J-S01019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY JAMES BRUNNER

                            Appellant                  No. 663 WDA 2014


                Appeal from the PCRA Order February 19, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013465-2009


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                           FILED JANUARY 30, 2015

        Timothy Brunner (“Appellant”) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1     We

affirm.

        The trial court opinion sets forth the relevant facts and procedural

history of the case. See PCRA Court Pa.R.A.P. 1925(a) Opinion, September

12, 2014 (“1925(a) Opinion”), pp. 1-8.         Therefore, we have no need to

restate them.

        Appellant raises one issue for our review:

        I. Did the lower court abuse its discretion in dismissing the
        PCRA petition without a hearing and allowing counsel leave to
        withdraw, insofar as [Appellant] averred that his waiver of his
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
J-S01019-15


      right to call character witnesses was involuntary and unknowing
      because trial counsel was ineffective for failing to contact,
      interview and prepare the character witnesses that [Appellant]
      identified to counsel as being willing to testify on his behalf?

Appellant’s Brief, p. 4 (all capitals removed).

      In reviewing an order denying PCRA relief, our well-settled standard of

review is “to determine whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error.      The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

191-192 (Pa.Super.2013) (internal quotations and citations omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Edward J.

Borkowski, we conclude Appellant’s issue merits no relief. The PCRA court

opinion discusses and properly disposes of the question presented.         See

1925(a) Opinion, pp. 8-13 (finding: trial counsel not ineffective for failing to

call character witnesses where Appellant failed to illustrate prejudice – the

alleged witnesses’ testimony would not have negated the substantial

evidence of Appellant’s guilt; the trial court conducted a thorough oral

colloquy with Appellant regarding his right to testify and call character

witnesses during which Appellant acknowledged that he understood his right

to call character witnesses, discussed the right with his attorney, and that he

understood that the decision whether to call character witnesses was his

alone before knowingly, voluntarily, and intelligently waiving his right to call



                                      -2-
J-S01019-15



character witnesses).     Accordingly, we affirm on the basis of the PCRA

court’s opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2015




                                    -3-
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                                      FILED




IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

                      CRIMINAL DIVISION


  COMMONWEALTH OF                            CC 200913465
  PENNSYLVANIA,
       APPELLEE

          v.

  TIMOTHY BRUNNER,                           663 WDA 2014

       APPELLANT                             OPINION


                                              FILED BY:
                                              THE HONORABLE
                                             'EDWARDJ. BORKOWSKI

                                             COPIES TO:
                                             Suzanne Swan, Esq.
                                             428 Forbes A v.enue
                                             Suite 1710 Lawyers Building
                                             Pittsburgh,PA 15219

                                                Michael W.Streily, Esq.
                                                Office ·of .the District Attorney
                         '. .        . .. ,., . 401.County'Courthouse. . . -                                         -~   ". .. .
                                                436 Grant Street
                                                Pittsburgh, PA 15219
                                               •   '.'   ", -'.~. ,..,   . ":' <",'   ,:., ,<    '-', ,<   ,",




                                APP.ENDIXA .
                                                                     Circulated 01/06/2015 03:22 PM




iN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

                                  CRIMINAL DIVISION



      COMMONWEALTH OF                                       CC 200913465
      PENNSYLVANIA,
           APPELLEE

                  v.

     TIMOTHY BRUNNER,
          APPELLANT.


                                        OPINION

     BORKOWSKI, 1.



                               PROCEDURAL HISTORY

          Appellant, Timothy Brunner, was charged by criminal information (CC

     200913465) with one count of criminal homicide, 1 one count of kidnapping,2 one

 count of abuse of corpse,3 and one count of criminal conspiracy4

          Appellant proceeded to a jury trial on April 4, 2010, with codefendant

 Kristopher Benjamin, at the conclusion of which Appellant was found guilty of

 second degree murder, kidnapping, abuse of corpse, and criminal conspiracy .
    . ..... ..
           :




118 Pa.C.S.     § 2502.
2 18 Pa. CoS.   § 2901.
!l ' ,"            .      '
  18 Pa, c.s.   § 35lO. '
4
  18 Pa.CoS.    § 903.

