J-S35042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 KAREN L. WORLEY                         :
                                         :
                    Appellant            :   No. 1248 MDA 2017

                 Appeal from the PCRA Order July 11, 2017
    In the Court of Common Pleas of Adams County Criminal Division at
                      No(s): CP-01-CR-0000732-2015

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                             FILED JUNE 29, 2018

      Karen L. Worley (Appellant) appeals from the order dismissing her

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      The trial court summarized the pertinent facts and procedural history of

this case as follows:

          On July 12, 2015, at approximately 1:05 A.M.[,] Officers
      Rosenberger and Goodling of the Cumberland Township Police
      Department were dispatched to the Pike Restaurant located in
      Adams County, Pennsylvania for a reported disorderly person in
      the bar. The subject was reported to be fighting with the
      restaurant staff members, kicking and pushing them when they
      attempted to remove her from the bar. The officers located the
      subject in a gravel parking lot behind and up a hill from the bar
      and determined that she was under the influence of alcohol to a
      degree that she was a danger to herself and others. Police
      identified the subject as Appellant via her Pennsylvania driver’s
      license and placed Appellant under arrest. Shortly after police
      placed her under arrest, Appellant attempted to flee by running
      away from police. The officers tackled Appellant to the ground.
      During the struggle[,] Appellant kicked Officer Rosenberger twice
J-S35042-18


        – once in the face and once in the leg, causing bleeding, swelling,
        and discomfort. Appellant then bit Officer Goodling in the left leg
        causing broken skin, swelling, and discomfort. Both officers were
        treated for their injuries at Gettysburg Hospital.

           On April 5, 2016, Appellant was found guilty by jury verdict of
        Aggravated Assault of a Police Officer, as a felony of the second
        degree; two counts of Simple Assault, as misdemeanors of the
        second degree; [] Resisting Arrest or Other Law Enforcement, as
        a misdemeanor of the second degree[; and public drunkenness
        and similar misconduct]. On June 21, 2016, Appellant was
        sentenced to serve no less than two (2) months nor more than
        twenty-three (23) months partial confinement, subject to
        standard conditions for the Aggravated Assault conviction. For
        the first Simple Assault conviction, Appellant was sentenced to
        twenty-four (24) months of probation, running consecutively to
        the Aggravated Assault sentence. The second Simple Assault
        conviction merged with the Aggravated Assault conviction for
        sentencing purposes. For the Resisting Arrest conviction, th[e]
        [c]ourt sentenced Appellant to twenty-four (24) months of
        probation running concurrently with the Simple Assault
        sentence.[1]

           Appellant filed her Notice of Appeal from Judgment of Sentence
        and Concise Statement of Matters Complained of on Appeal on
        July 15, 2016 and August 10, 2016 respectively. On January 31,
        2017, the Pennsylvania Superior Court dismissed Appellant’s
        appeal because counsel for Appellant failed to file a brief.
        Appellant filed her PCRA petition on March 27, 2017. A PCRA pre-
        hearing conference and a PCRA hearing occurred on April 20, 2017
        and June 19, 2017 respectively. On July 11, 2017, the PCRA Court
        denied Appellant’s PCRA petition in its entirety. Appellant filed her
        Notice of Appeal and Concise Statement of Matters Complained of
        on Appeal on August 9, 2017 and September 1, 2017 respectively.

PCRA Court Opinion, 9/15/17, at 1-3 (footnotes omitted).

        On appeal, Appellant presents the following issues for review:

        I.   Whether trial counsel was ineffective for abandoning
        [Appellant]’s defenses and the PCRA court committed reversible
____________________________________________


1   Appellant was assessed no further penalty on her public drunkenness charge.

                                           -2-
J-S35042-18


       error for excluding [Appellant]’s evidence on her thoughts and
       reactions during the police encounter to establish Pierce elements
       for justification?

       II.   Whether trial counsel [was] ineffective for his failure to
       object to or move to exclude evidence of [Appellant]’s behavior
       inside Pike?

       III. Whether trial counsel was ineffective for failing to present
       rebuttal evidence once the Pike testimony and video was admitted
       into evidence and the PCRA court committed reversible error by
       failing to allow [Appellant] to present such evidence to establish
       the Pierce elements?

       IV.  Whether trial counsel was ineffective for failing to interview,
       subpoena, and to call available character witnesses?

