J-A03007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DONALD EUGENE WINFREE

                            Appellant                 No. 1293 MDA 2014


                   Appeal from the Order Entered July 7, 2014
              In the Court of Common Pleas of Huntingdon County
              Criminal Division at No(s): CP-31-CR-0000431-2010


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                              FILED MARCH 16, 2015

        Appellant, Donald Eugene Winfree, appeals from the July 7, 2014

order dismissing his first petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        On March 16, 2011, a jury convicted Appellant of simple assault. 1 A

prior panel of this Court summarized the relevant trial testimony as follows.

                     Commonwealth witness Dwayne Smith testified
              as follows. On July 24, 2010, he was at The County
              Line Inn, a local bar in Mount Union, Pennsylvania,
              with his wife, Paula. The couple had been separated
              … at that time. Appellant, Mrs. Smith’s boyfriend,
              was also present at the restaurant.       Sometime
              before 2:00 a.m., the Smiths left the bar together.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.S.C.S. § 2701(a)(1).
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          Mr. Smith stated that “as we was leaving,” Appellant
          “was yelling at” Mrs. Smith about a $200[.00] debt
          that she owed him. When the Smiths left the bar,
          they went to a local convenience store and then to
          Mrs. Smith’s apartment in Hartman Village, Mount
          Union. The front of the apartment had two doors
          leading to the inside, an exterior door consisting of a
          metal-framed screen door and an interior door that
          opened into the apartment. The screen door was
          locked.

                Around 2:00 a.m., approximately fifteen
          minutes after the Smiths reached the apartment,
          Appellant arrived and began “beating on her door
          and asking about the money she owed.” Mrs. Smith
          instructed her husband not to open the door.
          Appellant continued to shout and swear outside the
          apartment and to pound the door.

                 After listening to Appellant for ten minutes, Mr.
          Smith opened the interior door, but the screen door
          remained closed and locked. He intended to ask
          Appellant to return the following day for his money.
          At that point, Appellant said, “[Y]ou give me my F-in’
          money,” and Mr. Smith responded, “I don’t owe you
          no money.” Mr. Smith stated that as soon as the
          interior door was ajar, Appellant “ripped the screen
          door [open] and come rushing in.”              Appellant
          slammed into Mr. Smith and tackled him. As a result
          of that action, both men were thrown to the floor
          and began to engage in a physical fight. During the
          fight, Appellant struck Mr. Smith.           Mr. Smith
          punched Appellant in return because he was
          “protecting [him]self.”

                 During cross-examination, Mr. Smith denied
          confronting Appellant or leaving the apartment. Mr.
          Smith repeated that as soon as he opened the
          interior door, Appellant “come flying through the
          [screen] door after he ripped it open, tackled me.
          We went down and rolled around a little bit.” When
          Appellant came running into the apartment and
          tackled Mr. Smith, the victim was in fear of serious
          bodily harm from Appellant. In the ensuing fight,

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          Appellant suffered wounds to a rib and a broken eye
          socket, but Mr. Smith justified his response to the
          attack by explaining that Appellant kept trying to
          assault him. The witness delineated, “[h]e just kept
          coming and I just kept defending myself.”        The
          witness posed, “[w]hat do you want me to do? I’m
          not going to stand there and let him hurt me. It’s
          either he gets hurt or I get hurt.      I protected
          myself.”   At some point, Appellant said, “I had
          enough,” and the fight ceased. Mr. Smith insisted,
          “[w]hen Appellant stopped coming, I stopped hitting
          him. When he said he had enough, I even helped
          him lay down on the couch because he was feeling
          bad.

                Mrs. Smith, who was still Appellant’s girlfriend
          at the time of the trial, confirmed that she left The
          County Line Inn in the early morning hours of July
          24, 2010, with Mr. Smith, he drove her to her
          apartment, and Appellant arrived soon thereafter
          and began to knock continually on the front door.
          Mrs. Smith also acknowledged that Appellant ripped
          open the locked screen door after Mr. Smith opened
          the interior door. She maintained that she did not
          know what occurred after Appellant forcibly opened
          the locked screen door and only observed them
          standing and then fighting on the floor. While Mrs.
          Smith insisted at trial that she did not see Appellant
          tackle Mr. Smith, she was given a copy of a written
          statement that she gave to Mount Union police the
          day after the incident. After reviewing the statement
          Mrs. Smith admitted telling police that Appellant
          “body slammed Dwayne [Smith].”

                Based on the Commonwealth evidence, a jury
          convicted Appellant of simple assault—attempt to
          cause the victim serious bodily injury. It rejected a
          claim of self-defense after being given a jury
          instruction on that concept due to Appellant’s
          description of the events of July 24, 2010.




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Commonwealth v. Winfree, 50 A.3d 236 (Pa. Super. 2012) (unpublished

memorandum at 2-4) (citations omitted), appeal denied, 57 A.3d 70 (Pa.