                                                                                       2
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)
             On July 7, 2010, Appellant was sentenced by the Trial Court as follows:

            Count one: second degree murder -life imprisonment without the possibility

      of parole;

            Count two: kidnapping - four to eight years incarceration to be served

     consecutive to the period of incarceration imposed at count one;

            Count three: .abuse of corpse - one to two years incarceration to be served

     consecutive to the period of incarceration imposed at count two;

            Count four: criminal conspiracy - four to eight years incarceration to be

     served consecutive to the period of incarceration imposed at count three.

           Appellant filed a post sentence motion on July 13, 2010, which was denied

    by the Trial Court on August 20, 2010. Appellant filed a timely notice of appeal on

    September l7, 2010.

           On January 18, 2013, the Superior Court vacated Appellant's judgment of

    .sentence and remanded to the Trial Court for resentencing as counts one and two

    merged. Appellant filed a Petition for Allowance of Appeal to the Supreme Court

    on February IS, 2013, which was denied on July 17, 2013. On September 5,2013,

    Appellant was resentenced by the Trial Court as follows:

          Count one: second degree murder - life imprisonment without the possibility
                                                                           .,   .. ,   ,.


    of parole;

          Count two: kidnapping - merged with count one;


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       Count three: abuse of corpse - one to two years incarceration to be served

 consecutive to the period of incarceration imposed at count one;

       Count four: criminal conspiracy - four to eight years incarceration to be

 served consecutive to the period of incarceration imposed at count three.

       On October 25, 2013, Appellant filed a pro se PCRA petition. The Trial

Court .appointed counsel on October 29, 2013, and appointed counsel filed a

motion to withdraw pursuant to Turner-Finely on January 28, 2014. On January

30,2014, the Trial Court granted counsel's motion to withdraw and filed its notice

of intent to dismiss for the reasons stated in counsel's Turner-Finley letter. On

February 19,2014, the Trial Court denied Appellant's PCRA petition.

      This timely appeal follows.

                    STA TEMENT OF ERRORS ON APPEAL

      Appellant raises the following issues on appeal, and they are set forth

exactly.as Appellant framed them:

      A. The lower court abused its discretion in finding no merit to the
          claims raised in the PCRA petition, and denying the petition
          alleging trial counsel's ineffectiveness without a hearing, where
          the witnesses Mr. Brunner sought to present at his trial, but whom
          counsel failed to contact, interview and call to the stand, would
          have given testimony that would have raised a reasonable doubt as
          to Mr. Brunner's culpability, particularly as to the degree of
     '" homicide charged.
      B. The lower court abused its discretion in finding no merit to the
          claims raised in the PCRA petition, and denying the petition
         ,alleging trial counsel's ineffectiveness without ahearing, insofar as
          Mr. Brunner claimed in his petition that his waiver of his right to
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             call character witnesses was involuntary and unintelligent because
             counsel failed to contact, interview and prepare the character
             witnesses Mr. Brunner identified to counsel as being willing to
             testify on his behalf.

                                    FINDINGS OF FACT

         The facts of the case have previously been summarized as follows:

                In the early summer of 2009 Amy Kucsmas (victim) was
         actively involved in daily drug seeking behavior in the Mt. Oliver and
         Carrick section of Allegheny County. (TT 206-208, 223, 245-246)5
         In late June or early July Kucsmas spent several days in the apartment
        of Timothy Brunner. (T.T 283, 384-385, 738, 813-816) Brunner's
        residence was apartment number two (2) of a four (4) unit building
        located in Mt. Oliver, and at that time he was residing there with his
        girlfriend, Ceira Brown. (T.T. 280-281) Kristopher Benjamin was a
        friend and former co-worker of Brunner and lived in that same
        apartment building - apartment number four (4), which was located
        above Brunner's apartment. (TT. 281-282,679, 774-775, 809)
        Shortly after Kucsmas began staying at Brunner's apartment she
        "disappeared", taking approximately $200 of Brunner's money as
        well as his photo identification card (ID). (TT 282, 385-386,818)
               In the evening ofJuly 11,2009 Brunner, Benjamin and Brown
        went to the Hazelwood section of the City of Pittsburgh. In the early
       morning hours of July 12th they were returning to their Mt. Oliver
       apartment building when Benjamin saw Kucsmas walking along
       Brownsville Road in the Carrick section of the city. (T T 287, 342)
       They were traveling in a pick-up truck driven by Benjamin that
       belonged to a neighbor James House. (T.T. 285) Upon observing
       Kucsmas, Benjamin stated, "Fucking Amy", and pulled the truck
       over. (T.T. 287,343) Brunner and Benjamin got out of the truck and
       both men angrily confronted Kucsmas about the stolen money and ID.
       Kucsmas denied taking the money and eventually became so
       frightened during the confrontation that she urinated on herself. (TT
       209-216, 287-292, 387) Brunner took Kucsmas' ,purse and searched


