J-S76005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                               :        PENNSYLVANIA
                                            :
                                            :
              v.                            :
                                            :
                                            :
 GLENN HANSEN                               :
                                            :   No. 2366 EDA 2015
                         Appellant          :

                  Appeal from the PCRA Order July 17, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009484-2007


BEFORE:     PANELLA, J., STABILE, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                                 FILED APRIL 24, 2018

      Glenn Hansen appeals from the order dismissing his petition pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546,

without a hearing. Appellant alleges he was entitled to an evidentiary hearing,

and ultimately a new trial, due to trial counsel’s ineffectiveness during his jury

trial. We affirm.

      For a recitation of the complete factual background and procedural

history of this case, we direct the interested reader to the memorandum

decision written by a prior panel of this Court in response to Appellant’s direct

appeal. See Commonwealth v. Hansen, No. 2949 EDA 2011 at 1-3 (Pa.

Super., filed February 7, 2013) (unpublished memorandum).

       Briefly,     in   May   2005,   Appellant’s   girlfriend,   Taneke   Daniels,

disappeared. Approximately a year later, construction workers at Brendan


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Byrne State Park in Burlington County, New Jersey, discovered a decomposing

body wrapped in a tarp and buried in a shallow grave. The authorities

positively identified the body as Daniels. The New Jersey State Police

contacted Appellant to set up an interview. After receiving his Miranda1

warnings, Appellant informed New Jersey State Police Detective Bryant Hoar

that he had not left his Philadelphia apartment the day Daniels went missing.

Further, he denied ever having visited a New Jersey state park. When

Detective Hoar confronted Appellant with cell phone records that disputed his

statement, Appellant stopped responding to questions and looked down briefly

before his attorney ended the interview.

        The police also conducted several interviews with Appellant’s sister,

Kelly Hansen. While Ms. Hansen initially admitted to varying degrees of

knowledge surrounding Daniels’s disappearance, she ultimately informed the

police that Appellant had confessed to smothering Daniels and burying her in

the park. Following Ms. Hansen’s statement, the police arrested Appellant and

charged him with first-degree murder and abuse of corpse.2

        Appellant proceeded to jury trial. At trial, the Commonwealth presented,

in part, the testimony of Detective Hoar, Ms. Hansen, and the medical

examiner, Dr. Ian Hood. Dr. Hood testified that although the decomposition

of Daniels’s body made it difficult to discern a cause of death, suffocation was

____________________________________________


1   Miranda v. Arizona, 384 U.S. 436 (1966).

2   18 Pa.C.S.A. §§ 2502(a) and 5510, respectively.

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a potential cause of death. Appellant presented the testimony of Dr. Paul

Hoyer, a forensic pathologist, who opined that Daniels could have died of a

drug overdose. Appellant did not testify on his own behalf.

      Following the close of evidence, the jury convicted Appellant of first-

degree murder and abuse of corpse. The following day, the trial court imposed

a sentence of life imprisonment. Appellant filed an appeal to this Court, and

we affirmed his judgment of sentence. Our Supreme Court denied Appellant’s

petition for allowance of appeal.

      Appellant filed a timely pro se PCRA petition. The PCRA court appointed

counsel who later filed an amended petition. The PCRA court issued notice of

its intent to dismiss Appellant’s petition without a hearing, and ultimately

dismissed the petition. This timely appeal follows.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of

law, our scope of review is de novo. See id.

      “The right to an evidentiary hearing on a post-conviction petition is not

absolute.” Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010)

(citations and brackets omitted). Instead, a PCRA court may decline to hold a

hearing where it can determine, from the record, that there are no genuine

issues of material fact. See Commonwealth v. Jones, 942 A.2d 903, 906

(Pa. Super. 2008). “With respect to the PCRA court’s decision to deny a

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request for an evidentiary hearing … such a decision is within the discretion of

the PCRA court and will not be overturned absent an abuse of discretion.”

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citation omitted).

      All of Appellant’s issues on appeal assert the ineffective assistance of

trial counsel. We presume counsel provided effective assistance; Appellant has

the burden of proving otherwise. See Commonwealth v. Pond, 846 A.2d

699, 708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a claim

of ineffective assistance of counsel, he must show, by a preponderance of the

evidence, ineffective assistance of counsel which … so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.

Super. 2005) (citation omitted). Further,

      [an a]ppellant 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 his action or inaction; and
      (3) [a]ppellant suffered prejudice because of counsel’s action or
      inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).

A failure to satisfy any prong of the test will require rejection of the entire

claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (citations and internal quotation marks omitted).

“Prejudice is established if there is a reasonable probability that, but for

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counsel’s errors, the result of the proceedings would have been different. A

reasonable probability is probability sufficient to undermine confidence in the

outcome.” Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013)

(en banc) (citations and internal quotation marks omitted).

      Appellant’s first issue concerns trial counsel’s failure to introduce specific

bias evidence against the Commonwealth’s main witness, his sister, Ms.