2012).

       On June 17, 2011, the trial court sentenced Appellant to three to 12

months’ imprisonment.2 Sentencing Order, 6/17/11, at 1. On May 8, 2012,

this Court affirmed Appellant’s judgment of sentence. Winfree, supra at 8.

On November 21, 2012, the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Winfree, 57 A.3d 70

(Pa. 2012). Thereafter, on December 27, 2012, Appellant filed a timely pro

se PCRA petition.      The PCRA court appointed counsel on January 7, 2013,

and counsel filed an amended PCRA petition on March 4, 2013. The PCRA

court held an evidentiary hearing on March 7, 2014 and dismissed




____________________________________________


2
  On August 6, 2014 the PCRA court entered an order staying execution of
Appellant’s sentence pending disposition of the instant appeal. Trial Court
Order, 8/6/14. See generally, e.g., 42 Pa.C.S.A. § 9543(a)(1)(i) (stating
that to be eligible for PCRA relief, the petitioner must show that he or she is
“currently serving a sentence of imprisonment, probation or parole[]”).




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Appellant’s petition on July 7, 2014.3 On July 29, 2014, Appellant filed the

instant timely appeal.4

       On appeal, Appellant raises the following issues for our review.

                    [W]hether [Appellant’s] counsel at trial was
              ineffective:

              1.    When he failed to present evidence and
              argument, and request an instruction to the jury,
              regarding the lesser offense of [s]imple [a]ssault by
              [m]utual [c]onsent[?]

              2. When he failed to adequately present evidence
              and argument regarding the element of intent[?]

              3. When he failed to present evidence regarding the
              alleged victim’s prior history of violence[?]

Appellant’s Brief at 2.

       When reviewing PCRA matters, we are mindful of the following

principles.

              We consider the record in the light most favorable to
              the prevailing party at the PCRA level. This review is
____________________________________________


3
  On May 15, 2014, the PCRA court granted appointed counsel’s motion to
withdraw her appearance based on her assertion that continued
representation would impose a financial hardship.     Trial Court Order,
5/15/14; see Motion to Withdraw Appearance, 4/30/14, at 1-3
(unnumbered).      The PCRA court appointed new counsel to represent
Appellant on July 9, 2014. Trial Court Order, 7/9/14.
4
   Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Specifically, the trial court adopted its reasoning
from its July 7, 2014 opinion, dismissing Appellant’s PCRA petition, for its
resolution of Appellant’s first issue on appeal. Trial Court Opinion, 8/28/14,
at 2. The trial court then addressed Appellant’s remaining issues. Id. at 2-
3.



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            limited to the evidence of record and the factual
            findings of the PCRA court.         We afford great
            deference to the factual findings of the PCRA court
            and will not disturb those findings unless they have
            no support in the record. Accordingly, as long as a
            PCRA court’s ruling is free of legal error and is
            supported by record evidence, we will not disturb its
            ruling. Nonetheless, where the issue pertains to a
            question of law, our standard of review is de novo
            and our scope of review is plenary.

Commonwealth v. Pander, 100 A.3d 626, 630 (Pa. Super. 2014) (en

banc) (internal quotation marks and citation omitted), appeal denied, ---

A.3d ---, 502 EAL 2014 (Pa. 2015). Further, in order to be eligible for PCRA

relief, a petitioner must plead and prove by a preponderance of the evidence

that his conviction or sentence arose from one or more of the errors listed at

Section 9543(a)(2) of the PCRA.       42 Pa.C.S.A. § 9543(a)(2).      One such

error, which provides a potential avenue for relief, is ineffective assistance of

counsel. Id. § 9543(a)(2)(ii). The issues raised must be neither previously

litigated nor waived. Id. § 9543(a)(3).

      Additionally, “[i]n order to obtain relief on a claim of ineffectiveness, a

PCRA petitioner must satisfy the performance and prejudice test set forth in

Strickland v. Washington, 466 U.S. 668 (1984).”            Commonwealth v.

Reid, 99 A.3d 427, 436 (Pa. 2014).          In Pennsylvania, adherence to the

Strickland test requires a PCRA petitioner to establish three prongs.        Id.

Specifically, the petitioner must demonstrate “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s actions or

failure to act; and (3) the petitioner suffered prejudice as a result of

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counsel’s error[.]”         Id.     We presume counsel has rendered effective

assistance. Commonwealth v. Rivera, --- A.3d ---, 2014 WL 7404541, at

*5 (Pa. 2014).       Moreover, “[t]he reasonableness of counsel’s conduct is

objectively measured.”            Commonwealth v. Daniels, 104 A.3d 267, 281

(Pa. 2014) (citation omitted). We also observe “review of counsel’s conduct

cannot indulge the distorting effects of hindsight, but instead, counsel’s

performance must be judged in light of the circumstances as they would

have appeared to counsel at the time.” Commonwealth v. Hill, 104 A.3d

1220, 1240 (Pa. 2014) (citations and internal quotation marks omitted).

