J-S24030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    PATRICK SCOTT MONGEAU

                             Appellant                  No. 134 EDA 2020


            Appeal from the PCRA Order Entered December 19, 2019
                In the Court of Common Pleas of Bucks County
               Criminal Division at No.: CP-09-CR-0006068-2014


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                            FILED AUGUST 11, 2020

        Appellant Patrick Scott Mongeau appeals from the December 19, 2019

order of the Court of Common Pleas of Bucks County (“PCRA court”), which

denied his petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

46. Upon review, we affirm.

        The facts and procedural history of this case are undisputed.          As

recounted by a prior panel of this Court on direct appeal:

        Kimberly Harvie-Kelly [(the “victim”)], age 51 at the time of trial,
        resided in a single-family residence located at 85 Quaker Hill
        Road, in Middletown Township, Bucks County, with her four
        children, ages 17, 16, 13 and 9. [The victim] knew [Appellant]
        from middle school. In July 2012, [Appellant] contacted her
        through Facebook. One month later, [Appellant] called her from
        a bus depot in Philadelphia and told her that he did not have
        transportation and that he had nowhere to stay. [The victim]
        drove to Philadelphia, brought him back to her home and allowed
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S24030-20


     him to reside there. Subsequently, the two began a romantic
     relationship. The criminal offenses for which [Appellant] was tried
     and convicted began to occur when [the victim] terminated that
     relationship.

     This case involves three distinct criminal episodes. The first
     criminal episode spanned a period of approximately eight months
     and formed the basis for the [Appellant’s] stalking conviction.
     Between September of 2013 and June of 2014, [Appellant]
     engaged in a continuous course of conduct designed to place [the
     victim] in fear of bodily injury and/or to cause her substantial
     emotional distress.      [Appellant] randomly and repeatedly
     appeared at the [victim’s] residence uninvited and unannounced
     despite being told by [her], her oldest sons and police to stay
     away from their home and to refrain from contacting them. On
     one such occasion, [Appellant] climbed on to the roof of the home.
     On another, he circled the home knocking on all of the windows.
     When not appearing in person, [Appellant] attempted to
     communicate with [the victim] through e-mail, text messaging
     and Facebook. He subjected [the victim] to physical assaults,
     causing her to suffer nerve damage during one of those assaults.
     Finally, he threatened to take her life.

     On January 28, 2014, [Appellant] left [the victim] a voicemail
     message in which he told her, “You are dead. No one can stop
     me now. Goodbye you whore.” When he was contacted by the
     police about this death threat, [Appellant] admitted that he had
     made comments that he “probably shouldn’t have.” [Appellant’s]
     intrusions into the lives of this family caused such fear and
     occurred so often that the family initiated what they called the
     “lockdown procedure” at the first sign of [Appellant’s] potential
     presence. When the family was in “lockdown,” the windows and
     doors of the residence were locked, no one was allowed in or out
     and everyone in the home kept a cellphone within reach.

     [The victim] soon realized that her attempts to keep [Appellant]
     away from her and her children had failed. She also realized that
     police intervention was having a negative impact on [Appellant’s]
     behavior. She testified that [Appellant] began to believe “he was
     untouchable” because, when the police were called to [the
     victim’s] home, he was simply escorted off the property. She was,
     therefore, forced to change tactics.      Rather than trying to
     terminate the unwanted contact, she tried to minimize
     [Appellant’s] aggressive behavior by “keeping him calm.” That


                                    -2-
J-S24030-20


     tactic also failed to curb [Appellant’s] violent, aggressive and
     controlling behavior.

