J-S28002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ERIC EARL HOUSER                         :
                                          :
                   Appellant              :   No. 1913 MDA 2017

              Appeal from the PCRA Order November 7, 2017
   In the Court of Common Pleas of Lebanon County Criminal Division at
                     No(s): CP-38-CR-0002045-2014


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

MEMORANDUM BY OLSON, J.:                            FILED AUGUST 06, 2018

     Appellant, Eric Earl Houser, appeals from the order entered on

November 7, 2017, denying his petition for relief under the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.

     The trial court ably stated the facts of this case:

        [On December 2, 2014, Appellant] went hunting with Thomas
        Sakel (hereinafter “Sakel”) and Pamela Moyer (hereinafter
        “Moyer”). Officer Brian Sheetz, a Wildlife Conservation
        Officer[,] was called to [Appellant’s] location. Once Officer
        Sheetz arrived at [Appellant’s] location, Officer Sheetz
        observed two vehicles and ran the license plates. After
        running the license plates, Officer Sheetz determined that
        one vehicle belonged to Sakel and the other belonged to
        Kenneth Houser, Sr. Officer Sheetz investigated further and
        determined that there was mail in the vehicle [that was
        addressed to Appellant] and [that Appellant] did not possess
        a valid hunting license.

        When [Appellant], Moyer[,] and Sakel returned to their
        vehicles, Officer Sheetz and two additional Wildlife
        Conservation Officers approached and requested to see all
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       three individuals’ hunting licenses. Both Sakel and Moyer
       produced valid hunting licenses. [Appellant] produced a
       hunting license that belong[ed] to Michael G. Moyer. . . .

       Officer Sheetz questioned Moyer at the time. Officer Sheetz
       testified that two rifles were discovered, and when Officer
       Sheetz questioned Moyer regarding both firearms, Moyer
       stated that the guns were hers and initially denied that
       [Appellant] had a gun. After further questioning, Moyer
       admitted that [Appellant] had been carrying a gun with him.

       A trial was held on October 9, 2015. At the trial, the parties
       stipulated that [Appellant] was a person prohibited by law
       from possessing a firearm. . . . During the trial, Sakel
       testified that he would occasionally talk with [Appellant]
       about hunting. Sakel testified that during one conversation
       with [Appellant], [Appellant] mentioned that he was aware of
       a good hunting spot, and the two agreed [to] meet up and
       “scout” the land on November 29, 2014. After the two met
       on November 29, 2014, Sakel, Moyer[,] and [Appellant] met
       at the same location on December 2, 2014.

       Sakel testified that on December 2, 2014, he had seen
       [Appellant] carrying a gun over his right shoulder during their
       time in the woods. Moyer testified that she was [Appellant’s]
       girlfriend at the time. She [testified] that [Appellant] was not
       carrying a gun at any point and that she was in possession of
       the gun during that trip. She further testified that Officer
       Sheetz was badgering her, so she changed her story in order
       to tell him what he wanted to hear.

       At the trial, [Appellant] testified that he signed over the trail
       camera to Officer Sheetz. Officer Sheetz testified that he had
       reviewed hundreds of images provided by the [trail] camera.
       [He testified that the last time the camera took images was
       “the 27th of November. The last image that was on the
       camera for the last date was [Appellant] walking up to it.”
       N.T. Trial, 10/9/15, at 173]. . . .

       Trooper Ty Denk of the Pennsylvania State Police was called
       to testify, and he [testified] that he processed both guns
       involved in the instant matter for [fingerprints]. Trooper
       Denk’s conclusion regarding the [fingerprints] was not that
       [Appellant] had not touched the gun, but that the usable

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         prints that had been found on the gun did not belong to
         [Appellant].

Trial Court Opinion, 8/8/16, at 1-3.

       The jury found Appellant guilty of persons not to possess firearms and

the trial court found Appellant guilty of two summary offenses regarding

unlawful acts concerning licenses.1            On March 30, 2016, the trial court

sentenced Appellant to serve a standard-range sentence of four to ten years

in prison for the persons not to possess firearms conviction. N.T. Sentencing

Hearing, 3/30/16, at 6.

