J-S61040-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    :       IN THE SUPERIOR COURT OF
                                                 :             PENNSYLVANIA
                          Appellee               :
                                                 :
                     v.                          :
                                                 :
PATRICK REED MORAN,                              :
                                                 :
                          Appellant              :       No. 809 WDA 2014

                Appeal from the PCRA Order April 23, 2014,
              in the Court of Common Pleas of Potter County,
            Criminal Division at No(s): CP-53-CR-0000148-2012

BEFORE: FORD ELLIOTT, P.J.E., WECHT and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                              FILED OCTOBER 16, 2014

      Patrick Reed Moran (Appellant) appeals from the order entered on

April 1, 2014, denying his petition filed pursuant to the Post Conviction Relief

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

      The background underlying this matter can be summarized in the

following manner.

      On December 10, 2012, a jury convicted Appellant of possession
      of a firearm prohibited.         The conviction stemmed from
      Appellant’s possession of a shotgun while on parole.           On
      February 8, 2013, the trial court sentenced Appellant to forty-
      eight (48) to one-hundred-twenty (120) months’ imprisonment.
      Appellant timely filed a notice of appeal on February 25, 2013. …

Commonwealth v. Moran, 93 A.3d 496 (Pa. Super. 2013) (unpublished

memorandum      at        1).   “[On    direct       appeal,]      Appellant   argue[d]   the

Commonwealth         improperly       elicited       prejudicial     testimony   concerning




* Retired Senior Judge assigned to the Superior Court.
J-S61040-14

Appellant’s possession of a firearm, his threats to injure and/or kill his

estranged wife, and his drug use. …” Id. at 2.

      In     its    memorandum        opinion   affirming   Appellant’s   judgment   of

sentence, this Court reproduced the complained-of testimony.                The Court

then initially stated, “After a thorough examination of these exchanges, we

conclude the testimony regarding Appellant’s drug use and threats to his

estranged wife established context for Appellant’s possession of the

shotgun.”          Id. at 7.      The Court, however, ultimately determined that

Appellant waived his issue because he did not object to the testimony at

trial. Id.

      Appellant did not petition our Supreme Court for allowance of appeal.

However, he did file timely a pro se PCRA petition. His counsel subsequently

filed a supplemental PCRA petition. The crux of Appellant’s claim was that

trial counsel was ineffective for failing to object to the testimony about which

he complained on direct appeal.

      The PCRA court held a hearing regarding Appellant’s petition. On April

23, 2014, the court denied the petition, concluding that Appellant failed to

establish     the     prejudice    prong   of   the   ineffective-assistance-of-counsel

standard.1         Appellant timely filed a notice of appeal.        The PCRA court



1
  In the PCRA court’s opinion in support of its order, the court, at least to
some extent, conflated the prejudice prong of the ineffective-assistance-of-
counsel standard with a prejudice analysis under Pennsylvania Rule of
Evidence 403.

                                            -2-
J-S61040-14

directed Appellant to comply with Pa.R.A.P. 1925(b), and Appellant then filed

a Pa.R.A.P. 1925(b) statement.

      In his brief to this Court, Appellant asks us to consider one question,

namely, “Must trial counsel object to prejudicial statements by the

prosecutor during a jury trial concerning threats to injure and/or kill

[Appellant’s] separated wife and [Appellant’s] drug usage, when [Appellant]

was never charged with these crimes?” Appellant’s Brief at 2.

      In support of his issue, Appellant notes that, just prior to his trial, a

murder occurred in Potter County and that the murder “involved a firearm,

threats, and an ex-wife (the victim).” Id. at 7. Appellant argues,

      [Trial counsel] did not object, nor request a mistrial, when
      testimony was presented by the Commonwealth that referred to
      [Appellant’s] usage of a firearm and threats to injure/or kill his
      separated wife. This was particularly prejudicial as [Appellant]
      was not charged with these alleged threats, but also the facts
      were similar in the Potter County murder case[.]

