnight, Appellant was
      driving his vehicle while intoxicated, striking and killing a 20 year
      old pedestrian, Hannah Cintron, as she was crossing the
      northbound lanes of Delaware Avenue, a six-lane divided highway
      with a speed limit of 35 miles per hour. Cintron suffered multiple,
      severe blunt impact injuries to her head, torso, and legs,

____________________________________
* Former Justice specially assigned to the Superior Court.
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     sustaining a fractured hip, a fractured rib, a broken back and a
     ruptured aorta. Cintron was pronounced dead at the scene. As a
     result, Appellant was arrested and charged with murder in the
     third degree, 18 Pa.C.S.A. § 2502(c); involuntary manslaughter,
     18 Pa.C.S.A. § 2504(a); homicide by vehicle, 75 Pa.C.S.A. § 3732;
     homicide by vehicle while driving under the influence, 75
     Pa.C.S.A. § 3735(a); accident involving death or personal injury,
     75 Pa.C.S.A. § 3742; and driving under the influence of alcohol,
     75 Pa.C.S.A. § 3802(a)(1).

     On July 14, 2009, Appellant proceeded to a trial before a jury. At
     trial, Dennis Wright, a valet employed at Roxxy nightclub in the
     900 block of North Delaware Avenue, testified that, shortly after
     midnight on June 7, 2008, he heard the sound of a truck suddenly
     accelerating. He looked towards the sound, and observed
     Appellant driving north on Delaware Avenue at approximately 60
     miles per hour. He also observed the victim, Hannah Cintron,
     walking across the northbound lanes of Delaware Avenue, in the
     lane closest to the median strip. Wright witnessed Appellant’s
     truck slam into Cintron, causing her to fly into the air, land on the
     hood of his truck, fly off the truck, and then land on the street.
     Wright testified that, after the impact, Appellant’s truck braked
     briefly, swerved into the middle lane, and then sped away at an
     even greater speed, without ever coming to a complete stop.

     Joseph Stickel, who, at the time of the accident, was standing on
     the median strip separating Delaware Avenue, testified that he
     witnessed Appellant’s truck come around the corner, hit Cintron,
     and then keep going. Stickel stated that he heard “someone
     slamming on their brakes, and [he] looked up and [Cintron] got
     hit.” Based on Appellant’s truck hitting Cintron, Stickel observed
     Cintron's body fly down the road and over the truck, and then land
     in the middle of the road.

     After Appellant’s truck hit Cintron, Robert DeGuzman, who was
     working a security detail at Roxxy nightclub, entered his vehicle
     in an attempt to locate the person who hit Cintron. When he
     reached Interstate 95, he came upon Appellant’s truck, which
     matched the description of the truck that hit Cintron, and he
     began to follow it. DeGuzman testified that Appellant was
     swerving through traffic. When Appellant stopped at a house at
     the corner of Madison and Tilton Streets, DeGuzman ordered
     Appellant out of the truck and handcuffed him. DeGuzman stated
     that Appellant smelled strongly of alcohol, and Appellant said, “I'm

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     sorry, I didn't mean to do it. I'm drunk.” DeGuzman observed that
     Appellant’s truck was damaged on the driver’s side, including the
     windshield, which was “squashed all the way down.”

     Officer Michael DeRose arrived at Madison and Tilton Streets after
     DeGuzman had stopped Appellant. DeRose testified that, when he
     arrested Appellant, he noticed a very strong odor of alcohol on
     Appellant. Further, he stated that Appellant “kept saying over and
     over and over again that he was sorry.”

     After Appellant was arrested, Officer Robert Reppert interviewed
     him. Reppert testified that Appellant consented to a blood test,
     which was performed at 1:40 a.m. He further testified that he
     questioned Appellant about the incident and that, Appellant stated
     that he had been at McFadden’s Bar and had consumed “several
     shots and several beers” over the course of two or three hours.
     Appellant further stated to Reppert that he then got into his truck
     and headed to his cousin's house because he “didn't think [he]
     could make it home.” Appellant told Reppert that, as he was
     driving on Delaware Avenue, he saw pedestrians crossing the
     street approximately 50 to 100 yards in front of him, but he
     accelerated to “make the next light.” When asked if he struck any
     people with his truck, Appellant stated, “Not to my knowledge, no,
     sir.” Appellant admitted to Reppert that his truck had not been
     damaged earlier in the evening.

     Richard D. Cohn, Ph.D., testified as an expert for the
     Commonwealth in the areas of pharmacology and forensic
     toxicology. Cohn testified that Appellant's blood alcohol content
     was .183% at the time his blood was drawn. Cohn concluded that
     Appellant would have consumed a minimum of ten or eleven
     drinks for his blood alcohol to be .183% at the time his blood was
     drawn. Cohn further testified that, in his opinion, Appellant was
     incapable of safely operating a vehicle.

     Officer William Lackman of the Philadelphia Police Department’s
     Accident Investigation Division testified as an expert on accident
     reconstruction on behalf of the Commonwealth. Lackman testified
     that Citron's body came to rest about 178 feet north of where she
     was originally hit by Appellant's truck, and that she was either
     airborne or on the hood of the truck for 135 feet. Lackman stated
     that the Airbag Control Module of Appellant's truck confirmed that
     he was traveling between 59 and 60 miles an hour when he hit
     Cintron, and that Cintron was traveling approximately 50 miles

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      per hour when she flew off the hood of the truck. Lackman further
      stated that there were skid marks at the scene, which indicated
      that Appellant applied his brakes after striking Cintron, but never
      came to a complete stop. Lackman concluded that Appellant's
      truck striking Cintron caused her death.

