J-S83030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
LOUIS RODERICK OGDEN                    :
                                        :
                  Appellant             :   No. 2315 EDA 2017

                 Appeal from the PCRA Order June 26, 2017
 In the Court of Common Pleas of Wayne County Criminal Division at No(s):
                          CP-64-CR-0000319-2014


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.:                       FILED FEBRUARY 05, 2018

     Appellant, Louis Roderick Ogden, appeals from the order entered on

June 26, 2017, which denied him relief under the Post-Conviction Relief Act

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

     We have previously summarized the underlying facts of this case:

        On the morning of June 20, 2014, Rebecca Pisall,
        Appellant’s 20-year-old niece, arrived at Appellant’s home in
        Lake Ariel to purchase heroin from Appellant. After a brief
        conversation in the kitchen with Rebecca, Appellant’s
        daughter, Mary Langendorfer, who lived with Appellant,
        woke Appellant up and told him Rebecca wanted to
        purchase heroin. Appellant then tossed a small black bag
        containing heroin at Mary and told Mary to “take care of it.”
        Mary took the heroin into the kitchen, gave Rebecca three
        bags of heroin in exchange for [$60.00], put the money in
        the black bag, and returned the black bag to Appellant.

        When Mary returned to the kitchen, Rebecca claimed that
        the bags were empty and demanded her money back. Mary
        returned to Appellant and, after learning of Rebecca’s
        complaint, Appellant pulled a loaded gun from underneath
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        his pillow, walked into the kitchen, pointed the gun at
        Rebecca, and fatally shot Rebecca in the forehead from
        [four to eight] inches away. Appellant then pointed the gun
        at Mary’s throat and said, “it just went off” in an “angry
        tone like he was telling [Mary] what to do.”

        Appellant called 911 shortly thereafter and Appellant, who
        was very upset, admitted during the call that he had shot
        Rebecca in the head. Appellant provided a Mirandized[fn.1]
        statement to Pennsylvania State Trooper Sharon Palmer,
        admitting all of the above facts but stating that he had: (1)
        traveled to Philadelphia the night before the shooting to
        purchase heroin; (2) used [20] bags of heroin while in
        Philadelphia; (3) returned to his house in Wayne County
        and went to sleep; [and,] (4) only wanted to scare Rebecca
        when the gun went off accidentally. He also admitted to
        being familiar with guns and gun safety.

           [fn.1] Miranda v. Arizona, 384 U.S. 436 (1966).

        At Appellant’s jury trial . . . , the Commonwealth presented
        testimony from Appellant’s daughter Mary; 911 dispatcher
        Forest Mohn; Pennsylvania State Troopers Sharon Palmer,
        Gerald Gustas, and Sean Doran, and Corporal Michael
        Brown; [and,] forensic pathologist Dr. Gary Ross. The trial
        court admitted Appellant’s statement to police into
        evidence.    Appellant presented no evidence [during his
        case-in-chief].

        On September 22, 2015, the jury convicted Appellant of
        first-degree murder[fn.2] and the trial court imposed the
        statutorily mandated sentence of life in prison [without the
        possibility of parole].[fn.3]

           [fn.2 18 Pa.C.S.A.] § 2502(a).

           [fn.3 42 Pa.C.S.A.] § 9711.

Commonwealth v. Ogden, 159 A.3d 39 (Pa. Super. 2016) (unpublished

memorandum) at 1-3 (internal citations omitted).




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      We affirmed Appellant’s judgment of sentence on October 11, 2016;

Appellant did not file a notice of appeal with the Pennsylvania Supreme

Court. Id. at 1-12.

      On November 10, 2016, Appellant filed a counseled PCRA petition

where he claimed, among other things, that his trial counsel was ineffective

for: 1) failing to present expert and lay witnesses who would testify as to

his diminished capacity due to voluntary intoxication; 2) failing to present a

psychiatrist and toxicologist “to testify [regarding] the effect of drugs on

[Appellant] as [to] the voluntariness of his confession to the police;” and, 3)

failing to present a ballistics expert who would have testified that the

shooting was accidental. Appellant’s PCRA Petition, 11/10/16, at 1-8.

      On April 21, 2017, the PCRA court held an evidentiary hearing on

Appellant’s petition. Appellant presented two witnesses during the hearing:

Appellant’s trial attorney, Steven E. Burlein, Esquire (hereinafter “Attorney

Burlein”), and private investigator James Sulima (hereinafter “Investigator

Sulima”).

      As Attorney Burlein testified, Appellant chose not to testify at trial

because there was “a concern as to how he would testify.”           N.T. PCRA

Hearing, 4/21/17, at 5-6. Attorney Burlein explained:

        we had a discussion throughout the case as to whether
        [Appellant] would or would not testify. And shortly before
        [Appellant’s case-in-chief], we would have started our case
        with him testifying, we went in the back room, in the back
        of the courtroom and had a discussion . . . and we had a
        discussion about whether he wanted to take the stand or


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        not. And [Appellant] gave a quote to the effect that he
        would come off the stand and bite the prosecutor on her
        neck. So, we decided that would be inappropriate on the
        stand if he wasn’t going to handle himself any better than
        that. And we said, you know, if you don’t take the stand,
        we have a problem with the intoxication defense. Well,
        essentially we have no intoxication defense, and he
        understood that . . . he essentially chose not to [testify].


Id.

      Attorney Burlein testified that he investigated a voluntary intoxication

defense for Appellant’s case and, to that end, Attorney Burlein hired a

psychiatrist named Dr. Carla Rodgers “to look into the effects of the drugs in

[Appellant’s] system.”    Id. at 6.   Attorney Burlein testified that, after Dr.

