J-S04024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :    IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                                                 :
               v.                                :
                                                 :
                                                 :
    CHARLES ALBERT TRIMMER, JR.                  :
                                                 :
                      Appellant                  :    No. 1498 MDA 2017

                 Appeal from the PCRA Order September 5, 2017
    In the Court of Common Pleas of Mifflin County Criminal Division at No(s):
                            CP-44-CR-0000461-2010


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                     FILED APRIL 25, 2018

        Appellant, Charles Albert Trimmer, Jr., appeals from the September 5,

2017 Order denying his first Petition for relief filed pursuant to the Post

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

        On July 31, 2010, Appellant shot and killed Darren Parys. Appellant

claimed that Parys attacked him with pepper spray while Appellant was

operating a backhoe on Appellant’s property in rural Mifflin County.

Appellant alleged that he feared for his life and, in his incapacitated state,

fired his 12-gauge shotgun.

        On   September      27,   2010,    the       Commonwealth   filed   a   Criminal

Information charging Appellant with Criminal Homicide.1


____________________________________________


1   18 Pa.C.S. § 2501(a).
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       Appellant, represented by Attorney Brian Perry, asserted at trial that

he shot Parys in self-defense.        Relevant to the instant appeal, the

Commonwealth presented the testimony of Dr. Gordon Carl Handte, a

forensic pathologist.   Dr. Handte testified that the decedent sustained one

gunshot wound to his back and one to his neck. N.T., 9/12/11, at 185. Dr.

Handte opined that “[b]ecause of the large amount of hemorrhage

associated with the wound to the back, that [injury] occurred first while

[Parys] was still alive[.]”   Id. at 187.   Dr. Handte testified in great detail

about the extensiveness of the injuries caused to the victim by the gunshot

wound to his back. Id. at 188-93. He concluded that Parys could not have

survived this first gunshot wound. Id. at 193.

       Dr. Handte further testified that, based upon the absence of blood

from the tissue around the neck wound he “cannot be certain that [Parys]

was absolutely still alive and viable[]” at the time of the second shot to the

victim’s neck. Id. at 198. Dr. Handte testified that the immediate cause of

death was exsanguinating hemorrhaging of the chest.           Id. at 203.   Dr.

Handte listed focal hemorrhage of the abdomen and shotgun wound of neck

as first and second contributory factors, respectively. Id.

       When asked by the Commonwealth whether he had an opinion as to

how far from the victim Appellant had been when he shot him in the neck,

Dr. Handte testified that, although it was difficult to make an exact

determination, “it would be very close. One, two, three feet . . . .” Id. at

202.   Dr. Handte also testified that the decedent’s neck wound could “be

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consistent with a man standing over him to his left side aiming at him

downward to his throat.”          Id.    Appellant’s counsel did not object to Dr.

Handte’s testimony.

       The jury rejected Appellant’s self-defense justification and convicted

him of First-Degree Murder.             The trial court sentenced Appellant to life

imprisonment. On October 11, 2011, Appellant filed a direct appeal from his

Judgment of Sentence challenging the sufficiency of the Commonwealth’s

evidence.       This    Court    affirmed      on   September   14,   2012.    See

Commonwealth v. Trimmer, No. 1793 MDA 2011 (Pa. Super. filed

September 14, 2012) (unpublished memorandum). Appellant did not file a

Petition for Allowance of Appeal with our Supreme Court. His Judgment of

Sentence, thus, became final on October 15, 2012.2

       Appellant filed the instant PCRA Petition on October 10, 2013, and a

supplemental PCRA Petition on August 8, 2014.             In his Petition, Appellant

claimed that his trial counsel was ineffective for, inter alia, failing to “object

to the pathologist’s testimony regarding the shotgun pellets’ trajectory and

____________________________________________


2 See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at the
conclusion of direct review or the expiration of time for seeking the review);
U.S.Sup.Ct.R. 13(1) (“A petition for a writ of certiorari seeking review of a
judgment of a lower state court that is subject to discretionary review by the
state court of last resort is timely when it is filed with the Clerk within 90
days after entry of the order denying discretionary review.”);
Commonwealth v. Miller, 102 A.3d 988, 993 (Pa. Super. 2014). The 30th
day after the conclusion of the direct review period fell on Sunday, October
14, 2012.



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wound placement, and general ballistics testimony.”          Supplemental PCRA

Petition, 8/8/14, at 14. Appellant asserted “[n]o reasonable attorney would

have allowed a witness who was being presented to the jury as an expert in

the limited area of pathology to [ ] provide an expert opinion on another,

integral area of the case in which the witness was not qualified to provide

testimony.” Id. at 15 (emphasis in original).

       The PCRA court held a hearing on Appellant’s Petition on April 3,

2017.3     On September 5, 2017, the court denied Appellant’s Petition,

concluding that Appellant did not suffer prejudice as a result of his counsel’s

failure to object to the scope of Dr. Handte’s testimony. This timely appeal

followed. Appellant complied with the PCRA court’s Order to file a Pa.R.A.P.