       V.    The PCRA court committed reversible error in excluding the
       opinion testimony of John Bergdoll, Esq[uire] when [Appellant]
       must prove an alternative not chosen offered a potential for
       success substantially greater than the course actually pursued and
       that no reasonable attorney would have engaged in [trial
       counsel]’s strategy.

Appellant’s Brief at 3-4.2

       “Our standard in reviewing a PCRA court order is abuse of discretion.

We determine only whether the court’s order is supported by the record and

free of legal error.” Commonwealth v. Patterson, 143 A.3d 394, 397 (Pa.

Super. 2016) (quotations and citation omitted). “The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011).




____________________________________________


2Appellant raised numerous other issues in her PCRA petition and Pa.R.A.P.
1925(b) statement that she has abandoned on appeal.

                                           -3-
J-S35042-18


      Appellant’s first four issues claim that trial counsel was ineffective. In

deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome that presumption,

the petitioner must establish: “(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel’s action or failure to act; and (3)

the petitioner suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability that the result of the

proceeding would have been different.”           Id. (citation omitted).      To

demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

      In her first issue, Appellant argues that trial counsel was ineffective for

failing to raise the defenses of justification and mental infirmity to her

aggravated assault and simple assault charges. Appellant asserts that trial

counsel should have raised a justification defense to her aggravated assault

and simple assault charges because she was under the belief that she would

suffer death or serious bodily injury while the police officers attempted to

restrain her during her attempts to resist arrest.


                                      -4-
J-S35042-18


      In the context of resisting arrest, and with respect to the defense of

justification, our Supreme Court has explained:

      [A]n arrestee’s use of force in self protection is justified when the
      arrestee reasonably believes that such force is immediately
      necessary to protect against an arresting officer’s use of unlawful
      and deadly force, i.e., force which is readily capable of causing
      death or serious bodily injury. An arresting officer’s use of
      excessive force capable of causing less than serious bodily injury
      or death can be vindicated by recourse to subsequent legal
      remedies.

      Thus, . . . there is no justification for resisting arrest; the only
      circumstance under which the law will contemplate physical
      resistance to a police officer is when the officer unnecessarily uses
      unlawfully excessive or deadly force which triggers the right of
      self-defense. The focus . . . [is] not whether the underlying arrest
      was based on probable cause, but rather whether the officers’ use
      of force in effectuating a lawful arrest [is] itself, unlawful. A police
      officer may only use the amount of force which is necessary to
      accomplish the arrest.

Commonwealth v. Biagini, 655 A.2d 492, 499 (Pa. 1995) (emphasis added)

(quoting Commonwealth v. French, 611 A.2d 175, 179 (Pa. 1992)).

      In this case, the relevant inquiry into the applicability of the defense of

justification is whether the police used excessive or deadly force in

effectuating Appellant’s arrest. See id. Upon review, we agree with the PCRA

court’s determination that trial counsel was not ineffective for failing to raise

the defense of justification because Appellant did not possess the reasonable

belief that she was in danger of death or serious bodily injury when the police

arrested her. The record reveals that the police used only the amount of force

necessary to arrest Appellant. On the night in question, Officers Goodling and

Rosenberger encountered Appellant visibly intoxicated and determined that

                                       -5-
J-S35042-18


she was a danger to herself and others. N.T., 4/5/16, at 73. Shortly after

the officers placed Appellant under arrest and handcuffed her, she attempted

to flee by running away from them.         Id. at 76.   Officers Goodling and

Rosenberger gave chase and eventually tackled Appellant to the ground. Id.

at 77.   As the officers attempted to restrain Appellant, she kicked Officer

Rosenberger directly in the mouth and bit Officer Goodling on the leg, breaking

the skin. Id. at 77-83. Both officers continued to use physical force in an

attempt to restrain Appellant, but were unable to get her under control until

other officers arrived at the scene a placed her into a patrol car. Id. at 81-

82. Both Officers Goodling and Rosenberger required hospital treatment for

their injuries. Id. at 83.

      We conclude that the police’s use of force in arresting Appellant was not

excessive or unreasonable. Given Appellant’s attempted flight after the police

placed her under arrest and handcuffed her, the police did not act

unreasonably when they tackled her to the ground and used physical force in

their attempts to subdue her as she repeatedly kicked and bit them.

Moreover, there is no evidence to indicate that Officers Goodling or

Rosenberger engaged in any actions that would have caused Appellant to

believe she was in danger of death or serious bodily injury.         Therefore,

Appellant was not prejudiced by trial counsel’s failure to raise the defense of

justification and the trial court did not err in determining that this claim was

meritless.


