J-S78043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

HERBERT ARTHUR STARBIRD

                             Appellant                 No. 848 WDA 2016


                   Appeal from the PCRA Order May 19, 2016
         in the Court of Common Pleas of Blair County Criminal Division
                       at No(s): CP-07-CR-0002632-2008

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.: FILED: March 24, 2017

        Appellant, Herbert Arthur Starbird, appeals from the order of the Blair

County Court of Common Pleas denying his first Post Conviction Relief Act 1

(“PCRA”) petition.     Appellant claims his trial counsel was ineffective for

stipulating to the proposed testimony of the investigating detective instead

of having the detective testify at trial. We affirm.

        This Court previously summarized the factual history of this case.

           On October 20, 2007, Helen Holenchek, a teller supervisor
           at First Commonwealth Bank (First Commonwealth)
           informed Appellant that his account had a negative
           balance. N.T., 3/8/10, at 44-45. On October 23, 2007, a
           new teller at the bank, Christina Heiling, made a data
           entry error, accidentally depositing $280,000.00 into
           Appellant’s account, funds which should have gone to
           another client’s business account. Id. at 67, 70-71.


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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           Appellant never contacted the bank to inquire as to why
       these funds were deposited into his account. Id. at 188.
       Instead, Appellant began withdrawing the money from his
       account. During this time, Appellant opened a separate
       savings account at Investment Savings Bank (Investment
       Savings).    Starting on November 16, 2007, Appellant
       withdrew $16,400.00 from his First Commonwealth
       account and deposited those funds into his Investment
       Savings account. Id. at 228, 231. Around the same
       period of time, Appellant opened another account at
       Citizens Bank (Citizens). He withdrew $27,144.51 from his
       First Commonwealth account, and deposited it into his
       Citizens account. Id. at 240, 243-247. In February 2008,
       Appellant began to withdraw the money at these two
       banks and spent it. Id. 235, 248.

          First Commonwealth discovered its $280,000.00 error
       on February 7, 2008. Id. at 86, 90-91. By that time,
       Appellant had written over 200 checks off his account,
       withdrawing over $178,000.00. Id. at 104-105. First
       Commonwealth immediately froze all of Appellant’s
       accounts, recouped the remaining $102,935.46 left in his
       checking account, and recouped an additional $14,000.00
       from Appellant’s savings account. Id. at 105-106. First
       Commonwealth also recouped an additional $624.00
       electronically deposited into Appellant’s account from the
       United States Treasury.      Id. at 106.     In sum, First
       Commonwealth failed to recoup a total of $157,206.12.
       Id. at 121.

          On February 8, 2008, the manager of the bank, Randy
       Simpson,    confronted    Appellant   about   the   funds
       erroneously deposited into his account. Id. at 114. At
       that time, Appellant admitted to Simpson that he did not
       make said deposit. Id. at 115. First Commonwealth
       offered two solutions through which Appellant could repay
       the money. The bank offered Appellant a 20-30 year
       mortgage on his home equal to the amount of the missing
       funds, secured by Appellant’s residence. Id. at 120, 204-
       105. The bank also offered to accept 80% of the net sale
       price of Appellant’s residence as partial payment toward
       the amount due. Id. at 173-174. Appellant rejected both
       of these options. Id. at 174, 204. After attempting to
       resolve the dispute for seven months to no avail, First


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           Commonwealth turned the matter over to the Altoona
           Police Department. On September 19, 2008, Appellant
           was arrested for theft of property lost or mislaid by
           mistake[2] and receiving stolen property.[3]

Commonwealth v. Starbird, 1301 WDA 2011 (Pa. Super. May 8, 2012)

(unpublished memorandum at 1-3).

         Appellant was represented by Thomas Dickey, Esq. (“trial counsel”),

and proceeded to a two-day jury trial during which numerous bank

employees testified. On the second day of trial, Attorney Dickey entered the

following stipulation into the record:

           [I]f called Detective Scott Koehle would testify that he
           became involved on or about August 20, 2008 when he
           responded to the Law Office of Attorney Rick Gieg[, First
           Commonwealth’s counsel].        He made the following
           notation—the following notation was made in his incident
           report and this was a verbatim quote, Your Honor,
           according to [two First Commonwealth employees,] Mr.
           [James] Boyle and Mr. Simpson, and Attorney Gieg, the
           bank has not been successful in collecting any further
           monies and request that [Appellant] be arrested for theft.
           And that complaint was filed on or about 9-18-2000.