       On August 8, 2016, the trial court denied Appellant’s post-sentence

motion. Appellant did not file a notice of appeal to this Court.

       On February 22, 2017, Appellant filed a timely, pro se PCRA petition.

Appellant’s Pro Se PCRA Petition, 2/22/17, at 1-8. The PCRA court appointed

counsel to represent Appellant and counsel filed an amended petition.

       The PCRA court held a hearing on August 31, 2017, during which time

Appellant and Appellant’s trial counsel, Attorney Michael Morrone (hereinafter

“Attorney Morrone”), testified. The PCRA court denied Appellant’s petition on

November 7, 2017 and Appellant filed a timely notice of appeal. Appellant

raises six claims on appeal:

         1. Whether Appellant was denied his constitutionally
         guaranteed right to effective representation when Appellant
         avers that trial counsel failed to provide him with his
         discovery, witness statements[,] and other requested
         documents prior to trial?
____________________________________________


1 18 Pa.C.S.A. § 6105(a)(1) and 34 Pa.C.S.A. §§ 2711(a)(5) and (10),
respectively.

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        2. Whether Appellant was denied his constitutionally
        guaranteed right to effective representation when Appellant
        avers that trial counsel failed to request a necessary
        continuance after new evidence became available?

        3. Whether Appellant was denied his constitutionally
        guaranteed right to effective representation when Appellant
        avers that trial counsel failed to object to and properly
        cross-examine witness testimony at trial and failed to ask
        witness questions that he had proposed to be asked?

        4. Whether Appellant was denied his constitutionally
        guaranteed right to effective representation when Appellant
        avers that trial counsel failed to include Appellant in the jury
        selection process?

        5. Whether Appellant was denied his constitutionally
        guaranteed right to effective representation when Appellant
        avers that trial counsel failed to object to the Commonwealth
        mentioning Appellant’s prior record in the opening
        statements?

        6. Whether Appellant was denied his constitutionally
        guaranteed right to effective representation when Appellant
        avers that trial counsel failed to file a motion to produce
        discovery from the Game Commission relating to the camera
        and photos?

Appellant’s Brief at 5 (some internal capitalization omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness of counsel which, in the

circumstances of the particular case, so undermined the truth-determining




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process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

     Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”       Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).          To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

        (1) his underlying claim is of arguable merit; (2) the
        particular course of conduct pursued by counsel did not have
        some reasonable basis designed to effectuate his interests;
        and, (3) but for counsel’s ineffectiveness, there is a
        reasonable probability that the outcome of the challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has

explained:

        A claim has arguable merit where the factual averments, if
        accurate, could establish cause for relief.                 See
        Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
        (“if a petitioner raises allegations, which, even if accepted as
        true, do not establish the underlying claim . . . , he or she
        will have failed to establish the arguable merit prong related
        to the claim”). Whether the facts rise to the level of arguable
        merit is a legal determination.

        The test for deciding whether counsel had a reasonable basis
        for his action or inaction is whether no competent counsel
        would have chosen that action or inaction, or, the alternative,
        not chosen, offered a significantly greater potential chance of
        success. Counsel’s decisions will be considered reasonable if
        they effectuated his client's interests. We do not employ a
        hindsight analysis in comparing trial counsel's actions with
        other efforts he may have taken.

        Prejudice is established if there is a reasonable probability
        that, but for counsel’s errors, the result of the proceeding
        would have been different. A reasonable probability is a

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        probability   sufficient   to   undermine   confidence    in   the
        outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

internal quotations and citations omitted). “A failure to satisfy any prong of

the test for ineffectiveness will require rejection of the claim.” Id.

      Further,

        Under the applicable standard of review, we must determine
        whether the ruling of the PCRA court is supported by the
        record and is free of legal error. The PCRA court's credibility
        determinations, when supported by the record, are binding
        on this Court. However, this Court applies a de novo
        standard of review to the PCRA court's legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (internal citations

omitted).