1925(b) Statement.         The court did not file a separate Pa.R.A.P. 1925(a)

Opinion.

       Appellant raises the following issue on appeal:

       Whether in a First Degree Murder Trial,        [c]ounsel’s failure to
       object to opinion testimony offered by        the Commonwealth’s
       [p]athologist which exceeded the scope        of his expertise (and
       went to the ultimate issue) was ineffective   assistance of counsel?

Appellant’s Brief at 2.
____________________________________________


3 In the interim, the PCRA judge recused himself; Appellant’s counsel filed a
Motion to Transfer Evidence for Expert Testing and a Motion for Funds for
Experts, both of which the PCRA court granted; Appellant’s counsel sought
leave to withdraw, which the court granted, and appointed new counsel;
Appellant’s new counsel filed a Motion for Turnover of Firearm Examiner’s
Bench Notes and Mossberg Shotgun to [Appellant’s Expert], which the court
granted.



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     We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.     Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). “The 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 prevailing

party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014) (citation omitted).

     Appellant alleges that his trial counsel provided ineffective assistance.

To obtain PCRA relief on that basis, a petitioner must prove by a

preponderance      of   the   evidence    that   the   conviction   resulted   from

“[i]neffective assistance 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. § 9543(a)(2)(ii).     In analyzing claims of ineffective assistance of

counsel, we presume that trial counsel was effective unless the PCRA

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177 (Pa. 1999).

     In order to succeed on a claim of ineffective assistance of counsel,

Appellant must demonstrate (1) that the underlying claim is of arguable

merit; (2) that counsel’s performance lacked a reasonable basis; and (3)

that the ineffectiveness of counsel resulted in the appellant suffering

prejudice. Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). To

establish the prejudice prong, the petitioner must show that there is a

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reasonable probability that the outcome of the proceedings would have been

different but for counsel’s ineffectiveness. Commonwealth v. Rollins, 738

A.2d 435, 441 (Pa. 1999).         Appellant bears the burden of proving each of

these elements, and his “failure to satisfy any prong of the ineffectiveness

test requires rejection of the claim of ineffectiveness.” Commonwealth v.

Daniels, 963 A.2d 409, 419 (Pa. 2009).

         Here, the PCRA court concluded that Appellant had raised a claim of

arguable merit, and that his trial counsel’s performance lacked a reasonable

basis.     See PCRA Ct. Op., 9/5/17, at 3-4.             However, the court also

concluded that Appellant had not demonstrated that there is a reasonable

probability that the outcome of the trial would have been different if his

counsel had objected.       Id.   The court found that defense counsel’s cross-

examination      of   Dr.   Handte   “was   sufficient   to   cast   doubt   on   the

Commonwealth’s theory[.]” Id. The court explained its rationale as follows:

         After Dr. Handte testified as to the distance of [Appellant’s] gun
         in relation to the victim’s neck wound, he was cross[-]examined
         by Attorney Perry. During cross[-]examination, Attorney Perry
         elicited from Dr. Handte that it was possible that the distance
         between [Appellant] and [the] victim during the encounter was
         closer than previously stated, that it was possible for the victim
         to turn and approach [Appellant] for several seconds following
         the first shot before his drop in blood pressure would have
         caused incapacitation, that there was no wad or hole found in
         the ground under the victim, and that no gunshot residue was
         found on the victim’s neck. These admissions by Dr. Handte on
         cross[-]examination are consistent with [Appellant’s] theory of
         self-defense and that the second shot occurred while the victim
         was still standing.

PCRA Ct. Op. at 5.


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      We agree with the trial court’s conclusion that Appellant failed to

demonstrate that there is a reasonable probability that the outcome of

Appellant’s trial would have been different had trial counsel objected to the

scope of Dr. Handte’s testimony. The court aptly noted that Attorney Perry

elicited testimony from Dr. Handte on cross-examination that could have

supported Appellant’s self-defense claim.

      We also observe that the PCRA court’s conclusion that Appellant

suffered no prejudice as a result of his counsel’s inaction is supported by Dr.

Handte’s testimony on direct examination that: (1) Appellant shot the victim

first in the back and then in the neck; (2) the victim’s cause of death was

exsanguinating hemorrhaging of the chest caused by the gunshot wound to

the back; and (3) it is unlikely that the victim could have survived the

gunshot wound to his back. It is unlikely that Dr. Handte’s testimony about

the particulars of the wound to the victim’s neck controlled the outcome of

Appellant’s trial. For this reason, too, it is improbable that, had Appellant’s

counsel objected to the scope of Dr. Handte’s testimony, the outcome of

Appellant’s trial would have been different.

      Accordingly, we conclude that the record supports the PCRA court’s

findings and the court did not err in dismissing Appellant’s PCRA Petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/25/18




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