J-S44035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

GARY LYNN BROZIK

                         Appellant                    No. 299 WDA 2014


               Appeal from the PCRA Order January 22, 2014
              In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0001398-2010


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                           FILED DECEMBER 31, 2014

      Gary Lynn Brozik appeals from the order entered on January 22, 2014,

in the Court of Common Pleas of Fayette County, denying him relief,

following a hearing, on his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. In this timely appeal, Brozik

claims the PCRA court erred in determining plea counsel was not ineffective

for: (1) advising Brozik to enter into the plea, (2) failing to advise Brozik

about the available defense of justification, (3) failing to interview witnesses

prior to advising Brozik to plead guilty, and (4) failing to present mitigating

evidence at sentencing. After a thorough review of the certified record, the

submissions by the parties, and relevant law, we affirm.

      We recite the facts underlying the crime as stated in the criminal

complaint, which was referred to at the guilty plea hearing.
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       On 08/17/10 at approx. 0400 hrs the accused [Brozik] was
       involved in a physical altercation with Michael Ryan Haines at
       Haines’s residence [in] Georges Twp Fayette County.           The
       accused after the physical altercation left the residence with his
       fiancé Melinda Rae Boyd where they [] retrieved silver in color
       semi automatic handgun from the defendants vehicle (1995 Jeep
       Grand Cherokee Pa. Reg. HFP5307). The defendant [Brozik] and
       Boyd then returned and entered back into the residence. Boyd
       then began threatening the victim(s) with the hand gun and
       pointed the hand gun at them. The defendant then got into
       another physical altercation with the victim (Haines).        The
       defendant and Boyd then fled the scene. The defendant and
       Boyd then stopped and hid said pistol in a wooded lot behind the
       Arby’s restaurant on Morgantown Rd. South Union Twp, Fayette
       County. The defendant hid the pistol approx 6’ into the woods.
       The defendant and Boyd then went to Uniontown Hospital.

Affidavit of Probable Cause, 8/26/2010.1

       Based upon this information and the admitted fact that he had a prior

felony conviction for robbery, Brozik entered into an open guilty plea on the

charge of violating person not to possess a firearm, 18 Pa.C.S. §




____________________________________________


1
  This recitation is a condensed version of the synopsis in the Pennsylvania
State Police report dated August 17, 2010. The synopsis includes allegations
that Haines was threatened with the gun and a knife and contains the
statement, “The victim [Haines] related that accused 1 [Brozik] went to hit
him and in the process knocked the gun out of accused 2 [Boyd] hand. The
gun then went under the refrigerator.” See Incident Report, 8/17/2010, at
4. The synopsis also included Brozik’s initial denial of any knowledge of a
gun and then leading the police to where he had thrown it. Id. at 5.
Pursuant to a report from the Bureau of Alcohol, Tobacco, Firearms and
Explosives, the gun was a silver-plated, .45 caliber pistol with a 5 1/4"
barrel, manufacturer unknown with no serial number. See BATFE Report,
8/25/2010.




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6105(a)(1).2      The possession charge was based upon the fact that Brozik

took the handgun from the car and threw it into the woods, after he and

Boyd had left the scene of the altercation.

       At the guilty plea hearing, Brozik admitted to possessing the gun by

disposing of it in the woods. See N.T. Guilty Plea, 4/4/2011, at 7-8.      At the

sentencing hearing, Brozik told the court he had taken the gun from Boyd to

prevent her from harming Haines. The court asked Brozik if that meant he

wanted to withdraw his guilty plea, and Brozik said no.                See N.T.

Sentencing, 5/16/2011, at 3.           No direct appeal was taken.   Accordingly,

Brozik’s sentence became final on June 15, 2011, when the 30-day limit to

file his direct appeal expired.        Brozik filed this PCRA petition on May 16,

2011, which is within the statutorily mandated one-year time limit. See 42

Pa.C.S. § 9545(b)(1).

