J-S11027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 MICHAEL ULYSSES PETERSON                  :
                                           :
                   Appellant               :       No. 1051 WDA 2019

            Appeal from the PCRA Order Entered June 3, 2019
 In the Court of Common Pleas of Westmoreland County Criminal Division
                   at No(s): CP-65-CR-0004070-2014

BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                                 FILED MAY 07, 2020

     Michael Ulysses Peterson (Appellant) appeals from the order dismissing

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

     A prior panel of this Court recounted the pertinent facts of this case:

        On February 5, 2014, at approximately 3:00 p.m., Appellant
     asked his friend, Garrin Ullrich-Stiffler, to drive him, in Appellant’s
     van, to a Sheetz gas station. At the Sheetz, Appellant met his
     cousin, Sam Christner, and sold him five bags of heroin for
     $50.00. Appellant also sold Ullrich-Stiffler three bags of heroin.
     Each of the bags was branded with either “Rich Gang,” “Tuna
     Fish,” or “ESPN.” (N.T. Trial, 1/12/16, at 129).

                                 *     *       *

        At approximately 5:00 p.m., Sam Christner’s girlfriend, Dee
     Ann Pruett, arrived at the residence she shared with him, and
     found him sitting unconscious on the bathroom floor. Christner
     appeared gray in color, his eyes were closed, and a syringe was
     on the floor beside him. Pruett called 911, and Christner was
     transported to the hospital. Efforts to revive Christner were
     unsuccessful, and he was pronounced dead at 5:31 p.m. Two
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      bags of heroin stamped “Rich Gang” were found in his front pants
      pocket. (N.T. Trial, 1/13/16, at 356). Toxicology test results later
      showed heroin, morphine (a breakdown product of heroin),
      codeine (another breakdown product), Benadryl, and alcohol in
      Christner’s system, with high levels of heroin and morphine.

                                 *      *     *

         On February 6, 2014, police questioned Ullrich-Stiffler about
      the events of the previous day. Ullrich-Stiffler initially stated that
      he and Appellant went to Sheetz to find out about a construction
      job, and that he was not aware of what transpired between
      Appellant and Christner. After police returned to Ullrich-Stiffler’s
      home with surveillance video from Sheetz, he admitted that he
      was driving Appellant around to conduct drug transactions, and
      that Appellant sold drugs to Christner.

          Police interviewed Appellant later that day and gave him
      Miranda warnings. Appellant admitted that the nineteen bags of
      heroin and the cocaine found on his person belonged to him.
      Appellant indicated that the needles, spoon, string, and bag
      marked “Paradise Island” belonged to Ullrich-Stiffler, and he
      explained that, in exchange for heroin, Ullrich-Stiffler sometimes
      drove him around to sell drugs. Appellant admitted that he sold
      Christner five bags of heroin stamped “Rich Gang,” “Tuna Fish,”
      or “ESPN,” the previous day for $50.00 at the Sheetz, and that
      Ullrich-Stiffler witnessed the transaction. (N.T. Trial, 1/13/16, at
      423; see id. at 421-23).

Commonwealth v. Peterson, 1537 EDA 2016 at 2-4 (Pa. Super. Apr. 5,

2017) (unpublished memorandum) (footnote omitted).

      Based on these events, Appellant was charged with Count 1 –

possession with the intent to deliver a controlled substance (35 P.S. § 780-

113(a)(30)), Count 2 – criminal conspiracy (18 Pa.C.S.A. § 903(a)(1)), and

Count 3 – drug delivery resulting in death (18 Pa.C.S.A. § 2506(a)). The PCRA

Court detailed the procedural history that followed:




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        A jury trial occurred on [Appellant]’s case before this [c]ourt
     from January 11, 2016 to January 15, 2016. [Appellant] was
     found guilty on all [c]ounts. He was subsequently sentenced on
     June 2, 2016. Specifically, at Count 3, [Appellant] was sentenced
     to eight (8) to sixteen (16) years of incarceration. At Counts 1
     and 2, [Appellant] was sentenced to two (2) to four (4) years of
     incarceration concurrent to Count 3. He received credit for time
     served, and was ordered to undergo a drug and alcohol and
     trauma-based mental health evaluation. [Appellant] filed Post-
     Sentence Motions on June 9, 2016, which were denied by this
     [c]ourt on September 28, 2016.