Rogers examined Appellant, she agreed to testify during the pre-trial

suppression hearing. Id. at 7-8. However, Dr. Rogers refused to opine on

whether, on the night of the murder, Appellant exhibited diminished capacity

due to voluntary intoxication and she further refused to testify on Appellant’s

behalf at trial. As Attorney Burlein testified:

        [Dr. Rogers] said that she could testify insofar as an
        [o]mnibus [pre-trial motion] hearing and that’s where her
        testimony was used. However, she said she would not
        testify at trial, due to [Appellant’s] credibility. And[,] in
        fact, her wording to me was, he is a world class B.S. artist,
        so I cannot believe what he’s telling me and I can’t quantify
        or qualify what was in his system and the effects it would
        have had on him.

Id. at 7.

      Attorney Burlein also testified that, in preparation for trial, he hired

Investigator Sulima to investigate the case.       However, Attorney Burlein



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chose not to call Investigator Sulima as a witness at trial because “the sum

total of the investigation produced negligible results.” Id. at 14.

      Finally, Attorney Burlein testified that he did not call a ballistics expert

because “there was really no question as to how . . . the incident occurred.

There was no question as to what weapon was used or the bullet that

pierced the skull. There was no question as to any of that.” Id. at 33.

      Following Attorney Burlein’s testimony, Appellant called Investigator

Sulima as a witness at the hearing.       Investigator Sulima testified that he

investigated the case at the behest of Attorney Burlein.         Id. at 40.    As

Investigator Sulima testified, he began his investigation by interviewing

Appellant. According to Investigator Sulima, during the interview, Appellant

told him that “the gun accidentally went off” and that, on the night before

the shooting, Appellant had ingested an unspecified amount of heroin. Id.

at 44-45.

      Investigator Sulima testified that, after interviewing Appellant, he

interviewed a number of other individuals; however, Investigator Sulima

testified, “the witnesses that I spoke to, I felt, did not help [Appellant] in

any way.” Id. at 51.

      On June 26, 2017, the PCRA court denied Appellant PCRA relief and

Appellant filed a timely notice of appeal. Appellant raises one broadly stated

claim on appeal:

        Did the [PCRA] court err and abuse its discretion, in denying
        [Appellant’s] petition for post-conviction relief?


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Appellant’s Brief at 4.

      We “review an order granting or denying PCRA relief to determine

whether the PCRA court’s decision is supported by evidence of record and

whether its decision is free from legal error.”   Commonwealth v. Liebel,

825 A.2d 630, 632 (Pa. 2003).

      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

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:


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        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
        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, to prevail on a claim that counsel was ineffective for failing to

call a witness at trial, Appellant must establish that:      “(1) the witness[]

existed; (2) the witness[ was] available to testify; (3) counsel knew, or

should have known, the witness[] existed; (4) the witness[ was] willing to

testify; and (5) the absence of the witness[’] testimony was so prejudicial

that it denied [Appellant] a fair trial.”   Commonwealth v. Solano, 129

A.3d 1156, 1166 (Pa. 2015).

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      A review of Appellant’s brief reveals the following claims:      1) trial

counsel was ineffective for failing to present a toxicologist who would testify

as to Appellant’s diminished capacity due to voluntary intoxication; 2) trial

counsel was ineffective for failing to present a ballistics expert who would

testify that the firearm accidentally discharged; 3) trial counsel was

ineffective for failing to present Appellant as a witness, so that Appellant

could testify that he “used copious amounts of narcotics during the evening

[] and early morning hours before the killing” and that he “had ingested

drugs that he had on his person in the bathroom of the State Police

Barracks” prior to confessing; 4) trial counsel was ineffective for failing to

present Investigator Sulima to testify as to Appellant’s ingestion of narcotics

prior to the murder and in the State Police Barracks’ bathroom; and, 5) trial

counsel was ineffective for failing to present Appellant’s parents as character

witnesses at trial. See Appellant’s Brief at 20-29.

      We need not discuss Appellant’s claims at length, as Appellant

produced limited evidence during the PCRA hearing and, in so doing, failed

to satisfy his burdens of production and persuasion on his ineffectiveness of

counsel claims. Thus, we briefly dispose of Appellant’s claims: 1) during

the PCRA hearing, Appellant did not present a toxicologist or any other

evidence to establish that, at the time of the murder, he suffered from

diminished capacity due to voluntary intoxication (therefore, there is no

arguable merit to Appellant’s claim that trial counsel was ineffective for

failing to present a toxicologist who would testify as to Appellant’s

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diminished capacity due to voluntary intoxication); 2) during the PCRA

hearing, Appellant did not present a ballistics expert or any other evidence

to establish that his firearm accidentally discharged (therefore, there is no

arguable merit to Appellant’s claim that trial counsel was ineffective for

failing to present a ballistics expert who would testify that the firearm

accidentally discharged); 3) Appellant did not testify during the PCRA

hearing and there was no evidence that Appellant was willing to testify at

trial (therefore, trial counsel was not ineffective for failing to present

Appellant’s testimony at trial or during the pre-trial suppression hearing); 4)

Investigator Sulima’s proposed testimony regarding Appellant’s ingestion of

narcotics prior to the murder and in the State Police Barracks’ bathroom was

inadmissible hearsay (therefore, trial counsel was not ineffective for failing

to present Investigator Sulima as a witness at trial or in the pre-trial

suppression hearing); and, 5) Appellant’s parents did not testify at the PCRA

hearing and no evidence exists as to whether they were willing to testify or

as to their proposed testimony (therefore, trial counsel was not ineffective

for failing to present Appellant’s parents as character witnesses at trial).

      All of Appellant’s claims on appeal thus fail.      We affirm the PCRA

court’s order, denying Appellant post-conviction collateral relief.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/18




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