Id.   Appellant also complains that counsel failed to object to testimony

regarding his use of drugs.       Appellant does not seem to challenge the

relevancy of the testimony regarding his drug use or threats to his estranged

wife; rather, he seems to suggest that the testimony was unfairly

prejudicial.

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.    Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).


                                     -3-
J-S61040-14

      Appellant’s issue involves a claim that his trial counsel rendered

ineffective assistance of counsel. “To establish ineffectiveness of counsel, a

PCRA petitioner must show the underlying claim has arguable merit,

counsel’s actions lacked any reasonable basis, and counsel’s actions

prejudiced the petitioner. Prejudice means that, absent counsel’s conduct,

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

been different.”    Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa.

Super. 2013) (citations omitted).

      At Appellant’s trial, the jury was charged with determining whether the

Commonwealth proved that Appellant violated 18 Pa.C.S. § 6105(a)(1),

which provides:

      A person who has been convicted of an offense enumerated in
      subsection (b), within or without this Commonwealth, regardless
      of the length of sentence or whose conduct meets the criteria in
      subsection (c) shall not possess, use, control, sell, transfer or
      manufacture or obtain a license to possess, use, control, sell,
      transfer or manufacture a firearm in this Commonwealth.

Appellant stipulated that he had been convicted of an offense enumerated in

18   Pa.C.S.   §   6105(b).   Thus,   in    order   to   convict   Appellant,   the

Commonwealth simply had to prove that Appellant possessed, used,

controlled, sold, transferred, or manufactured a firearm.

      The Commonwealth’s first witness at trial was Joshua Blass. According

to Blass, he purchased a shotgun from a store on May 14, 2012, and then

sold that gun to Appellant approximately two weeks later.




                                      -4-
J-S61040-14

     The second witness to testify was Stacey Imler.      Imler testified that

Appellant was a neighbor and friend. Imler’s family owns a camp in Tioga

County.   Imler stated that Appellant and others were at that camp in late

May or early June of 2012.

     Appellant highlights the following exchange between the prosecutor

and Imler:

     Q. If you can recall what was [Appellant] doing [at the camp] at
     that time?

     A. We were up having a good time, had a [bonfire], we were
     drinking, partying that was about it.

     Q. And was [Appellant] drinking and partying with you guys?

     A. He’s not a big drinker I believe he partook in the party.

     Q. Any drugs?

     A. Yes.

N.T., 12/10/2012, at 30-31.

     Imler went on to testify that he observed Appellant holding a shotgun

at the camp. While Imler stated that Blass owned the gun, he also testified

that he asked Appellant why he purchased the gun. According to Imler, at

some point, Appellant said that “he takes his marriage vows very seriously

and to death do us part.” Id. at 33. Imler then stated that Appellant and

Appellant’s wife, Rebecca Carr, had broken up; so, Imler “warned [Carr] that

[Appellant] had a gun and [] also warned her about the vows to death do us

part.” Id. at 34. Imler further testified that, after he informed Carr of the



                                    -5-
J-S61040-14

gun at his camp, she and Matt Yoder retrieved it in order to keep Appellant

from getting the gun again.

      On cross-examination, Imler admitted to using “alcohol, weed, [and]

bath salt” during the time Appellant was at his camp. Id. at 37. He also

believed Blass, who also was at the camp, may have used bath salt as well.

On redirect examination, Imler stated that he did not see Appellant use any

bath salt. Imler also stated,

      Everybody knows [Appellant], knows that his marriage vows
      were sacred and anyone that’s married that’s part of your vows
      too to death do us part for anyone that’s married part of you
      vows is to death do us part. He meant one thing or another it’s
      still death do us part.

Id. at 40.

      Ryan Rachiele testified next for the Commonwealth. The focus of his

testimony was that, in late May or early June of 2012, Appellant offered to

give him a shotgun. Rachiele asserted that he declined Appellant’s offer.