        [Appellant] thereafter filed a [n]otice of [a]ppeal with the
     Pennsylvania Superior Court on October 7, 2016. [Appellant]
     presented the following issues on appeal:

        1. Whether the [trial court] erred in making certain
           evidentiary rulings at trial[?]

        2. Whether the [trial court] erred [in] denying [Appellant]’s
           requested jury instruction[?]

        3. Whether [] Appellant was entitled to relief for discovery
           violations by the Commonwealth[?]

        4. Whether the Commonwealth presented              sufficient
           evidence to sustain a verdict of guilty[?]

     Commonwealth v. Peterson, No. 1537 WDA 2016, at 5 (Pa.
     Super. [] 2017) (unpublished memorandum). The Pennsylvania
     Superior Court held that issues 1, 2, and 3 were waived. Id. at
     5-9. Specifically, it found that issue[s] 1 and 3 were waived
     because [Appellant] failed to properly brief them. Id. at 5-6, 8-
     9. It also found that issue 2 was waived because [Appellant] failed
     to properly object to the jury instruction that he was challenging.
     Id. at 6-7. The Pennsylvania Superior Court did, however, review
     [Appellant]’s sufficiency of the evidence claim and his judgment
     of sentence was affirmed on April 5, 2017. Id. at 15. [Appellant]
     thereafter filed a [p]etition for [a]llowance of [a]ppeal with the
     Pennsylvania Supreme Court, which was denied on August 29,
     2017.

        Subsequently, [Appellant] timely filed a pro se PCRA [p]etition
     on May 14, 2018. . . . Attorney Emily Smarto was appointed as

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     PCRA Counsel for [Appellant] and was directed to file an
     [a]mended [p]ost-[c]onviction [p]etition or Turner/Finley [n]o
     [m]erit letter within forty-five (45) days from the date in which
     she received the appointment order. See [Commonwealth v.
     Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley,
     550 A.2d 213 (Pa. Super. 1988) (en banc)]. [PCRA Counsel] filed
     an [a]mended PCRA [p]etition. In the [a]mended [p]etition,
     Attorney Smarto argues the following:

        a. [Trial] Counsel was ineffective in the direct appeal
           process. The Superior Court deemed he had waived
           three of his four arguments as they were “not
           appropriately developed.” As a result, meritorious issues
           were not reviewed by the Superior Court; counsel’s
           actions lacked any reasonable basis; and counsel’s
           actions resulted in prejudice to [Appellant]. There is a
           reasonable     probability  that,  but    for   counsel’s
           constitutionally deficient performance, the outcome of
           the proceeding would have been different.

        b. [Trial] Counsel was ineffective at trial for failing to object
           to the jury instruction relative to Drug Delivery Resulting
           in Death and/or not requesting the standard jury
           instruction 15.2506.

        c. [Trial] Counsel was ineffective at trial for failing to lodge
           objections relative to cause of death/and autopsy
           reports/and testimony of Dr. Cyril Wecht.

        4. [Trial] Counsel was ineffective for failing to strategically
           attack the causal connection necessary for guilty beyond
           a reasonable doubt.

     [Appellant]’s Amended PCRA Petition, [8/13/18], [at] 3-4
     (unnumbered). In response to PCRA Counsel’s [a]mended PCRA
     [p]etition, this [c]ourt directed that an [e]videntiary [h]earing be
     scheduled on [Appellant]’s case.

        An [e]videntiary [h]earing occurred before this [c]ourt on
     J[anuary] 24, 2019. At the conclusion of the hearing, [Appellant]
     was directed to submit a brief in support of his PCRA [petition]
     within thirty (30) days and the Commonwealth was directed to
     submit a response to [Appellant]’s brief within thirty (30) days
     thereafter. [Appellant] filed a brief in support of his PCRA

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      [p]etition on March 29, 2019. The Commonwealth field a brief in
      opposition to [Appellant]’s PCRA [p]etition on April 29, 2019.

PCRA Court Opinion and Order, 6/3/19, at 1-4 (footnote omitted).