     The second criminal episode occurred on June 1, 2014 at Penn
     Warner Park, a lakeside campground located in Falls Township,
     Bucks County, and formed the basis for [Appellant’s] simple
     assault and harassment convictions. On that date, [Appellant]
     arrived at [the victim’s] residence shortly after midnight looking
     for [the victim]. Her oldest son, M.C., told [Appellant] that [the
     victim] was not home but did not disclose that she and her
     boyfriend, Joseph Loomis, were staying at Penn Warner Park.
     M.C. heard [Appellant] comment, “She is probably at the lake with
     her new boyfriend.” M.C. immediately called [the victim] and her
     boyfriend to warn them [Appellant] might be on his way. He also
     initiated ”lockdown mode.” M.C. stood watch until 3:00 a.m. to
     make sure [Appellant] did not return.

     At approximately 1:00 a.m., [Appellant] arrived at Penn Warner
     Park, located the trailer where [the victim] and Mr. Loomis were
     staying and began banging on their door and yelling. [The victim]
     went outside to try to calm him down. As she was trying to speak
     with him, [Appellant] grabbed her, forcibly kissed her on the
     mouth and told her, “You have a week to fix this or we are dead.”
     [The victim] asked [Appellant] why she had to die. He responded,
     “Because we are soul mates.” [Appellant] then grabbed [the
     victim], one hand on the back of her neck, one hand on her chin,
     and twisted her head and neck. To avoid suffering serious injury,
     she did not resist the force being applied to her head and, as a
     result, was “flipped” to the ground. [The victim] testified that
     [Appellant] “goes for my neck like he is going to snap my neck.
     That's how he is going to . . . kill me.” Mr. Loomis heard [the
     victim] cry out and ran to assist her. [Appellant] then fled the
     area. [The victim] sustained painful scratches and bruises to her
     arms and back during this incident.

     The third criminal episode occurred that same date at [the
     victim’s] residence and led to [Appellant’s] arson, reckless burning
     and criminal mischief convictions. Between 3:00 a.m. and 7:00
     am., [Appellant] returned to [the victim’s] residence. He entered
     the shed on the property, retrieved a gas can and poured a trail
     of gasoline in the back yard, over a motorcycle parked beside the
     home and along the back wall of the residence. He ignited the
     gasoline with a match. The fire, while burning, blocked anyone
     from exiting the home through the sliding glass doors located at


                                    -3-
J-S24030-20


       the back of the residence. M.C., M.G., E.K. and W.K. were asleep
       in the house when [Appellant] started the fire.

Commonwealth           v.   Mongeau,           No.   3513    EDA   2015,   unpublished

memorandum, at 1 (Pa. Super. filed October 19, 2016) (citing Trial Court

Opinion, 4/8/16, at 2-5) (record citations, unnecessary capitalizations and

footnotes omitted). Following the jury trial, Appellant was convicted of arson

endangering inhabited property, reckless burning endangering personal

property, criminal mischief, stalking, simple assault, harassment, and four

counts of recklessly endangering another person (“REAP”).1                 On April 20,

2015, the trial court sentenced him to consecutive terms of five to ten years’

imprisonment for arson, three-and-a-half to seven years for reckless burning,

two-and-a-half to five years for stalking, one to two years for simple assault,

and one to two years each REAP conviction. The court imposed upon Appellant

an aggregate term of sixteen to thirty-two years’ imprisonment. Following

the filing of post-sentence motions, which the trial court denied, Appellant

filed a direct appeal.      As noted, a panel of this Court affirmed Appellant’s

judgment of sentence on October 19, 2016.                   Our Supreme Court denied

Appellant’s petition for allowance of appeal on April 11, 2017.                    See

Commonwealth v. Mongeau, 168 A.3d 1251 (Pa. 2017).

       On August 7, 2017, Appellant pro se filed a PCRA petition, alleging,

among other things, ineffective assistance of counsel claims. The PCRA court


____________________________________________


1 18 Pa.C.S.A. §§ 3301(c)(2), 3301(d)(2), 3304(a)(1), 2709.1(a)(1),
2701(a)(1), 2709(a)(1) and 2705, respectively.