      First, Appellant claims that his trial counsel was ineffective for “fail[ing]

to provide him with his discovery, witness statements[,] and other requested

documents prior to trial.” Appellant’s Brief at 8. Specifically, Appellant argues

that the Commonwealth waited until the day of trial to provide Appellant’s trial

counsel with the witness statement of Mr. Sakel.          Appellant’s Brief at 9.

According to Appellant:

        [trial] counsel should have objected to said statements as
        they were not presented to [] Appellant for review prior to
        trial.   The witness statement of Mr. [Sakel] was only
        presented to Appellant on the day of trial. As the statements
        were presented at trial, Appellant and his counsel only had a
        brief moment to review them. Appellant avers that the
        statements should have been presented prior to trial and
        made part of Appellant’s original discovery packet.

Id. at 10 (some internal capitalization omitted).



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      Notwithstanding Appellant’s averment, during the PCRA hearing,

Attorney Morrone testified that: he did not recall receiving any discovery on

the day of trial; Mr. Sakel’s statements were “produced in the original

discovery;” “[a]s [Appellant’s] attorney, I would have reviewed the discovery

with [Appellant] as soon as I received it;” and, he had “a chance to cross-

examine Mr. Sakel about all of the statements at trial.” N.T. PCRA Hearing,

8/31/17, at 36-37 and 47.

      The PCRA court heard the testimony from Appellant and Attorney

Morrone and arrived at the factual conclusion that Appellant “was provided

with all evidence well before trial.” PCRA Court Opinion, 11/7/17, at 5. The

record supports the PCRA court’s factual conclusion; therefore, Appellant’s

ineffective assistance of counsel claim has no arguable merit and fails. See

Commonwealth v. Bardo, 105 A.3d 678, 685 (Pa. 2014) (“[i]f supported by

the record, the PCRA court's credibility determinations and factual findings are

binding on this Court”).

      Second, Appellant claims that Attorney Morrone was ineffective for

“fail[ing] to request a necessary continuance after new evidence became

available.” Appellant’s Brief at 11. To the extent this claim is based upon Mr.

Sakel’s statements – which, the PCRA court found, were provided to Appellant

“well before trial” – the claim fails. See PCRA Court Opinion, 11/7/17, at 5.

However, Appellant also claims that the Commonwealth waited until the day

of trial to produce “trail camera” photographs. Appellant’s Brief at 13.




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      As to the trail camera photographs, Attorney Morrone testified that he

“believe[d] there was an issue with the handling of the photographs.” N.T.

PCRA Hearing, 8/31/17, at 54. Nevertheless, Attorney Morrone testified that

there were no trail photographs from the day of the incident because the trail

camera “was not recording anything from days before the incident . . . so they

had nothing that would prove or disprove [Appellant’s] charges on that day.”

Id. at 55.

      The PCRA court determined that “all evidence was provided prior to the

trial, despite [Appellant’s] recollection.” PCRA Court Opinion, 11/7/17, at 7.

This factual conclusion is supported by the record and, thus, Appellant’s claim

fails for lack of arguable merit. See Bardo, 105 A.3d at 685. Further, even

if the Commonwealth did not produce the trail photographs until the day of

trial, we do not see how Attorney Morrone’s failure to request a continuance

caused Appellant prejudice. This is because the photographs did not concern

the day of the incident and Attorney Morrone never testified that he needed a

continuance to prepare for the evidence. Commonwealth v. Wholaver, 177

A.3d 136, 144 (Pa. 2018) (“counsel is presumed to have been effective and

[]   the   petitioner   bears   the   burden   of   proving   counsel's   alleged

ineffectiveness”). Thus, for this independent reason, Appellant’s claim fails.