       Before we address the merits of Brozik’s claims, we note:

       Our standard of review of a trial court order granting or denying
       relief under the PCRA calls upon us 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. Heredia, 97 A.3d 392, 394 (Pa. Super. 2014) (citation

omitted). Additionally:
____________________________________________


2
  As part of the plea agreement, several other charges against Brozik,
including multiple counts of terroristic threats and reckless endangerment,
18 Pa.C.S. §§ 2706 and 2705, were nolle prossed.



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      To prevail on a claim of ineffective assistance of counsel, a PCRA
      petitioner must satisfy the performance and prejudice test set
      forth in Strickland v. Washington, 466 U.S. 668, 687, 104
      S.Ct. 2052, 80 L.Ed.2d 674 (1984). [Commonwealth v.]
      Sepulveda, 55 A.3d [1108] at 1117 [(Pa. 2012)]. This Court
      has described the Strickland standard as tripartite by dividing
      the performance element into two distinct components.
      Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35, 45
      (2012); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
      975 (1987). Accordingly, to prove counsel ineffective, 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 counsel's error such that there is a reasonable
      probability that the result of the proceeding would have been
      different absent such error. Sepulveda, 55 A.3d at 1117 (citing
      Pierce, 527 A.2d at 975). Counsel is presumed to have rendered
      effective assistance. Sepulveda, 55 A.3d at 1117.

      A court is not required to analyze the elements of an
      ineffectiveness claim in any particular order of priority; instead,
      if a claim fails under any necessary element of the
      ineffectiveness test, the court may proceed to that element first.
      Id. at 1117-18.; Commonwealth v. Albrecht, 554 Pa. 31, 720
      A.2d 693, 701 (1998). Finally, counsel cannot be deemed
      ineffective for failing to raise a meritless claim. Commonwealth
      v. Jones, 590 Pa. 202, 912 A.2d 268, 270 (2006).

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014).

      Brozik’s first two claims are presented together.     Essentially, Brozik

argues trial counsel was ineffective for failing to investigate and explain the

justification defense to him, and therefore was ineffective for advising him to

accept the plea agreement.

      Although Brozik informed the sentencing court that he had disarmed

Boyd to keep her from harming Haines, he now claims he was unaware that

that action could have been the basis for a justification defense.           The



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requirements for the application of justification are found at 18 Pa.C.S. §

503:

       (a) General rule.--Conduct which the actor believes to be
       necessary to avoid a harm or evil to himself or to another is
       justifiable if:

         (1) the harm or evil sought to be avoided by such conduct
         is greater than that sought to be prevented by the law
         defining the offense charged;

         (2) neither this title nor other law defining the offense
         provides exceptions or defenses dealing with the specific
         situation involved; and

         (3) a legislative purpose to exclude the justification
         claimed does not otherwise plainly appear.

18 Pa.C.S. § 503(a).

       Brozik argues that although he knew he was a convicted felon who

was not allowed to possess a firearm, the greater harm would have been to

allow his fiancé, Boyd, to continue to threaten or even shoot, Haines with

the gun. This would be a compelling argument if only the charge was based

on those facts.   However, as the PCRA court points out, Brozik was not

charged with possessing the weapon at any time during the altercation,

when Boyd was threatening Haines. Specifically, the PCRA court stated:

       The altercation was long over when [Brozik] attempted to
       conceal evidence by depositing the firearm in the wooded area
       behind Arby’s. He was defending no one, and the only threat he
       faced at that time was criminal prosecution.

PCRA Opinion, 1/22/2014, at 4.



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       The factual record supports this conclusion. Brozik was charged with

possession at a time after the altercation, when the pair had left Haines’

residence in Georges Township and had travelled to an Arby’s in South Union

Township, and Brozik took the gun either from the car or from Boyd’s

possession, and threw it into the woods. At that time, Haines was nowhere

near either Brozik or Boyd, and so was in no danger from Boyd.

       Because Brozik could not have been protecting Haines when he

disposed of the gun, the defense of justification was not available to him.

Therefore, Brozik’s claim that trial counsel was ineffective for failing to

inform him of the justification defense, and allowing him to plead guilty is

without merit.     Accordingly, the PCRA court committed no error of law in

denying Brozik relief on these claims.