                                           -4-
J-S24030-20



appointed counsel, who filed an amended petition. Following a hearing, the

PCRA court denied Appellant relief on December 19, 2019. Appellant timely

appealed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

        On appeal,2 Appellant raises a single issue for our review.

        [I.] Did [Appellant] receive ineffective assistance of counsel when
        counsel on direct appeal failed to preserve and argue against the
        overruling of her objection to inadmissible hearsay?

Appellant Brief at 3.

        At the core, Appellant argues that, although his counsel timely lodged a

hearsay objection at trial,3 she failed to pursue on direct appeal the overruling

of that objection.4 Id. at 14. As a result, she rendered ineffective assistance

on direct appeal.
____________________________________________


2“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
3 Appellant does not identify the offending statements in his brief before us.
We, however, are able to discern from the Commonwealth’s brief and the trial
court’s Rule 1925(a) opinion that Appellant challenges his direct appeal
counsel’s failure to pursue on appeal two distinct trial objections. The first
concerns the admission of Officer Thomas Lundquist’s testimony relating to
the victim’s statements. The second relates to the recording of Mr. Loomis’
911 call that was played for the jury.
4   Our standard of review regarding evidentiary issues is well-settled.

        The admissibility of evidence is at the discretion of the trial court
        and only a showing of an abuse of that discretion, and resulting
        prejudice, constitutes reversible error. An abuse of discretion is
        not merely an error of judgment, but is rather the overriding or
        misapplication of the law, or the exercise of judgment that is



                                           -5-
J-S24030-20



       When a petitioner asserts an ineffectiveness claim, he is entitled to relief

if he pleads and proves that prior counsel rendered ineffective assistance of

counsel. 42 Pa.C.S.A. § 9543(a)(2)(ii). “To prevail on an [ineffectiveness]

claim, a PCRA petitioner must plead and prove by a preponderance of the

evidence that (1) the underlying legal claim has arguable merit; (2) counsel

had no reasonable basis for acting or failing to act; and (3) the petitioner

suffered resulting prejudice.”       Commonwealth v. Reyes-Rodriguez, 111

A.3d 775, 780 (Pa. Super. 2015) (en banc). “A petitioner must prove all three

factors of the “Pierce[5] test,” or the claim fails.” Id. Put differently, “[t]he

burden of proving ineffectiveness rests with Appellant.” Commonwealth v.

Chmiel, 889 A.2d 501, 540 (Pa. 2005).

       Instantly, Appellant is not entitled to relief. Despite his argument that

his ineffectiveness claims meet the arguable merit prong of the Pierce test,

his brief is bereft of any discussion or argument with respect to the reasonable

basis and prejudice prongs. As we recently emphasized, “[a] petitioner must

prove all three factors of the Pierce test, or the [ineffectiveness] claim fails.

In addition, on appeal, a petitioner must adequately discuss all three
____________________________________________


       manifestly unreasonable, or the result of bias, prejudice, ill-will or
       partiality, as shown by the evidence of record. If in reaching a
       conclusion the trial court overrides or misapplies the law,
       discretion is then abused and it is the duty of the appellate court
       to correct the error.
Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012) (internal
quotations and citations omitted).
5   Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).


                                           -6-
J-S24030-20



factors of the Pierce test, or the appellate court will reject the claim.”

Reyes-Rodriguez, 111 A.3d at 780 (emphasis added) (citing Fears, 86 A.3d

at 804)). Thus, given Appellant’s failure to discuss the reasonable basis and

prejudice prongs on appeal, we must reject his ineffectiveness claims.