                                     -6-
J-S35042-18


      Appellant further argues that trial counsel should have raised the

defense of mental infirmity because she suffered from post-traumatic stress

disorder (PTSD) and trial counsel should have introduced evidence of her PTSD

to explain why she reacted violently when the police officers arrested her.

Although there is technically no “mental infirmity” defense in Pennsylvania,

“[w]here the defendant alleges that he did not know what he was doing, he is

presenting a cognitive incapacity insanity defense.”      Commonwealth v.

Andre, 17 A.3d 951, 959 (Pa. Super. 2011). Under Pennsylvania law:

      [A] person is legally insane if at the time of committing an alleged
      crime that person is, as the result of mental disease or defect,
      either incapable of knowing what he or she is doing, or that person
      does know what he or she is doing, is incapable of judging that it
      is wrong.

Id. at 958 (quotations and citation omitted).

      At Appellant’s PCRA hearing, trial counsel testified that he discussed the

possibility of raising a legal insanity defense with Appellant, but that he was

unable to procure an expert medical opinion from her psychologist indicating

that her PTSD rendered her not legally responsible for her actions on the

evening in question. N.T., 6/19/17, at 100-102. Indeed, Richard E. Carlson,

Ph.D., whom Appellant saw for treatment of her PTSD, testified at the PCRA

hearing that he could not state “to a reasonable degree of professional

certainty” that Appellant’s PTSD triggered her actions when the Officers

Goodling and Rosenberger placed her under arrest. Id. at 27. Again, we




                                     -7-
J-S35042-18


conclude that trial counsel had a reasonable basis for not raising a legal

insanity defense and the PCRA court did not err in dismissing this claim.

      In her second issue, Appellant argues that trial counsel was ineffective

for failing to object to the admission of the surveillance video depicting

Appellant’s behavior inside of Pike Restaurant immediately prior to her

removal. Appellant contends that trial counsel should have objected to the

admission of this evidence because its probative value did not outweigh its

potential for unfair prejudice. Appellant asserts that all of her criminal charges

stemmed from her conduct outside of the restaurant, rendering this evidence

irrelevant.

      Rule 404(b) of the Pennsylvania Rules of Evidence provides:

      (b) Crimes, Wrongs or Other Acts.

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person's character in order to show that
      on a particular occasion the person acted in accordance with the
      character.

      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent, preparation,
      plan, knowledge, identity, absence of mistake, or lack of accident.
      In a criminal case this evidence is admissible only if the probative
      value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b).

      The PCRA court and the Commonwealth assert that trial counsel was not

ineffective for failing to object to the admission of the surveillance video

because it was admissible under the res gestae exception to Rule 404(b). See

PCRA Court Opinion, 7/11/17, at 11-12; Commonwealth’s Brief at 19. Thus,

                                      -8-
J-S35042-18


the PCRA court and the Commonwealth maintain that Appellant was not

prejudiced by its admission. We agree.

      This Court has explained:

      While evidence of prior bad acts is not admissible to show criminal
      propensity, evidence of other crimes may be admissible if it is
      relevant   to    show      some     other    legitimate    purpose.
      Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015).
      An exception to Rule 404(b) exists that permits the admission of
      evidence where it became part of the history of the case and
      formed    part   of    the   natural     development     of   facts.
      Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa. 2015).
      This exception is commonly referred to as the res gestae
      exception. Id.

Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016).                As our

Supreme Court has observed, a trial court is not “required to sanitize the trial

to eliminate all unpleasant facts from the jury’s consideration where those

facts are relevant to the issues at hand and form part of the history and natural

development of the events and offenses for which the defendant is charged.”

Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa. 2002) (quoting

Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988)).

      Thus, although Appellant was only convicted of crimes relating to her

behavior outside of Pike Restaurant, the surveillance video was nonetheless

admissible under the res gestae exception because it provides a complete

picture of Appellant’s behavior around the time of her removal from the bar.

From the outset, Appellant has maintained that she did not behave in an

aggressive manner on the night in question and that her actions were in

response to the aggressive behavior of others and therefore, defensive. The

                                      -9-
J-S35042-18


video is relevant because it shows that Appellant was behaving in an

aggressive, belligerent manner prior to the arrival of the police and it was not

the restaurant staff’s or the police officers’ actions that caused her to resist

arrest and react violently toward the arresting officers. Accordingly, because

Appellant has failed to establish that she was prejudiced by the admission of

this evidence, we conclude that trial counsel was not ineffective for failing to

object to it and the trial court did not err in dismissing this claim.