       Next, Appellant contends, Attorney Morrone was ineffective for failing

to properly cross-examine Pamela Moyer and Officer Sheetz. Appellant’s Brief

at 16. In particular, Appellant claims that Attorney Morrone was ineffective




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because he did not cross-examine the two witnesses with questions that

Appellant had proposed. Id. at 22.

      Appellant’s claim fails. As the PCRA court explained:

        The [PCRA] court finds that trial counsel conducted cross-
        examination consistent with a reasonable strategic basis for
        [Appellant’s] case. Trial counsel testified that he considered
        all the questions provided by [Appellant] and chose, for
        strategic reasons, to ask the relevant questions. Because
        trial counsel had a reasonable strategic basis for his [] action
        or inaction, [Appellant’s] claim[] fails.

PCRA Court Opinion, 11/7/17, at 8-9 (some internal capitalization omitted).

      We agree with the PCRA court’s cogent analysis and conclude that, since

Attorney Morrone’s cross-examination of Pamela Moyer and Officer Sheetz

was reasonable and was “designed to effectuate [Appellant’s] interests,”

Appellant’s claim on appeal fails.

      Fourth, Appellant claims that counsel was ineffective for failing to

include him in the jury selection process. However, during the PCRA hearing,

the PCRA court judge (who was also the trial court judge) noted:

        The trial transcript clearly shows that [Attorney] Morrone sat
        through at least one full jury selection before his and then sat
        through most of another one before his, and then [Attorney]
        Morrone said at the time and in front of me and in front of
        [Appellant], that he and [Appellant] did talk about which
        jurors they liked or didn’t like before the attorneys came to
        sidebar and the jury was selected. So, that is clearly reflected
        in the transcript that was filed in this case. So that happened
        here in the court in front of everybody.

N.T. PCRA Hearing, 8/31/17, at 20-21 (some internal capitalization omitted).




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      Therefore, the PCRA court concluded that Appellant’s ineffective

assistance claim had no arguable merit, as Appellant “was present for and

gave input regarding his own jury selection.” PCRA Court Opinion, 11/7/17,

at 10. The record supports the PCRA court’s factual finding. Thus, Appellant’s

fourth claim on appeal fails for lack of arguable merit. See Bardo, 105 A.3d

at 685.

      Fifth, Appellant claims that Attorney Morrone was ineffective for failing

to object to the Commonwealth’s opening statement, which mentioned

Appellant’s prior record. Appellant’s Brief at 26-28. This claim automatically

fails because Appellant was charged with persons not to possess firearms and,

as an element of the crime, the Commonwealth was required to prove that

Appellant was convicted of an enumerated offense.          See 18 Pa.C.S.A.

§ 6105(a)(1) (“[a] person who has been convicted of an offense enumerated

in subsection (b) . . . shall not possess, use, control, sell, transfer or

manufacture . . . a firearm in this Commonwealth”).       Therefore, since the

Commonwealth was required to prove that Appellant had a prior disqualifying

conviction, the Commonwealth was permitted to mention Appellant’s prior

record in its opening statement. See, e.g., Commonwealth v. Parker, 919

A.2d 943, 950 (Pa. 2007) (“A prosecutor's statements must be based on

evidence that he plans to introduce at trial. . . .   A prosecutor's opening

statements may refer to facts that he reasonably believes will be established

at trial”) (internal quotations and citations omitted).   Appellant’s claim on

appeal thus fails.

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      Finally, Appellant claims that trial counsel was ineffective for “fail[ing]

to file a motion to produce discovery from the Game Commission relating to

the camera and photos.” Appellant’s Brief at 28. This claim relates to the

trail photographs that, Appellant insists, were taken on the day of the incident.

Id. at 29-30. However, and again, Attorney Morrone testified that there were

no trail photographs from the day of the incident because the trail camera

“was not recording anything from days before the incident . . . so they had

nothing that would prove or disprove [Appellant’s] charges on that day.” Id.

at 55. Appellant did not produce any evidence to the contrary at the PCRA

hearing. Therefore, Appellant’s claim fails.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2018




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