       Nonetheless, even if we were to review the merits of his ineffectiveness

claim, we would conclude that he still is not entitled to relief. Indeed, after

careful review of the record and the relevant case law, we conclude that the

trial court accurately and thoroughly addressed the merits of Appellant’s

claim. See Trial Court Opinion, 2/24/20, at 5-13. The PCRA court found that

the statements at issue did not implicate hearsay. The testimony of Officer

Lundquist, was not offered for the truth of the matter asserted, “but rather to

establish the consistency between the victim’s account and her physical

condition and to explain the steps Officer Lindquist took to investigate the

complaint.” Id. at 7. In other words, the purpose of the testimony was to

explain Officer Lundquist’s course of conduct in response to the reported

assault on the victim.6 Id. Furthermore, regardless of whether the recording

of the Mr. Loomis’ 911 call was properly admitted under the present sense

impression and/or excited utterance exceptions to the hearsay rule, any error

was harmless, as the call was cumulative of other non-hearsay testimony. Id.
____________________________________________


6 “It is well established that certain out-of-court statements offered to explain
the course of police conduct are admissible because they are offered not for
the truth of the matters asserted but rather to show the information upon
which the police acted.” Commonwealth v. Trinidad, 96 A.3d 1031, 1037
(Pa. Super. 2014) (citing Commonwealth v. Weiss, 81 A.3d 767, 806 (Pa.
2013) (quoting Commonwealth v. Chmiel, 889 A.2d 501, 532 (Pa. 2005)).

                                           -7-
J-S24030-20



at 9-11.    We, therefore, agree with the PCRA court’s conclusion that

Appellant’s ineffectiveness claim lacks arguable merit. Accordingly, we affirm

the trial court’s December 19, 2019 order denying Appellant’s PCRA petition.

We further direct that a copy of the trial court’s February 24, 2020 opinion be

attached to any future filings in this case.

      Order affirmed.

      President Judge Emeritus Bender joins the memorandum.

     Judge Strassburger files a concurring memorandum.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2020




                                      -8-
                                                                                          Circulated 07/14/2020 0�6 PM
                                                                                      1             /u'/{t°Cf;J//
                                                                                                     o»
          IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
                              CRIMINAL DIVISION



        COMMONWEALTH OF PENNSYLVANIA                                   No.    CP-09-CR-0006068-2014

                               v.                                             [134 EDA 2020]

    PATRICK SCOTT MONGEAU



                                                     OPINION

             Petitioner, Patrick Scott Mongeau, filed an appeal from this Court's order dated December

    19, 2019, denying Petitioner's request for relief pursuant to the Post Conviction Relief Act

    ("PCRA"), 42 Pa.C.S. §9541 et seq.

             On February 6, 2015, following a trial by jury, Petitioner was convicted of Arson

    (endangering inhabited property), specifically the residence of Kimberly Harvie-Kelly and her four

    children, M.C.,1 M.G., E.K. and W.K., in violation of 18 Pa.C.S. §330l(c)(2), Reckless Burning

    (endangering personal property), specifically a motorcycle owned by Ms. Harvie-Kelly, in

    violation of 18 Pa.C.S. §330l(d)(2), Criminal Mischief, in violation of 18 Pa.C.S. §3304(a)(l),

Stalking of Ms. Harvie-Kelly in violation of 18 Pa.C.S. §2709. l(a)(l), Simple Assault of Ms.

Harvie-Kelly in violation of 18 Pa.C.S. §2701 (a)(l ), Harassment of Ms. Harvie-Kelly in violation

of 18 Pa.C.S. §2709(a)(l), Recklessly Endangering M.C., Recklessly Endangering M.G.,
           ··t-
Recklessly Endangering E.K. and Recklessly Endangering W.K in violation of 18 Pa.C.S. §2705.
    H
           ·��




On Apifi'20,          iot 5, Petitioner was sentenced to   consecutive terms of incarceration of five to ten

years for.the, crime of Arson, three-and-a-half to seven years for the crime of Reckless Burning,
             t !.�,




I
    Ms. Harvie-Kelty is the guardian ofM.C. N.T. 2/4/15, at 28-29.




                                                                                                                   I
                                          )


    two-and-a-half to five years for the crime of Stalking/ one to two years for the crime of Simple

    Assault, and one to two years for each of the crimes of Recklessly Endangering Another Person

    for an aggregate sentence of sixteen to thirty-two years.