       Brozik next claims trial counsel was ineffective for failing to interview

witnesses.    The PCRA court did not address this allegation, however, this

does not compromise our ability to review the claim.

       The failure to investigate “presents an issue of arguable merit
       where the record demonstrates that counsel did not perform an
       investigation.” Id.[3] “It can be unreasonable per se to conduct
       no investigation into known witnesses.” Id. Importantly, a
       petitioner still must demonstrate prejudice. Id. To demonstrate
       prejudice where the allegation is the failure to interview a
       witness, the petitioner must show that there is a reasonable
       probability that the testimony the witness would have provided
____________________________________________


3
  Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013) (en
banc).



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       would have led to a different outcome at trial. Commonwealth
       v. Dennis, 597 Pa. 159, 950 A.2d 945, 961 (2008).

       In this respect, a failure to investigate and interview a witness
       claim overlaps with declining to call a witness since the petitioner
       must prove: (i) the witness existed; (ii) the witness was
       available to testify; (iii) counsel knew of, or should have known
       of, the existence of the witness; (iv) the witness was willing to
       testify; and (v) the absence of the testimony was so prejudicial
       as to have denied the defendant a fair trial. See
       Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297, 302
       (2011) (discussing failure to interview and call an alibi witness).

Commonwealth v. Pander, 100 A.3d 626, 638-39 (Pa. Super. 2014) (en

banc).

       Brozik lists four people on his certificate of intended witnesses for the

PCRA hearing: himself, his trial counsel, Boyd and Shannon Price.4

Therefore, Boyd and Price are the only two witnesses to whom this claim can

apply. In his PCRA petition, Brozik asserted Boyd would testify that Brozik

disarmed her to protect Haines.          Nonetheless, accepting Brozik’s assertion

regarding Boyd’s proposed testimony, it makes no reference to the time

behind the Arby’s when Brozik admittedly threw the gun away. Therefore,

even if trial counsel failed to interview Boyd, Brozik suffered no prejudice as

a result.

       Shannon Price was a person who initially went with Brozik and Boyd to

Haines’ residence.       She is referred to in the police reports as “unknown
____________________________________________


4
  Although he listed four prospective witnesses, including himself, none of
the other listed witnesses testified at the PCRA hearing.



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female.” See Incident Report Synopsis, 8/17/2012, at 4. Although Brozik

lists her as a potential witness at the PCRA hearing, he never provided any

indication of the substance of her testimony. For that reason alone Brozik’s

claim fails. A petitioner must provide the PCRA court with a certification of

the proposed witnesses including a summary of the anticipated testimony.

See 42 Pa.C.S. § 9545(d)(1); Commonwealth v. Pander, supra, at 640.

     Because Brozik cannot demonstrate         how any of the proposed

witnesses’ testimony would have assisted him, or that those witnesses would

have testified on his behalf, counsel cannot be ineffective for failing to

interview them.

     Brozik’s final claim is that trial counsel was ineffective for failing to

present mitigating evidence prior to sentencing.    The PCRA court did not

address this issue.   However, based upon the certified record and the

specifics of the claim presented by Brozik, we are able to conduct a proper

review.

     The only mitigating evidence Brozik has suggested is his claim that he

was justified in disarming Boyd. However, the sentencing court was aware

of this claim, as well as Brozik’s claim that he would not have otherwise

possessed the gun because he was afraid of firearms, after having seen a

friend commit suicide by gun. See N.T. Sentencing, 5/16/2011, at 4.




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       In issuing the sentence, the court stated it considered the nature of

the offense,5 the pre-sentence report, Brozik’s statements made at the

sentencing hearing, Brozik’s extensive criminal history, and his rehabilitative

needs. Brozik has presented nothing to support his bald assertion that any

additional emphasis on his claim he disarmed Boyd to protect Haines would

have produced a different sentence.

       Because the record supports the PCRA court’s findings and there are

no errors of law, we affirm the denial of Brozik’s PCRA petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2014




____________________________________________


5
  We presume this includes the victim’s version of the offense, which
indicated Brozik accidently disarmed Boyd while he assaulted Haines.




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