      We next address Appellant’s third and fourth issues together because

they are related. Appellant argues that trial counsel was ineffective for failing

to present rebutal evidence relating to Appellant’s behavior inside of Pike

Restaurant.    Specifically, Appellant asserts that trial counsel should have

questioned witnesses Heather Weaver (Weaver) and Heather Taylor (Taylor)

about what actually happened inside the restaurant. Appellant asserts that

Weaver and Taylor would have testified that Appellant was not behaving

aggressively and that Appellant had a reputation for peacefulness. Appellant

faults trial counsel for only questioning Weaver and Taylor about Appellant’s

interaction with the police. Appellant further asserts that trial counsel should

have called Laura Hughes (Hughes), a Pike Restaurant bartender, as a witness

because she was willing to testify that Appellant was not behaving in an

aggressive or intoxicated manner in the restaurant.

      With respect to Weaver and Taylor, trial counsel testified at Appellant’s

PCRA hearing that Weaver and Taylor did not inform him when he interviewed


                                      - 10 -
J-S35042-18


them prior to Appellant’s trial that they were able to and willing to provide

testimony that Appellant was not behaving in an aggressive manner in the

restaurant or that she had a reputation for peacefulness. N.T., 6/19/17, at

105-106. The record further reflects that Appellant provided trial counsel with

summaries of how Weaver and Taylor would testify, but there is no indication

that these summaries informed trial counsel that Weaver and Taylor could

provide the aforementioned factual and character testimony.         Id. at 107.

Therefore, we cannot conclude that counsel was ineffective for failing to elicit

testimony that he did not know existed at the time of trial.                See

Commonwealth v. Wallace, 500 A.2d 816, 819 (Pa. Super. 1985) (“trial

counsel cannot be found ineffective for failing to present alleged exculpatory

testimony of which he was unaware”).          Despite the fact that Appellant,

Weaver, and Taylor each had the opportunity to inform trial counsel about

what happened inside the Pike Restaurant and Appellant’s character for

peacefulness – as opposed to just her interaction with the police – none of

them did so.

      As to trial counsel’s failure to call Hughes to the witness stand, in order

for counsel to be ineffective for failing to call a witness, the PCRA petitioner

must demonstrate:

      (1) the witness existed; (2) the witness was available; (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 was so prejudicial to petitioner to have
      denied him or her a fair trial.


                                     - 11 -
J-S35042-18


Commonwealth v. Miner, 44 A.3d 684, 687 (Pa. Super. 2012).

      We conclude that trial counsel was not ineffective for his failure to call

Hughes as a witness, because the absence of Hughes’ testimony did not

prejudice Appellant. At Appellant’s PCRA hearing, trial counsel stated that he

did not call Hughes to testify because her statement indicated that she had

served Appellant drinks several hours prior to Appellant’s arrest.         N.T.,

6/19/17, at 111.    Trial counsel thus explained that he did not believe her

testimony would have been relevant or aided Appellant, as it related only to

Appellant’s behavior several hours prior to the incident with police and did not

provide any context about her removal from the restaurant or any information

about her interaction with police. Id. Therefore, the trial court did not err in

dismissing these claims.

      In her fifth and final issue, Appellant argues that the PCRA court erred

in excluding the opinion testimony of John Bergdoll, Esquire (Bergdoll) who

she asserts would have established “that no reasonable attorney would have

engaged in [trial counsel]’s strategy.” Appellant’s Brief at 55. This issue is

waived for numerous reasons. First, Appellant failed to raise this issue in her

PCRA petition. See Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014)

(claims not raised in a PCRA petition cannot be raised for the first time on

appeal and are “indisputably waived”). Similarly, Appellant did not raise this

issue in her Rule 1925(b) statement. See Commonwealth v. Hill, 16 A.3d

484, 494 (Pa. 2011) (“any issues not raised in a Rule 1925(b) statement will


                                     - 12 -
J-S35042-18


be deemed waived”). Moreover, even if Appellant had properly preserved this

issue, she fails to describe Bergdoll’s purported testimony and why he

allegedly believes trial counsel’s strategy was unreasonable. Thus, the issue

is also waived because Appellant failed to develop it in a manner appropriate

for appellate review. See Commonwealth v. Treiber, 121 A.3d 435, 474

(Pa. 2015) (holding claim waived for failure to develop it). Appellant’s final

issue is therefore without merit.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2018




                                    - 13 -