      On June 3, 2019, the PCRA court issued an opinion and order in which

it denied Appellant’s PCRA petition. This timely appeal followed.

      On appeal, Appellant presents the following issues for review:

      I.    WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN THE
            DIRECT APPEAL PROCESS?

      II.   WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
            TO OBJECT TO THE JURY INSTRUCTION RELATIVE TO DRUG
            DELIVERY   RESULTING     IN  DEATH   AND/OR    NOT
            REQUESTING THE STANDARD JURY INSTRUCTION?

      [III]. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
             TO CONSULT WITH OR RETAIN A FORENSIC PATHOLOGIST?

Appellant’s Brief at 4.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding.” Id.

      For his first issue, although far from artfully crafted or fully developed,

Appellant argues that Trial Counsel was per se ineffective in representing

Appellant on direct appeal because this Court found three of Appellant’s four




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issues waived. Thus, Appellant asserts he is entitled to reinstatement of his

direct appeal rights.

      With respect to ineffective assistance of counsel, our Supreme Court

has explained:

          Generally, an accused asserting that he has been denied his
      constitutional right to effective assistance of counsel must
      demonstrate that counsel engaged in errors which caused him
      prejudice – i.e., that there is a reasonable probability that, but for
      counsel’s . . . errors, the result of the proceeding would have been
      different. In Pennsylvania, we have set forth . . . a three-part
      test, requiring an accused to show that (1) his underlying claim is
      of arguable merit; (2) counsel’s action or inaction lacked a
      reasonable strategic basis; and (3) but for counsel’s conduct,
      there is a reasonable probability that the outcome of the
      proceedings would have been different. However, in certain
      limited circumstances, including the actual or constructive denial
      of counsel, prejudice may be so plain that the cost of litigating the
      issue of prejudice is unjustified, and a finding of ineffective
      assistance of counsel per se is warranted.

Commonwealth v. Rosado, 150 A.3d 425, 429-30 (Pa. 2016) (quotations

and citations omitted).

      In Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999), our Supreme

Court held that counsel’s failure to file a direct appeal when an appellant

requests counsel to do so “falls within a narrow category of circumstances in

which prejudice is legally presumed.”     Id. at 571. In Commonwealth v.

Liebel, 825 A.2d 630 (Pa. 2003), the Pennsylvania Supreme Court extended

the concept of per se ineffective assistance of counsel to the failure of counsel

to file a petition for allowance of appeal to the Supreme Court when an

appellant requests counsel to do so. Subsequently, in Commonwealth v.


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Halley, 870 A.2d 795 (Pa. 2005), our Supreme Court held that counsel’s

failure to file a court-ordered statement pursuant to Pennsylvania Rule of

Appellate Procedure 1925(b), which resulted in the waiver of all claims on

appeal, was per se ineffective assistance of counsel.

      Recently, in Rosado, our Supreme Court considered a situation where

counsel presented only waived issues in the appellant’s appellate brief:

      [T]he filing of a brief that raises only waived issues . . . is . . . akin
      to failing to file documents perfecting an appeal. There is no
      meaningful difference between an attorney who fails to file a
      notice of appeal, Rule 1925(b) statement, brief, or petition for
      allowance of appeal – thereby forfeiting his client’s right to appeal
      – and one who makes all necessary filings, but does so relative
      solely to claims he has not preserved for appeal, producing the
      same end. In both situations, counsel has forfeited all meaningful
      appellate review.

Rosado, 150 A.3d at 434. Importantly, the Supreme Court explained “that

maintaining the distinction between errors causing waiver of all claims and

those failing to preserve particular claims appropriately prevented the

exceptional doctrine of ineffective assistance of counsel per se from engulfing

the general rule that an accused must demonstrate that counsel’s errors

caused him prejudice.” Id. at 431-32.

      In this case, the record does not reflect any instances of per se

ineffective assistance of counsel.       Although Appellant is correct that the

Superior Court found three of the four issues Trial Counsel presented on direct

appeal to be waived, this Court nonetheless conducted a merits review of

Appellant’s fourth issue.     Thus, Trial Counsel’s actions did not result in


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Appellant completely forfeiting his right to meaningful appellate review. See

Rosado, 150 A.3d at 434. We find no merit to Appellant’s first issue.