N.T., 3/9/10, at 103-04. Neither party called Detective Koehle to testify at

trial.   Appellant testified and asserted that he immediately contacted First

Commonwealth after discovering the mistaken deposit.         Id. at 25.   He

averred that he used the money after receiving assurances that the deposit

was legitimate and the money was his. Id. at 25-27, 29.


2
    18 Pa.C.S. § 3924.
3
    18 Pa.C.S. § 3925(a).



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         On March 9, 2010, the jury found Appellant guilty of theft and

receiving stolen property and determined the amount taken was over

$2000.4      On May 13, 2010, the trial court sentenced Appellant to seven

years’ probation for theft5 and $157,206.12 in restitution, as well as $100 in

fines.

         Appellant took a direct appeal, and this Court affirmed the judgment of

sentence on May 8, 2012.        Starbird, 1301 WDA 2011.      Appellant did not

petition the Pennsylvania Supreme Court for allowance of appeal.

         The PCRA court received Appellant’s first, timely, pro se PCRA petition

on December 6, 2012. On April 2, 2015, appointed counsel, Attorney Lucas

A. Kelleher, Esq., filed an amended petition asserting trial counsel was

ineffective for failing to call Detective Koehle as a witness.6       The court

conducted an evidentiary hearing on April 11, 2016. Appellant testified that

4
 See 18 Pa.C.S. § 3903(a.1) (grading a theft offense involving more than
$2,000 as a third-degree felony).
5
    The trial court merged the count of receiving stolen property.
6
  The PCRA court initially appointed Timothy S. Burns, Esq., on December
18, 2012. On March 13, 2013, Attorney Burns informed Appellant he was
not eligible for court-appointed counsel based on his income. On August 20,
2013, the court appointed Paul M. Puskar, Esq. to represent Appellant.
Attorney Puskar filed a motion to withdraw as counsel on May 13, 2014,
asserting a breakdown in the attorney-client relationship. On October 28,
2014, following a hearing, the PCRA court appointed Lucas A. Kelleher, Esq.,
who had represented Appellant in his direct appeal, subject to Appellant
withdrawing his ineffectiveness claims against Attorney Kelleher and waiving
any potential conflicts. Appellant waived all potential conflicts with Attorney
Kelleher.




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he instructed trial counsel to ensure Detective Koehle was present for trial.

N.T., 4/11/16, at 15.       Appellant asserted that the detective made

misstatements in his investigative report and affidavit of probable cause.

Id. at 18-19, 23-24, 26-29. Appellant further suggested that the detective’s

testimony at trial was necessary to establish that he initially made a “good

faith” payment of $5,500 to the bank. Id. at 8. No other witnesses were

called at the hearing.

      On May 19, 2016, the PCRA court entered the instant order denying

relief. The court reasoned, in relevant part:

         [Appellant] cannot show that he was prejudiced by any
         ineffectiveness of his trial counsel as Detective Koehle was
         not a potential fact witness. Detective Koehle could only
         testify as to his investigation, testimony which would have
         been full of objectionable hearsay. Even if [trial counsel]
         had called Detective Koehle as an adverse witness, and
         shown him to be an unreliable witness, it would not have
         made any difference to the outcome of this case. The
         Commonwealth had overwhelming evidence against
         Petitioner and Detective Koehle could provide no proof or
         absolution to the charges for which the jury found
         Petitioner guilty. This case rested entirely on the bank
         records, the testimony of bank employees, and the
         testimony of [Appellant]. Detective Koehle’s absence did
         not prejudice [Appellant] from cross-examining the bank
         employees or challenging the bank’s records.             The
         evidence against [Appellant] stands with or without
         Detective Koehle.




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PCRA Ct. Op. & Order, 5/19/16, at 6-7.             The court further suggested that

trial counsel’s decision to stipulate to Detective Koehle’s testimony was

reasonable. Id. at 7. This timely appeal followed.7

      Appellant presents the following interrelated questions for review:

         A. Whether the PCRA Court erred/abused its discretion by
            failing to find Appellant’s 6th Amendment right to
            confront his accuser was violated, as the affiant who
            filed the charges against Appellant did not appear to
            testify at trial[?]

         B. Whether the PCRA Court erred/abused its discretion by
            failing to find Appellant’s prior counsel ineffective for
            failing [to] subpoena the Commonwealth’s affiant to
            testify at trial, and for stipulating to the his testimony,
            as the record demonstrates the inability to cross
            examine the affiant prejudiced the Appellant’s
            defense[?]

Appellant’s Brief at 4.