      On July 15, 2009, after the parties presented their evidence and
      arguments to the jury, Appellant pleaded guilty to driving under
      the influence of alcohol [“DUI”] and accident involving death or
      personal injury. The jury subsequently found Appellant guilty of
      third degree murder. On September 16, 2009, the trial court
      sentenced Appellant to seven to fourteen years' imprisonment for
      third degree murder; a consecutive term of one to two years'
      imprisonment for accident involving death or personal injury; and
      [six] months' probation for driving under the influence of alcohol,
      to be served concurrently with his other sentences.

Commonwealth v. Dunphy, 20 A.3d 1215, 1216-1218 (Pa. Super. 2011)

(internal citations and footnote omitted).

      This Court affirmed Appellant’s judgment of sentence. Appellant did not

appeal that determination. Instead, he filed a timely PCRA petition challenging

trial counsel’s effectiveness. Following argument, the PCRA court issued an

order dismissing the petition. Appellant appealed. And “out of an abundance

of caution” “[g]iven the unique set of facts and trial counsel’s strategy … and

the absence of any PCRA court opinion,” the panel remanded for another

evidentiary hearing so that trial counsel could testify. Dunphy, No. 35 EDA

2013, at 11.

      At that hearing, Appellant’s trial counsel testified that he and Appellant

discussed strategy many times before the trial. See N.T., Hearing, 7/8/16, at

115. According to counsel, both agreed a reasonable jury would feel certain

Appellant’s intoxication was highly relevant to causation of the accident. See



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id., at 122. They settled on a strategy where counsel would admit Appellant

was guilty of homicide by DUI, but attempt to use his impairment to negate

the malice element of third-degree murder. See id., at 118. Thus, in his

opening statement, counsel stated Appellant was guilty of homicide by vehicle

due to intoxication, but not of third-degree murder. See id., at 97.

      However, counsel testified that midway through trial, Appellant insisted

on changing the defense strategy. See id., at 104. Counsel attempted to

persuade Appellant this would damage the credibility of the defense, but

Appellant was adamant. See id., at 124. Despite admitting Appellant’s

intoxication during his opening statement, counsel asked the court if he could

retract the admission that Appellant was guilty of homicide by DUI. See id.,

at 128. Counsel instead argued that Appellant’s rate of speed, and not his

intoxication, caused the accident. See id., at 139.

      Appellant also testified at the evidentiary hearing. He claimed counsel

never mentioned he would be admitting Appellant’s guilt of homicide by DUI

in his opening statement. See N.T., Hearing, 9/23/16, at 40. Appellant denied

the admission was part of any agreed-upon strategy. See id., at 41. Appellant

conceded the court conducted a plea colloquy after counsel indicated he

wished to retract the statement. See id., at 61. And Appellant willingly pled

guilty to DUI and accident involving death or personal injury. See id., at 58.

Yet, Appellant insisted during the evidentiary hearing he was unaware he could

have challenged counsel’s conduct at the time. See id., at 65.




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      At the close of the hearing, the PCRA court found trial counsel’s

testimony credible. The court concluded his trial strategy was reasonably

based on promoting Appellant’s best interests, and again dismissed

Appellant’s petition.

      On appeal, Appellant challenges trial counsel’s effectiveness. He argues

that counsel executed a mid-trial change in strategy that dashed Appellant’s

chances of success. Appellant asserts the change in strategy was due to

counsel’s lack of preparation, and that we should remand for a new trial in

light of counsel’s obvious ineffectiveness.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of

law, our scope of review is de novo. See id. “We are bound by any credibility

determinations made by the PCRA court where they are supported by the

record.” Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (citation

omitted).

      We presume counsel’s effectiveness, and an appellant bears the burden

of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965

(Pa. Super. 2017). To establish ineffectiveness of counsel, a PCRA petitioner

must plead and prove: his underlying legal claim has arguable merit; counsel’s

actions lacked any reasonable basis; and counsel’s actions prejudiced the

petitioner. See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).

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Failure to satisfy any prong of the ineffectiveness test requires dismissal of

the claim. See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super.

2004).

      “We will conclude that counsel’s chosen strategy lacked a reasonable

basis only if Appellant proves that an alternative not chosen offered a potential

for success substantially greater than the course actually pursued.”

Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (citation and

internal quotations omitted).

      Here, the testimony, as found credible by the PCRA court, demonstrated

Appellant and trial counsel met several times before trial, and agreed

intoxication was the cause of the accident. Counsel then devised a strategy

where he would concede Appellant’s guilt on the lesser charge of homicide by

DUI, in hopes of avoiding the more serious charge of third-degree murder.

Appellant pled guilty to DUI and leaving the scene of the accident, and assured

the court he was satisfied with counsel’s services.

      Appellant’s insistence that counsel modify the agreed-upon strategy

mid-trial, by withdrawing the admission that Appellant was guilty of homicide

by DUI, cannot now form the basis for finding counsel acted unreasonably.

Counsel’s strategy was reasonably designed to effectuate Appellant’s

interests. Thus, Appellant has failed to satisfy the reasonable basis prong of

the ineffectiveness test. Accordingly, we affirm the order dismissing

Appellant’s petition for PCRA relief.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/1/18




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