      Appellant’s second and third issues also invoke ineffective assistance of

counsel. Our Supreme Court has stated:

         It is well-settled that counsel is presumed to have been
      effective and that the petitioner bears the burden of proving
      counsel’s alleged ineffectiveness. Commonwealth v. Cooper,
      941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a
      petitioner must establish that: (1) the underlying substantive
      claim has arguable merit; (2) counsel did not have a reasonable
      basis for his or her act or omission; and (3) the petitioner suffered
      prejudice as a result of counsel’s deficient performance, “that is,
      a reasonable probability that but for counsel’s act or omission, the
      outcome of the proceeding would have been different.” Id. A
      PCRA petitioner must address each of these prongs on appeal.
      See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa.
      2007) (explaining that “appellants continue to bear the burden of
      pleading and proving each of the . . . elements on appeal to this
      Court”). A petitioner’s failure to satisfy any prong of this test is
      fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations

modified).

      In his second issue, Appellant argues that Trial Counsel was ineffective

for failing to object to the jury instruction on the drug delivery resulting in

death charge and for failing to request the standard instruction on the charge.

“Jury instructions are to be evaluated as a whole . . . and the trial court

possesses broad discretion in phrasing such instructions, so long as the

directions as given clearly, adequately, and accurately reflect the law[.]”

Commonwealth v. Gibson, 951 A.2d 1110, 1142 (Pa. 2008).

      The jury instruction Appellant challenges reads:

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         [Appellant] has been charged with delivering drugs that
      resulted in the death of a person. To find [Appellant] guilty of this
      offense, you must find the following elements have been proven
      beyond a reasonable doubt.

        First, that [Appellant] administered, dispensed, delivered,
      gave, prescribed, sold or distributed a controlled substance to
      Samuel Christner.

         Second, that [Appellant] did so intentionally; that is, that it was
      his conscious object to administer, dispense, deliver, give,
      prescribe, sell or distribute a controlled substance to Samuel
      Christner.

         Third, that the administration, dispense, delivery, prescription,
      s[ale], or distribution was in violation of the Controlled Substance
      Drug, Device and Cosmetic Act.

         Fourth, that Samuel Christner died as a result of using the
      substance. To find this element, you must find that, without
      having ingested the heroin, Samuel Christner would not have died.

N.T., 1/11/16 – 1/15/16, at 773-74.

      Section 2506 of the Pennsylvania Crimes Code defines the crime of drug

delivery resulting in death as follows:

      (a)   Offense defined.--A person commits a felony of the first
            degree if the person intentionally administers, dispenses,
            delivers, gives, prescribes, sells or distributes any controlled
            substance or counterfeit controlled substance in violation of
            section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.
            233, No. 64), known as The Controlled Substance, Drug,
            Device and Cosmetic Act, and another person dies as a
            result of using the substance.

18 Pa.C.S.A. § 2506(a) (footnote omitted).        As this Court has explained,

Section 2506 “consists of two principal elements:             (i) [i]ntentionally

administering,   dispensing,    delivering,   giving,   prescribing,   selling   or

distributing any controlled substance or counterfeit controlled substance and

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(ii) death caused by (‘resulting from’) the use of that drug.” Commonwealth

v. Kakhankham, 132 A.3d 986, 991-92 (Pa. Super. 2015) (citation and

footnote omitted).

      Appellant argues that Trial Counsel should have challenged the trial

court’s failure to include the language in the instruction that “but-for” the use

of the controlled substance, the victim would not have otherwise died. See

N.T., 1/11/16 – 1/15/16, at 674. We disagree. Based upon our review of the

instruction the trial court read to the jury and the authority defining the crime

of drug delivery resulting in death, we conclude that the instruction the trial

court provided “clearly, adequately, and accurately reflect[ed] the law[.]” See

Gibson, 951 A.2d at 1142. Moreover, we discern no meaningful distinction

between the instruction the trial court read to the jury and the “but for”

language Appellant asserts the court should have included in its instruction.

Therefore, Appellant’s second issue lacks arguable merit, and the PCRA court

did not err in denying this ineffective assistance of counsel claim.