           The facts of the case were summarized in this Court's opinion for direct appeal as follows:

                            Kimberly Harvie-Kelly, age 51 at the time of trial, resided in
                    a [single-family] residence located at 85 Quaker Hill Road, in
                    Middletown Township, Bucks County, with her four children, ages
                    17, 16, 13 and 9. [N.T. 2/5/15 pp. 36-37.] Ms. Harvie-Kelly knew
                    [Petitioner] from middle school. In July of 2012, [Petitioner]
                   contacted her through Facebook. One month later, [Petitioner]
                   called her from a bus depot in Philadelphia and told her that he did
                   not have transportation and that he had nowhere to stay. Ms. Harvie-
                   Kelly drove to Philadelphia, brought him back to her home and
                   allowed him to reside there. Subsequently, the two began a romantic
                   relationship. The criminal offenses for which [Petitioner] was tried
                   and convicted began to occur when Ms. Harvie-Kelly terminated
                   that relationship. [N.T. 2/5/15 pp. 39-45.]

                           This case involves three distinct criminal episodes. The first
                   criminal episode spanned a period of approximately eight months
                   and formed the basis for [Petitioner]'s Stalking conviction. Between
                   September of 2013 and June of 2014, [Petitioner] engaged in a
                   continuous course of conduct designed to place Ms. Harvie-Kelly in
                   fear of bodily injury and/or to cause her substantial emotional
                  distress. [Petitioner] randomly and repeatedly appeared at the
                  Harvie-Kelly residence uninvited and unannounced despite being
                  told by Ms. Harvie-Kelly, her oldest sons and police to stay away
                  from their home and to refrain from contacting them. [N.T. 2/4/15
                  pp. 22-25, 32-33; N.T. 2/5/15 p. 46, 50-53.] On one such occasion,
                   [Petitioner] climbed on to the roof of the home. [N.T. 2/5/15 p. 53.]
                  On another, he circled the home knocking on all of the windows.
                  [N.T. 2/5/15 p. 52.] When not appearing in person, (Petitioner]
                  attempted to communicate with Ms. Harvie-Kelly through e-mail,
                  text messaging and Facebook. [N.T. 2/5/15 pp. 46, 48-49.] He
                  subjected Ms. Harvie-Kelly to physical assaults, causing her to
                  suffer nerve damage during one of those assaults. [N.T. 2/5/15 p.
                  68.] Finally, he threatened to take her life. On January 28, 2014,

2
 The court sheet for April 20, 2015 originally reflected a maximum sentence of seven years on the stalking conviction.
By order dated June 12, 2019, the record and the court sheet were corrected to reflect that the maximum sentence
imposed was five years.
                    )