 The designation "T.T" followed by numerals refers to Trial Transcript of April 4-14, 2010,
'5
which 'is comprised of two (2) volumes.
                                                                                                5
                                                               Circulated 01/06/2015 03:22 PM




     through it until he found the ID that had been stolen. (T.T. 213, 290,
     347,387-388)
           Once Brunner discovered his ID, he and Benjamin told
    Kucsmas that she was going with them, and they began pulling her
    toward the truck. (T.T. 214) Kucsmas initially resisted, but Brunner
    assured her that everything would be okay and that she should come
    home with them; Kucsmas ceased her resistant andgot into the truck,
    followed by Brunner and Benjamin. (T.T. 214, 291)
           Benjamin drove to an isolated and hilly area of a nearby park
    where Kucsmas was ordered out of the truck. (T.T. 294, 394) Brunner
   and Benjamin again angrily confronted Kucsmas about the money and
   repayment, threatening to throw her over the hill. (T.T. 295-296, 397-
   401) Kucsmas was scared and crying, assuring the men that she would
   pay the money back. (T.T. 296-297) Kucsmas was ordered back into
   the truck whereupon they drove back to their apartment building.
  (T.T.298-299)
          Once there Brown was ordered by Brunner to take Kucsmas by
  the hand to prevent her from fleeing, and Kucsmas was escorted to
  Brunner's apartment by Brunner, Benjamin, and Brown. (T.T. 301)
  Once in the living room, Benjamin behan yelling at Kucsmas about
  the money and made her take off her clothes whereupon he retrieved
  $60 from her "private area", which in tum was given to Brunner. (T.T.
 413, 425-427) Brunner, now armed with a handgun, and Benjamin
  begin to beat and yell at Kucsmas. (T.T. 304,415, 845-849) During
 this time Brunner cocked the weapon and fired a shot into the floor of
 the apartment. (T.T. 304, 415) Brown retreated to her bedroom, but
 heard Brunner and Benjamin continue the beating, as well as Kucsmas
 pleading with the two men to stop. (T.T. 306, 845-848)
          Eventually the beating stopped and Kucsmas was ordered to go
 to the bathroom and shower. (T.T. 307, 849) While Kucsmas was in
the bathroom Brunner and Benjamin had a discussion regarding the
serious nature of the injuries they had inflicted on her, and they came
to an agreement that she could not leave the apartment because of
that. (T. T. 310, 418, 852)
         When Kucsmas finished showering Brown witnessed Brunner
go into the bathroom and help Kucsmas out of the shower. (T. T. 311)
As Kucsmas began to walk out of the bathroom Brown saw Brunner
put his .arm around her neck from behind, and Benjamin approach her
from the front. (IT. 311., .327, 855) Brown thenput her head under
the covers of her bed, but she heard Kucsmas struggling and gasping