With regard to the third prong, “prejudice [is] measured by whether there is

a reasonable probability that the result of the proceeding would be

different.” Daniels, supra. “[I]f a claim fails under any required element

of the Strickland test, the court may dismiss the claim on that basis.”

Commonwealth           v.    Bomar,      104     A.3d    1179,   1188   (Pa.   2014).

“Additionally, counsel cannot be deemed ineffective for failure to raise a

meritless claim.” Rivera, supra. (citation omitted).

        Instantly, Appellant challenges trial counsel’s effectiveness on three

separate bases.        Appellant’s Brief at 2.          In Appellant’s first claim of

ineffectiveness, Appellant asserts that trial counsel was ineffective for failing

to pursue a defense strategy of simple assault by mutual consent5, a lesser-

____________________________________________


5
    18 Pa.S.C.S. § 2701(b).



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graded offense, and by failing to seek a jury instruction on the same. Id. at

7.   Appellant submits that “[a] fight involving mutual aggression is []

punished less severely than a one-sided assault[,]” and in the instant case,

“the evidence overwhelmingly supports a conclusion that the incident was a

mutual fight, rather than a one-sided attack.”         Id. at 8.   In its opinion

dismissing Appellant’s PCRA petition, the PCRA court explained its rationale

as follows.

                    In this case[,] there was no evidence that
              suggested both parties agreed to fight. Further, the
              evidence, which the jury elected to believe, was that
              [Appellant] was the aggressor. Finally, it is clear
              that [Appellant] at all times has denied assaulting
              [Mr.] Smith.

                     Accordingly, since there was no evidence that
              the assault began by mutual consent, an instruction
              on the subject matter of Section 2701(b)(1) would
              have been error. Therefore, trial counsel was not
              ineffective for not requesting that instruction or in
              failing to object to the failure of th[e trial c]ourt to
              instruct on the subject.

PCRA Court Opinion, 7/9/14, at 14-15. We conclude the record supports the

trial court’s ruling. See Pander, supra.

      At the hearing on Appellant’s PCRA petition, his trial counsel, Michael

S. Gingerich, Esquire (Attorney Gingerich) testified regarding the defense

strategy as follows.

              [Commonwealth]:

              Q. … What was the general trial strategy or your
              difference in defending this case?


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              [Attorney Gingerich]:

              A. Well, the general theme which we discussed and
              we were proceeding under we were seeking a not
              guilty verdict in this case.      [Appellant] certainly
              firmly I’m sure believes to this day that he was – did
              not assault Mr. Smith and Mr. Smith obviously from
              the injuries that [Appellant] sustained had clearly
              assaulted [Appellant].     We were looking for an
              acquittal. Like I said, we turned down pleas to – I
              think to [third-degree misdemeanor] and to
              summary harassment.[6] I mean [Appellant] wanted
              vindication is why the case was going to trial.

                                               …

              [The PCRA court]:

              Q. You had rejected a plea to a summary offense?

              A. Absolutely, yes. Because [Appellant] was looking
              for vindication. He said, I did not assault this guy. I
              came to the apartment under the circumstances he
              described in his testimony and he grabbed ahold me
              of (sic) and I tried to defend myself.

                                               ...

              Q. You requested -- obviously because I gave it --
              you requested instructions on self-defense?

              A. Yes, because that was an important part of the
              defense theory. There was no doubt that there was
              contact, physical contact, between Mr. Smith and
              [Appellant]. [Appellant], I think, in his testimony
              described it as being purely defensive in nature,
              believed that was an appropriate and our best
              chance of getting an acquittal. And you always have
              to be careful arguing alternative in front of a jury.
              And again we were looking for a full acquittal, so we
____________________________________________


6
    18 Pa.C.S.A. § 2709 (a)(1).



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           weren’t interested in getting up there and admitting
           to a [third-degree misdemeanor] assault but I think
           sometimes you diminish your defense if you, you
           know, say to the jury these are the facts but if you
           look at them this way, it could be a lesser offense. …

N.T., 3/7/14, at 11-13.

     The PCRA court again asked counsel about the decision to pursue a

self-defense theory and forego a strategy based on mutual consent.

           [The PCRA court]:

           Q. Let me ask this question. Am I correct – and I’ve
           known [Appellant] for a long time – but am I correct
           that [Appellant] made it very clear to you that he
           wanted you to present a self-defense defense in this
           case?

           [Attorney Gingerich]:

           A. Again, we’re looking -- we reject pleas.     We’re
           looking for an acquittal. …

           Q. He wanted nothing to do with lesser included
           offenses, did he?

           A. No. We rejected those and pleas to those and I
           think [Appellant] probably believes to this day that
           he was the victim of this.