Hansen: that Ms. Hansen may be biased against Appellant because he had

been convicted of raping her in 1993. As Ms. Hansen was the Commonwealth’s

main witness, Appellant maintains it is reasonable to conclude that if she had

been impeached with this particular bias against Appellant, the jury would

have doubted her veracity and acquitted Appellant. As such, Appellant argues

that trial counsel’s failure to impeach Ms. Hansen with this evidence resulted

in prejudice.

      A criminal defendant has the right to cross-examine a witness “as to any

matter tending to show the interest or bias of that witness.” Commonwealth

v. Hyland, 875 A.2d 1175, 1186 (Pa. Super. 2005) (citation omitted). This

allows a defendant to test a “witness’[s] story, to impeach credibility, and to

establish the witness’[s] motive for testifying.” Id. (citation omitted). As

revealing bias through cross-examination is an important duty of a defense

attorney, “[a] failure to [] impeach a key witness is considered ineffectiveness

in the absence of a reasonable strategic basis for not impeaching.”




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Commonwealth v. Small, 980 A.2d 549, 565 (Pa. 2009) (citation omitted).3

However, trial counsel will not be deemed ineffective for failing to impeach a

witness in a particular way, where counsel has sufficiently impeached a

witness by other means. See Commonwealth v. Solano, 129 A.3d 1156,

1175 (Pa. 2015); Commonwealth v. Dennis, 715 A.2d 404, 408-409 (Pa.

1998).

       We agree with the PCRA court that Appellant is not entitled to relief on

this claim. Defense counsel spent a significant amount of time during his

closing argument highlighting problems with Ms. Hansen’s testimony—on

matters ranging from the inconsistencies in her statements to her self-

interested testimony in the face of her promise of immunity from the

Commonwealth. See N.T., Trial, 5/23/11, at 51-60.

       Additionally, even if this proposed impeachment would have caused the

jury to disbelieve Ms. Hansen’s testimony in its entirety, the Commonwealth

presented significant circumstantial evidence of Appellant’s guilt including:

Appellant’s impending trial for assaulting Daniels, see N.T., Trial, 5/18/11, at

54, 65-71; Benita Dixon’s testimony that Appellant offered Daniels money to

keep her from testifying against him at that trial, see N.T. Trial, 5/19/11, at
____________________________________________


3 “[T]he court is not to glean, surmise, or speculate with regard to the strategy
of counsel except in those rare instances where his strategy is clear and
obvious from the record under review.” Commonwealth v. McGill, 832 A.2d
1014, 1023 (Pa. 2003). Perhaps that is not the case here, but it seems
possible, as the Commonwealth posits, that “the self-immolating effect of the
rape revelation would have made his murder conviction more likely, not less
likely.” Commonwealth’s Brief, at 10.


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10-11; Appellant’s cell phone records placing him at Daniels’ apartment the

day she went missing, see iid., at 170-178; Helymah Barry’s and Kareemah

Zyad’s testimony that Appellant was the last person seen with Daniels, see

N.T., Trial, 5/18/11, at 84-94; Appellant’s false story to the police about a

stranger in a white SUV, see id., at 166-173; and Appellant’s attempts to

convince Daniels’ family that Daniels was still alive a month after her

disappearance by pretending to have received a voicemail message from her,

see id., at 98-104. See also Hansen, No. 2949 EDA 2011 at 3-5.

      In short, we find Appellant has failed to establish a “reasonable

probability that, but for counsel’s errors, the result of the proceedings would

have been different.” Stewart, 84 A.3d at (citations and internal quotation

marks omitted). Appellant’s first ineffectiveness claim fails on the prejudice

prong.

      Next, Appellant claims trial counsel was ineffective for failing to object

to Detective Hoar’s statement that, when confronted with inconsistencies in

his statement during a pre-arrest interview, Appellant looked down and

stopped answering questions, causing his attorney to end the interview.

Appellant alleges this testimony violated his right against self-incrimination

afforded to him by both the United States and Pennsylvania Constitutions, and

relies on this Court’s decision in Commonwealth v. Molina, 33 A.3d 51 (Pa.

Super. 2011), to support his claim. As this testimony violated his rights,

Appellant argues he was innately prejudiced.




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      “Both the Fifth Amendment of the United States Constitution and Article

1, Section 9 of the Pennsylvania Constitution protect an individual’s right not

to be compelled to be a witness against himself.” Commonwealth v. Adams,

39 A.3d 310, 316 (citation omitted). Following precedent set forth by the

United States Supreme Court, our Supreme Court has long held that this right

precludes the government from using a post-arrest silence of a non-testifying

defendant   as   substantive   evidence    of   consciousness   of   guilt.   See

Commonwealth v. Clark, 626 A.2d 154, 156 (Pa. 1993).

      Subsequently, in Molina, an en banc panel of this Court extended this

rule to pre-arrest statements, holding “the Commonwealth cannot use a non-

testifying defendant’s pre-arrest silence to support its contention that the

defendant is guilty of the crime charged as such use infringes on a defendant’s

right to be free from self-incrimination.” 33 A.3d at 62 (citations omitted).