[Petitioner] left Ms. Harvie-Kelly a voicemail message in whi�h he
told her, "You are dead. No one can stop me now. Goodbye you
whore." [N.T. 2/5/15 p. 50; Exhibit C-5.] When he was contacted
by the police about this death threat, [Petitioner] admitted that he
had made comments that he "probably shouldn't have." [N.T.
2/4/15 pp. 23-24.] [Petitioner]'s intrusions into the lives of this
family caused such fear and occurred so often that the family
initiated what they called the "lockdown procedure" at the first sign
of [Petitioner]'s potential presence. When the family was in
"lockdown," the windows and doors of the residence were locked,
no one was allowed in or out and everyone in the home kept a
cellphone within reach. [N.T. 2/4/15 pp. 35-36; N.T. 2/5/15 p. 52.]
        Ms. Harvie-Kelly soon realized that her attempts to keep
[Petitioner] away from her and her children had failed. She also
realized that police intervention was having a negative impact on
[Petitioner]'s behavior. She testified that [Petitioner] began to
believe "he was untouchable" because, when the police were called
to Ms. Harvie-Kelly's home, he was simply escorted off the
property. [N.T. 2/5/15 p. 54.] She was, therefore, forced to change
tactics. Rather than trying to terminate the unwanted contact, she
tried to minimize [Petitioner]'s aggressive behavior by "keeping
him calm." [N.T. 2/5/15 pp. 54-56.] That tactic also failed to curb
[Petitioner]' s violent, aggressive and controlling behavior.
          The second criminal episode occurred on June 1, 2014 at
Penn Warner Park, a lakeside campground located in Falls
Township, Bucks County, and formed the basis for [Petitioner]'s
Simple Assault and Harassment convictions. On that date,
[Petitioner] arrived at the Harvie-Kelly residence shortly after
midnight looking for Ms. Harvie-Kelly. Her oldest son, M.C., told
[Petitioner] that Ms. Harvie-Kelly was not home but did not disclose
that she and her boyfriend, Joseph Loomis, were staying at Penn
Warner Park. M.C. heard [Petitioner] comment, "She is probably at
the lake with her new boyfriend." M.C. immediately called Ms.
Harvie-Kelly and her boyfriend to warn them [Petitioner] might be
on his way. He also initiated "lockdown mode." M.C. stood watch
until 3 :00 a.m. to make sure [Petitioner] did not return. [N.T. 2/4/15
pp. 28-40.]
        At approximately 1 :00 a.m., [Petitioner] arrived at Penn
Warner Park, located the trailer where Ms. Harvie-Kelly and Mr.
Loomis were staying and began banging on their door and yelling.
[N.T. 2/4/15 pp. 108-111; N.T. 2/5/15 pp. 60-63.] Ms. Harvie-Kelly
went outside to try to calm him down. As she was trying to speak
with him, [Petitioner] grabbed her, forcibly kissed her on the mouth
and told her, "You have a week to fix this or we are dead." Ms.
                                  )


        The standards applicable to claims of ineffective assistance of counsel are well established.

Counsel's performance is presumed to be constitutionally adequate. Commonwealth v. Smjth,

609 Pa. 605, 623, 17 A.3d 873, 883 (2011 ). To be eligible for relief based on ineffective assistance

of trial counsel, Petitioner must establish the following:

               (I) that the underlying claim is of arguable merit; (2) that counsel
               had no reasonable strategic basis for his or her action or inaction;
               and (3) that, but for the errors and omissions of counsel, there is a
               reasonable probability that the outcome of the proceedings would
               have been different. Commonwealth v. Pierce. 567 Pa. 186, 786
               A.2d 203, 213 (2001).

Commonwealth v. Spot� 587 Pa. I, 32-33, 896 A.2d 1191, 1209-10 (2006). Trial counsel will

not be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Keaton, 623

Pa. 229, 240, 82 A.3d 419, 426 (2013). Moreover, defense counsel is afforded broad discretion to

determine tactics and strategy. Commonwealth v. Fowler, 670 A.2d 153 (Pa.Super.1996). Where

a petitioner has failed to meet any of the three distinct prongs of the ineffective assistance of

counsel test, the claim may be disposed of on that basis alone, without a determination of whether

the other two prongs have been met. Commonwealth v. Basemore, 560 Pa. 258, 294, 744 A.2d

717, 738 n.23 (2000).

       Petitioner asserts that trial counsel was ineffective for failing to challenge two hearsay

rulings on appeal. The first ruling occurred during the testimony of Officer Thomas Lundquist of

the Falls Township Police Department. Officer Lundquist testified that he responded to the Penn

Warner Club for the report of a domestic in progress and spoke to the victim and Mr. Loomis.

N.T. 2/4/15, at 53-54. He was then asked what he learned from the victim. N.T. 2/4/15, at 54.

Trial counsel objected to the testimony as hearsay. Trial counsel's objections were overruled.

N.T. 2/4/15, at 54-55. Officer Lundquist thereafter summarized the victim's account as follows:

               She was previously involved in a relationship with (Petitioner] Mr.
               Mongeau and ... she had broken off the relationship with him; that