      In his final issue, Appellant argues that Trial Counsel was ineffective

because he failed to retain a forensic pathologist to testify as an expert at trial

regarding Christner’s cause of death. During the Commonwealth’s case-in-

chief, Cyril H. Wecht, M.D. (Dr. Wecht), testified that Christner died from a

heroin overdose. N.T. 1/11/16 – 1/15/16, at 249. Trial Counsel offered the

testimony of a forensic toxicologist to counter Dr. Wecht’s testimony.




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Appellant asserts that only a forensic pathologist could have successfully

rebutted Dr. Wecht’s testimony.

      We conclude that the PCRA court did not err in denying this claim, as

Trial Counsel had a reasonable basis for deciding to call a forensic toxicologist,

as opposed to a forensic pathologist, at trial.       At the PCRA hearing, Trial

Counsel testified that he had a forensic toxicologist rather than a forensic

pathologist testify because a toxicologist has specific expertise concerning the

effects of opiates on the human blood system. See N.T., 1/24/19, at 13-15.

      Regarding the reasonable basis prong of the ineffective assistance of

counsel test, our Supreme Court has explained:

      Relating to the reasonable basis prong, [g]enerally, where matters
      of strategy and tactics are concerned, counsel’s assistance is
      deemed constitutionally effective if he chose a particular course
      that had some reasonable basis designed to effectuate his client’s
      interests. Courts should not deem counsel’s strategy or tactic
      unreasonable unless it can be concluded that an alternative not
      chosen offered a potential for success substantially greater than
      the course actually pursued.

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citations

omitted).

      At Appellant’s PCRA hearing, Trial Counsel gave the following testimony

regarding his strategy for rebutting Dr. Wecht’s testimony:

      Q.    [Trial Counsel], let’s talk a little bit about your trial strategy.

      A.    Yes.

      Q.    Did you hire any experts in terms of helping you with this
            case?


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     A.   Yes. As I said previously, we were really trying to attack
          the causation aspects of this because, quite frankly, the
          facts underlying the actual delivery were very strong for the
          Commonwealth and the only real defense was to say that
          the drugs that [Appellant] had provided to the victim was
          not the “but for” cause of his death. And so we were trying
          to explore whatever other possible causes there could be.
          And so I felt it would be appropriate to bring in a toxicologist
          to testify along those lines.

     Q.   And you felt toxicology would be important to your defense?

     A.   Absolutely, yes.

     Q.   Did you ever consider whether you thought you would need
          a forensic pathologist as an expert in this particular case?

     A.   Not really, because I felt that the toxicologist was the
          appropriate type of expert in this situation because they
          would have the expertise relevant above and beyond what
          a forensic pathologist may have with respect to the effects
          of certain chemicals on the human body, whereas the
          forensic pathologist, it’s more generic. In fact, during the
          trial, I have a recollection of how Dr. Wecht had testified
          about how he relies on toxicologists in forming his opinions
          as a forensic pathologist.

     Q.   So, your strategy going into the trial was to focus on
          toxicology?

     A.   Essentially, yes.

     Q.   Did it concern you in any way that you may not be able to
          combat the cause of death because you didn’t have a
          forensic pathologist?

     A.   Not really, no. Because I felt that the toxicologist would be
          able to say this is a lethal dose of whatever substance,
          above a certain amount it gets into the toxic range and what
          have you. So I felt a toxicologist was certainly competent
          to testify as to, not necessarily the cause of death of an
          individual, but could say that someone could survive having
          a certain amount of opiates in their system and there’s a


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            certain window where it becomes toxic and things of that
            nature. I just felt toxicology was sufficient.

N.T., 1/24/19, at 13-15.

      Other than bald assertions, Appellant offers no explanation or support

for how a forensic pathologist, rather than a forensic toxicologist, would have

offered Appellant a potential for success substantially greater than the course

Trial Counsel pursued. See Koehler, 36 A.3d at 132. Therefore, the record

reflects that Trial Counsel provided the PCRA court with a reasonable basis for

his decision to have a forensic toxicologist rebut the testimony of Dr. Wecht,

and Appellant provides no basis for us to conclude otherwise. Accordingly,

the PCRA court did not err in denying this ineffective assistance of counsel

claim.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2020




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