Id. at 28-29.

     Appellant also testified at the PCRA hearing and clarified that he was

not interested in accepting a plea to simple assault in this case. Id. at 51.

Appellant further acknowledged he was offered and rejected a plea to a

charge of harassment, for which he would be sentenced to one year of




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probation. Id.   As to his trial testimony, Appellant testified as follows at the

PCRA hearing.

            [The Commonwealth]:

            Q. And you were asked [at trial] did you punch him
            or attempt to punch him, meaning [Dwayne] Smith
            or Mr. Smith?

            [Appellant]:

            A. Yes.

            Q. And your answer if you recall?

            A. No. I made a defensive move to try to stop him
            from attacking me.

            Q. So you never threw punches?

            A. I never hit him, no.

Id. at 52. It is clear from our review of the record that both Mr. Smith and

Appellant claimed to act in self-defense, and both men testified the other

was the aggressor. The PCRA court correctly highlights that there was no

evidence this incident was by mutual consent to fight, and therefore, counsel

was not ineffective for failing to seek an instruction thereon.     Further, the

testimony from the PCRA hearing undoubtedly supports Attorney Gingerich’s

position that Appellant was seeking an acquittal in this case. See id. at 11-

13, 28-29, 51-52. Accordingly, we conclude Attorney Gingerich’s decision to

focus the defense on a self-defense theory, in light of the circumstances as

they appeared to him at the time of trial, i.e. Appellant’s rejection of a plea

to harassment and Appellant’s adamancy that he was defending himself

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against Mr. Smith’s attack, was a reasonable trial strategy. See Hill, supra.

As a result, Appellant is not entitled to relief on this issue.

       Next, Appellant claims counsel rendered ineffective assistance “for

failing to adequately present evidence and argument regarding the element

of intent.”   Appellant’s Brief at 12.      Appellant argues, “[a]lthough trial

counsel made passing mention of the element of intent in his closing

argument, he failed to adequately draw the jury’s attention to the lack of the

Commonwealth’s evidence on this issue.”          Id. at 13.       Further, Appellant

advances, “[h]ad trial counsel emphasized the lack of evidence regarding

intent, it would have provided a complete defense to [Appellant].”            Id. at

14.

      Although not specifically addressed in its opinion denying PCRA relief,

in its opinion pursuant to Rule 1925, the PCRA court responded to this

argument.

              Candidly, [the PCRA court] did not understand the
              point [Appellant’s] counsel was attempting to make.
              Appellant at all times including during his testimony
              at [the PCRA] hearing flatly denied striking the
              victim. … [Attorney] Gingerich argued his client was
              not guilty because he never struck the victim which
              in the context of a trial for simple assault is an
              argument that subsumes an argument that he
              didn’t intend to assault the victim.

PCRA Court Opinion, 8/28/14, at 2-3.

      Our review of the trial transcript reveals Attorney Gingerich indeed

argued that Appellant did not possess the requisite intent to injure Mr.


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Smith.     See N.T., 3/16/11, at 98-103.          Further, as discussed above,

Attorney Gingerich was seeking an acquittal for his client on the basis of

self-defense. He testified at the PCRA hearing, “I think if you look at [the

closing argument as a] whole, it accurately conveys to the jury that his

actions were legally excusable.”   N.T., 3/7/14, at 33.

        The record belies Appellant’s claims that Attorney Gingerich did not

dispute the Commonwealth’s evidence of intent, and it was an objectively

reasonable strategy for Attorney Gingerich to focus the defense on a theory

of self-defense. See Daniels, supra.          Therefore, under the circumstances

as they appeared at the time of trial, Attorney Gingerich cannot be said to

have rendered ineffective assistance on this basis. See Hill, supra.

        In Appellant’s final claim of ineffectiveness, he avers, “trial counsel

was ineffective for failing to present evidence regarding the alleged victim’s

prior history of violence.” Appellant’s Brief at 14. However, as to this claim,

the PCRA court correctly observes, “[t]he final issue was not raised in the

petition or addressed or argued at hearing.” PCRA Court Opinion, 8/28/14,

at 4.

        It is fundamental that “issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”         Commonwealth v.

Tejada, --- A.3d ---, 2015 WL 62931, at *7 (Pa. Super. 2015) (citations

omitted); accord Pa.R.A.P. 302(a).      Because Appellant failed to raise this




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claim in his petition for PCRA relief, this claim is waived. Commonwealth

v. Reid, 99 A.3d 470, 494 (Pa. 2014).

      Based on the foregoing, we conclude all of Appellant’s challenges of

ineffectiveness are either devoid of merit or waived. Accordingly, the PCRA

court’s July 7, 2014 order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2015




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