However, the en banc panel clearly expressed that this finding “does not

impose a prima facie bar against any mention of a defendant’s silence; rather,

we guard against the exploitation of appellant’s right to remain silent by the

prosecution.” Id., at 63 (citation omitted).

      Appellant’s reliance on Molina is misplaced. The Commonwealth,

through Detective Hoar, did not offer the evidence of Appellant’s pre-arrest

silence as substantive evidence of his guilt. Instead, Detective Hoar described

Appellant’s behavior when confronted with inconsistencies as a way of

explaining how his interview with Appellant ended. As Molina bars references

to a defendant’s pre-arrest silence only where it is used to support an

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inference of a defendant’s guilt, we do not find that Molina applies to the case

at hand.

      Thus, we find Detective Hoar’s reference to Appellant’s pre-arrest

silence did not violate his constitutional rights. Because Appellant cannot

establish his underlying claim has merit, he has failed to argue successfully

counsel’s    ineffective   assistance   with   regard    to    this   claim.     See

Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006) (“Counsel will not

be deemed ineffective for failing to raise a meritless claim.”)

      Further, we fail to see how he was prejudiced. The Commonwealth’s

reference to Appellant’s pre-arrest silence was fleeting. After Detective Hoar

testified   that   Appellant’s   non-compliance    ended      his   interview,   the

Commonwealth did not refer to Appellant’s interview silence, either explicitly

or implicitly, again. Our Supreme Court has found that “[e]ven an explicit

reference to silence is not reversible error where it occurs in a context not

likely to suggest to the jury that silence is the equivalent of a tacit admission

of guilt.” Commonwealth v. DiNocola, 866 A.2d 329, 337 (Pa. 2005)

(citation and parentheses omitted).

      Finally, Appellant claims trial counsel was ineffective for failing to object

to the opinion testimony of Dr. Hood, the Commonwealth’s forensic

pathologist. Appellant contends Dr. Hood exceeded the scope of his expertise,

forensic pathology, when he testified that “in 20 years of reviewing many

hundreds of ‘drug dumps,’ [i.e., where a drug overdose victim had been

transported and buried after their death] he had only experienced one case

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where an individual went to the extreme to transport a body miles away, dig

a shallow grave and bury the body.” Appellant’s Brief, at 25. Appellant

contends this opinion improperly exceeded the scope of his expertise and was

innately prejudicial. “[T]he standard for qualifying an expert witness is a

liberal one: the witness need only have a reasonable pretension to specialized

knowledge on a subject for which expert testimony is admissible.”

Commonwealth v. Doyen, 848 A.2d 1007, 1014 (Pa. Super. 2004) (citation

omitted). While this specialized knowledge must be “based on training and

experience[,] formal education on the subject matter is not necessarily

required.” Commonwealth v. Copenhefer, 719 A.2d 242, 255 (Pa. 1998).

Further, our courts have routinely qualified medical examiners as expert

witnesses, and have found that as long as their testimony is based on

experience, their testimony is not automatically limited to the medical cause

and manner of death. See Commonwealth v. Mollett, 5 A.3d 291, 305 (Pa.

Super. 2010) (finding medical examiner could rely on experience when opining

about the position of the shooting victim and the timing of gunshots).

      Initially, we note Appellant has provided no authority to support his

claim that this opinion was beyond the scope of Dr. Hood’s area of expertise.

In any event, after reviewing the qualifications of the medical examiner,

together with the evidence of record, we conclude this testimony was not

outside the scope of Dr. Hood’s expertise.

      Dr. Hood, while formally qualified as a forensic pathologist, testified

during voir dire that he served as a medical examiner in both Philadelphia and

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New Jersey for over 20 years. See N.T., Trial. 5/20/11, at 26-29. As part of

his duty as a medical examiner, Dr. Hood explained he was responsible for

investigating the circumstances surrounding an unnatural death. See id., at

26.

      Based upon this specialized knowledge as a medical examiner, and his

vast experience with cases involving “drug dumps,” Dr. Hood stated he had

never seen such a case in Philadelphia. Instead Dr. Hood opined that most

drug overdose victims in Philadelphia are “simply left in place if it’s in a drug

house or they are just dragged out to the next – the nearest vacant lot and

left there.” Id., at 70. Importantly, Dr. Hood did not rule out the possibility

that Daniels died from a drug overdose, but simply opined that a drug

overdose victim in Philadelphia is more likely to be found close to their place

of death. See id., at 69-71.

      Accordingly, as the evidence of record justified the limited opinion of the

medical examiner, this claim is meritless and counsel cannot be found

ineffective. See Commonwealth v. Blount, 647 A.2d 199, 204-205 (Pa.

1994) (holding trial counsel cannot be held ineffective in failing to object to a

medical examiner’s expert testimony where the testimony was fairly within

the scope of the medical examiner’s expertise).

      The PCRA court committed no error in dismissing the petition without a

hearing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/18




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