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    for air. (T. T. 311) Kucsmas was punched in the head, which knocked
    her to the bathroom floor. As she lay there her chest was stomped on,
   and bloody foam oozed out of her mouth and nose. (TT. 855) When
   the struggling and gasping stopped, Brown heard Brunner remark to
   Benjamin, "she fought hard". (T.T. 311, 368) Brown took her head
   out from under the covers and saw Kucsmas laying motionless on the
   bathroom floor with Brunner and Benjamin standing around her (T.T.
   312) Brunner and Benjamin picked Kucsmas up and laid her on the
   floor in front of Brown's bed. (TT 313) Brown was ordered to go
  outside and make certain that no one was .around. (T.T. 313)
           Brunner went.to the basement of the building and returned with
  a roll of carpet. (TT 558-560, 857-862) Brunner and Benjamin rolled
  Kucsmas' body in the carpet and placed her in the back of the pick-up
. truck. (T.T. 865-868) At Benjamin's suggestion they then drove to
  Hunter Park in Wilkinsburg Borough Where the body was left in a
  weeded/wooded area. (T.T. 868) Benjamin was familiar with this area
  because he grew up nearby.
          When Brunner returned to his apartment he awakened Brown
  and told her that .they had left Kucsmas behind a dumpster, and he
 planned to go back and bum the body. (T.T. 317, 319) Brown was
 instructed to clean up some blood spots on the living room carpet, as
 well as some pieces of cut carpet that Kucsmas' body had been
 wrapped in. (T.T 317-318,419-420) Brunner instructed Brown that if
 she were ever questioned by the police, that she was to acknowledge
 the confrontation with Kucsmas on the street and the return with her
 to the apartment building, but to inform the police that upon their
 return they went their separate ways and Kucsmas never went into
 Brunner's apartment. (T T. 324)
         On July 23, 2009 a tree cutting crew was dumping wood chips
 at Hunter Park, when they discovered the carpet and partially
 decomposed body of Amy Kucsmas dumped by Brunner and
 Benjamin eleven (II) days earlier. CTT. 71-73, 89, 96)
         The medical examiner was not able to determine the exact
cause of death due to the advanced stage of decomposition, however
there were multiple areas of blunt force trauma to the body including
broken ribs and head trauma. (T.T. 140-142) Given all the
circumstances presented, including the trauma to the body and where
and how the body was found, the pathologist concluded that the
manner·of death was homicide. (T.T. 141-146, 167)


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 Superior Court Memorandum Opinion, January 18, 20l3, pp. 1-4, quoting Trial

 Court Opinion, 1120112, at 3-8.

                                    DISCUSSION

       An appellate court's role in reviewing PCRA appeals is "limited to

 determining whether the findings of the PCRA court are supported by the record

and free from legal error." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009). The scope of review is .limited to the PCRA court's findings and the

evidence of record, which are to be viewed in the light most favorable to the

Commonwealth. Commonwealth v. Koehler, 36 A.3d 121, l31 (Pa. 2012). A denial

will not be disturbed unless it is found that the certified record does not support the

PCRA court's findings. Commonwealth v. Gandy, 38 A.3d 899, 902 Pa. Super.

2012). The law surrounding dismissing a PCRA Petition without a hearing has

been stated thusly:

      The PCRA court has discretion to dismiss a petition without a
      hearing when the court is satisfied that there are no genuine
      issues concerning any material fact, the defendant is not entitled
     to post-conviction collateral relief, and no legitimate purpose
     would be served by further proceedings. To obtain reversal of a
     PCRA court's decision to dismiss a petition without a hearing,
     an appellant must show that he raised a genuine issue of fact
     which, if resolved in his favor, would have entitled him to
     relief, or that the court otherwise abused its discretion in
     denying a hearing. We stress that an evidentiary hearing is not
     meant to function as a fishing expedition for any possible
     evidence that may support some speculative claim of
     ineffecti venes s.


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  Commonwealth v. Roney, 79 A.3d 595, 604-605 (Pa. 2013) (citations and

 quotations omitted).

                                               1.

           Appellant first claims that the PCRA Court erred in denying his claim of

 ineffective assistance of counsel for failing to call character witnesses based on the

 argument that their testimony would have raised a reasonable doubt as to

 culpability and the degree of homicide charged. This claim is without merit.

       The standard of review for ineffective assistance of counsel claims is well

settled:

      In evaluating claims of ineffective assistance of counsel, we
      presume that counsel is effective. To overcome the presumption
      of effectiveness, Appellant must establish three factors: first
      that the underlying claim has arguable merit; second, that
      counsel had no reasonable basis for his action or inaction; and
      third, that Appellant was prejudiced. Counsel's assistance is
      deemed constitutionally effective once this Court determines
      that the defendant has not established anyone of the prongs of
      the ineffecti veness test.

Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (citations and

quotations omitted).. When the claim of ineffective assistance of counsel is based

on the failure to call a potential witness, petitioner must establish 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


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  witness was so prejudicial as to have denied the defendant a fair trial."

  Commonwealth v. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012). Accordingly,

  "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." Sneed, 45 A.3d at 1109.

         Here, the jury heard substantial evidence connecting Appellant to the

 kidnapping and murder of Amy Kucsmas, as well as the subsequent attempted

 cover-up. This evidence included the testimony of Appellant and Appellant's

 girlfriend. While Appellant had several witnesses available to testify to his own

 good character and the bad character of his co-defendant, none of these witnesses

 would have negated the substantial evidence implicating Appellant. Appellant

failed to show that the witnesses would have been helpful to the defense given the

substantial amount of evidence against Appellant and the heinous nature of the

cnmes.