      Appellant    argues    that   trial        counsel’s     stipulation    that   First

Commonwealth      “was    unsuccessful      in    collecting    any   further    monies”

precluded further examination of the detective.              Id. at 11.      According to

Appellant, cross-examination of the detective was critical to establish (1)

Appellant’s “negotiations and efforts with the bank to repay the money[,]”

(2) “other inconsistencies in the Commonwealth’s evidence[,]” such as most

of his withdrawals being under $100 before the mistaken deposit and over

$100 after the mistaken deposit, and (3) the lack of basis for the detective’s


7
  The PCRA court did not order a Pa.R.A.P. 1925(b) statement, although
Appellant did file a statement



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opinion that Appellant had committed theft.         Id. at 11-13.    Appellant

contends that he was prejudiced by trial counsel’s inaction because the

examination of the detective would have established Appellant did not intend

to deprive the bank of the money permanently and because the detective

would admit that the evidence against Appellant was “dubious.” Id. at 11-

14.   Appellant further claims trial counsel’s inactions deprived him of his

right to confront his accuser. Id. at 14. No relief is due.

      The following standards and principles govern our review:

             “In reviewing the propriety of an order granting or
         denying PCRA relief, an appellate court is limited to
         ascertaining    whether     the   record   supports   the
         determination of the PCRA court and whether the ruling is
         free of legal error.”    We pay great deference to the
         findings of the PCRA court, “but its legal determinations
         are subject to our plenary review.”

                                     ***

             To be eligible for relief based on a claim of ineffective
         assistance    of    counsel,    a   PCRA     petitioner must
         demonstrate, by a preponderance of the evidence, that (1)
         the underlying claim is of arguable merit; (2) no
         reasonable basis existed for counsel’s action or omission;
         and (3) there is a reasonable probability that the result of
         the proceeding would have been different absent such
         error. With regard to the second, i.e., the “reasonable
         basis” prong, this Court will conclude that counsel’s chosen
         strategy lacked a reasonable basis only if the appellant
         proves that “an alternative not chosen offered a potential
         for success substantially greater than the course actually
         pursued.” To establish the third prong, i.e., prejudice, the
         appellant must show that there is a reasonable probability
         that the outcome of the proceedings would have been
         different, but for counsel’s action or inaction.

            ...


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            [w]hen raising a claim of ineffectiveness for the
            failure to call a potential witness, a petitioner
            satisfies the performance and prejudice requirements
            of the [Strickland v. Washington, 466 U.S. 668,
            104 S. Ct. 2052, 80 L. Ed.2d 674 (1984) ] 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. . . .

         “To demonstrate Strickland prejudice, a petitioner must
         show how the uncalled witnesses’ testimony would have
         been beneficial under the circumstances of the case.”
         Counsel will not be found ineffective for failing to call a
         witness “unless the petitioner can show that the witness’s
         testimony would have been helpful to the defense. A
         failure to call a witness is not per se ineffective assistance
         of counsel for such decision usually involves matters of
         trial strategy.”

Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (en

banc) (citations omitted).

      Following our review, we agree with the PCRA court that Appellant did

not establish prejudice because the evidence of Appellant’s guilt was

overwhelming.     Additionally, although Appellant asserts that Detective

Koehle’s alleged testimony was necessary to establish that he made a

$5,500 payment to First Commonwealth, that fact was presented to jury.

See N.T., 3/8/10, at 203; N.T., 3/9/10, at 43.          Moreover, Appellant’s

contention that it was necessary to rebut Detective Koehle’s assertions

regarding the pattern of his checks before and after the mistaken deposit



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provides no basis for relief, because no evidence of such patterns was

presented as evidence at trial.      Lastly, there was no violation of the

Confrontation Clause, because the detective did not testify against Appellant

and the detective’s assertions and opinions were not admitted into evidence.

See generally Commonwealth v. Williams, 84 A.3d 680, 684 (Pa. 2014)

(reiterating that the right to confrontation is basically a trial right that

ensures the reliability of the evidence against a criminal defendant).

Consequently, we discern no support for Appellant’s assertions that the

detective’s testimony was necessary to ensure fairness of his trial, or that

the outcome at trial would have been different had he examined the

detective.   Thus, we agree with PCRA court that Appellant’s claims of

ineffectiveness did not warrant relief.8 See Matias, 63 A.3d at 810-11.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/24/2017



8
  We further note that Appellant did not call Detective Koehle or trial counsel
to testify at the PCRA hearing. Therefore, Appellant did not carry his burden
of establishing the detective was willing to concede that the case against
Appellant was dubious, or that trial counsel lacked a reasonable basis for his
decision to stipulate to Detective Koehle’s trial testimony and not call the
detective. See Matias, 63 A.3d at 810-11.



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