      The Commonwealth then elicited testimony from Carr.        Carr stated

that she and Appellant separated in May of 2012 due to Appellant’s anger

and abusiveness.    She reported that, after she moved out of the couple’s

apartment, Imler informed her that Appellant had a shotgun. According to

Carr, at some point after speaking to Imler, she asked Appellant why he got

the gun; he stated, “You know why.” Id. at 58. The prosecutor asked Carr

if she knew what Appellant meant by that statement, and she responded,

“From conversations from before I left him, yeah, he said that I would get a



                                    -6-
J-S61040-14

bullet in the head before I would leave him and death, until death do us

part.” Id.

      Carr further testified that, after her conversation with Appellant, she

and Matt Yoder went to Imler’s camp and retrieved the gun.                  The

Commonwealth also presented Yoder as a witness, and for the most part, he

corroborated Carr’s testimony.

      Roger Probel, Carr’s step-father, testified for the Commonwealth. He

reported that Yoder gave him the shotgun and that he then gave the gun to

the chief of police in Galeton. The remainder of the testimony came from

the Galeton chief of police, a forensic evidence technician, and a firearm and

tool mark examiner.

      We first will address Appellant’s claim that trial counsel was ineffective

for failing to object to Imler’s testimony regarding Appellant’s drug use. The

only testimony that arguably suggests that Appellant used any drugs was

Imler’s positive response to the prosecutor’s question, “Any drugs?” Id. at

31.   The prosecutor did not specifically ask Imler if Appellant used drugs.

Furthermore, before he answered this ambiguous question, Imler stated that

Appellant was not a big drinker, and after he answered the question, Imler

testified that he did not see Appellant take any bath salt.

      Thus, even if we assume arguendo that trial counsel should have

objected to this passing reference to drug use, we nonetheless conclude that

Appellant has not established the prejudice prong of the ineffective-



                                     -7-
J-S61040-14

assistance-of-counsel standard.   Appellant has failed to convince us that,

had counsel successfully objected to the prosecutor’s question and Imler’s

answer, there is a reasonable probability that the outcome of his trial would

have been different.

     We now will address Appellant’s claim that trial counsel was ineffective

for failing to object to testimony regarding his devotion to his marriage

vows, which could be construed as threats to Carr.       Appellant seems to

suggest that trial counsel should have objected to this testimony on the

ground that its probative value was outweighed by the danger of causing

him unfair prejudice. We disagree.

     Pennsylvania Rule of Evidence 403 provides that a “court may exclude

relevant evidence if its probative value is outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.”   Pa.R.E. 403.   “‘Unfair prejudice’ means a tendency to suggest

decision on an improper basis or divert the jury's attention away from its

duty of weighing the evidence impartially.”    Commonwealth v. Wright,

961 A.2d 119, 151 (Pa. 2008) (citation omitted).    Our Supreme Court has

explained that

     [e]vidence will not be prohibited merely because it is harmful to
     the defendant. Th[e Supreme] Court has stated that it is not
     required to sanitize the trial to eliminate all unpleasant facts
     from the jury’s consideration where those facts are relevant to
     the issues at hand and form part of the history and natural



                                     -8-
J-S61040-14

      development of the events and offenses for which the defendant
      is charged.

Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (citation

omitted).

      As we noted above, Appellant does not challenge the relevancy of the

evidence regarding the threats he made toward Carr.             Furthermore,

evidence of those threats helped form the history and natural development

of the events and offenses for with Appellant was charged.            Testimony

regarding those threats explained why Appellant purchased the gun, how

Carr knew about the gun, why she retrieved the gun, and why Probel turned

over the gun to the police. Given the nature and context of the testimony

regarding Appellant’s threats toward Carr, we are not persuaded that this

evidence had a tendency to suggest a decision on an improper basis or

diverted the jury’s attention away from its duty of weighing the evidence

impartially.   We thus conclude that Appellant’s claim that counsel should

have objected to this testimony on the basis that it was unfairly prejudicial

lacks arguable merit.

      For these reasons, we conclude that the PCRA court properly denied

Appellant’s PCRA petition. We, therefore, affirm the court’s order.

      Order affirmed.




                                    -9-
J-S61040-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/16/2014




                          - 10 -