      Upon reviewing the record, the PCRA Court found that there were no

genuine issues of material fact, that Petitioner was not entitled to post-conviction

relief as he had failed to establish prejudice, and no legitimate purpose would be

served by a further proceeding. The PCRA Court properly dismissed Appellant's

PCRA claim without a hearing. See Commonwealth v. Pire/a, 726 A.2d 1026, 1035

{Pa. 1999) (defendant failed to establish prejudice for counsel's failure to call


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 character witnesses during the sentencing hearing, and evidence of a troubled past

 might be perceived as an attempt to trivialize the gravity of the crime).

        Appellant's claim is without merit.

                                           II.

       Appellant alleges in his second claim that the PCRA Court erred in denying

 his claim of ineffective assistance of counsel based on the argument that

Appellant's waiver of his right to call character witnesses was involuntary and

unintelligent. This claim is without merit.

       Defendants have the right to call character witnesses in their defense at trial,

but may choose to waive that right as follows:

      Where the defendant chooses not to call character witnesses, the
      trial judge shall ascertain from the defendant whether this is a
      knowing, voluntary and intelligent waiver. A waiver colloquy,
      on the record, should be conducted by defense counsel, but may
      be supplemented by the Court andlor the Attorney for the
      Commonwealth. In a jury trial, the colloquy shall be held
      outside the presence of the jury before the defense rests its case.

All. C. R. Crill. P. 602.2. Appellant's claim that he involuntarily waived his right

to call character witnesses, couched in an ineffective assistance of counsel claim, is

examined as follows:

      When a presumptively-valid waiver is collaterally attacked
      under the guise of ineffectiveness of counsel, it must be
      analyzed like any other ineffectiveness claim. Such an inquiry
      is not resolved by the mere absence of an oral waiver colloquy;
      instead, the analysis must focus on the totality of relevant
      circumstances. Those circumstances include the defendant's
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        knowledge of and experience with jury trials, his explicit
        written waiver (if any), and the content of relevant off-the-
        record discussions counsel had with his client.

 Commonwealth v. Birdsong, 24 A.3d 319, 339 (Pa. 2011) (in the context of a jury

 waiver colloquy claim). In order to prevail, Appellant must demonstrate that: (1)

 he did not understand the right that he was waiving; (2) that counsel caused the

 failure to understand; and, (3) that but for counsel's ineffectiveness, Appellant

 would not have waived that right. Birdsong, 24 A.3d at 340.

       Appellant's claim here is based on the assertion that counsel's ineffective

assistance of counsel in failing to call character witnesses caused Appellant to

involuntarily waive his right to call character witnesses. As noted above, counsel

was nOLineffective for failing to call character witnesses. See supra pp. 9-10.

Further, Appellant's claim that his waiver was involuntary is belied by the record.

Following the close of the Commonwealth's case, the Trial Court conducted a

thorough oral colloquy with Appellant and his co-defendant regarding their rights

to testify and to call character witnesses. (T.T. 665-671). Appellant acknowledged

that he understood his right to call character witnesses, that he had discussed if

with his attorney, and that it was Appellant's decision alone whether to call

character witnesses. (T. T. 669-670). Thus, Appellant stated under oath that it was

his decision not to call character witnesses, and that he had not been threatened or

promised anything in exchange for making that decision. (T.T. 670-671). Trial


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 counsel William Brennan further stated that he believed Appellant was making a

 knowing, intelligent, voluntary, and fully-informed decision to not call character

 witnesses. (T.T. 671). Given the oral colloquy, the demeanor of Appellant, and his

 concurrent decision to testify in his own defense, the Trial Court found that

Appellant had made a knowing, voluntary, intelligent, and fully informed decision

not to call character witnesses. The PCRA Court properly denied Appellant'S claim

that his waiver was involuntary. See Birdsong, 24 A.3d at 341 (defendant failed to

establish that ineffective assistance of counsel caused him to waive his right to a

jury based on a bald allegation of prejudice).

       Appellant'S claim is without merit.

                          --'eeNCLUSION

       Based upon the foregoing, the judgment of sentence imposed by this Court

should be affirmed.

                                                 By the Court,




§ier;4t6~;L/'J.I 7.0 11
Date




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