Commonwealth v. Dawson, J-S03025-21

• Decision Date: 06 April 2021
• Docket Number: No. 66 WDA 2020,J-S03025-21,66 WDA 2020
• Parties: COMMONWEALTH OF PENNSYLVANIA v. JOHN DAVID DAWSON Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA v. JOHN DAVID DAWSON Appellant

J-S03025-21

No. 66 WDA 2020

SUPERIOR COURT OF PENNSYLVANIA

APRIL 6, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered December 17, 2019

In the Court of Common Pleas of Somerset County Criminal Division at No(s): CP-56-CR-0000306-2009

BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.^*

MEMORANDUM BY MURRAY, J.:

John David Dawson (Appellant) appeals from the order denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. After careful review, we affirm.

In a prior decision, we summarized the factual and procedural history of this case as follows:

On November 9, 1981, [Appellant's] wife, Kathleen Dawson ("the victim"), left her place of employment at Windber Hospital at around 11:00 p.m. Shortly after midnight, the victim's vehicle was found on fire on Cable Hill Road in Conemaugh Township. The police responded to the fire and found the victim's body inside the burning vehicle. A blackjack¹ was found at the scene and thepolice observed signs of a struggle. The medical examiners subsequently found evidence of blunt force trauma to the victim's head. At approximately 12:20 a.m., [Appellant] called the police to inquire about his wife's whereabouts. [Appellant] indicated that she should have been home by that time. The police did not arrest [Appellant] at this time.

Following years of investigation, [Appellant's] nephew, Duane Schmidt ("Schmidt"), implicated [Appellant] in the murder of the victim in early 2009. Another witness, Don Eller ("Eller"), linked the blackjack found at the scene of the crime to [Appellant]. Thereafter, on April 18, 2009, the Commonwealth charged [Appellant] with criminal homicide, criminal conspiracy, and two counts of arson. A preliminary hearing was held at which Schmidt and one of the lead investigating officers, Officer Robert Berkebile, testified. Following the preliminary hearing, Schmidt died and Officer Berkebile suffered a stroke. [Appellant] then filed a Motion for pre-trial relief, seeking, inter alia, a dismissal of the proceedings due to the expiration of the statute of limitations, motion to suppress, and a motion to exclude any prior statements or testimony of deceased individuals and to exclude testimony of any witnesses at any previous proceedings. The trial court denied [Appellant's] Motion for pre-trial relief.

The case proceeded to a jury trial in March 2011. On April 5, 2011, the trial court granted [Appellant's] Motion for judgment of acquittal on the conspiracy and arson counts. On April 8, 2011, the jury found [Appellant] guilty of first-degree murder. The trial court sentenced [Appellant] to life in prison. [Appellant] filed post-sentencing Motions, which were denied.

[Appellant] filed a timely Notice of appeal. The trial court ordered [Appellant] to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. [Appellant] filed a timely Concise Statement.

Commonwealth v. Dawson, 61 WDA 2012, at *1-3 (Pa. Super. Feb. 28, 2013) (unpublished memorandum). This Court affirmed Appellant's judgment of sentence, and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Dawson, 162 WAL 2013 (Pa. Nov. 7, 2013).

On February 5, 2015, Appellant filed a timely pro se PCRA petition. Thereafter, Appellant filed several pro se pleadings, including a motion for an evidentiary hearing, motion for discovery, and a memorandum of law in support of his petition. The PCRA court appointed counsel, who subsequently requested to withdraw due to a conflict of interest; the PCRA court granted the motion to withdraw and appointed new counsel. On June 23, 2015, the Commonwealth filed a motion to dismiss Appellant's PCRA petition.² Following a hearing, the PCRA court denied the Commonwealth's motion on October 6, 2015.

On January 8, 2016, Appellant, while still represented by counsel, filed a pro se supplemental memorandum of law in support of his petition. Recognizing that Appellant was still represented when he filed his pro sepleading, the PCRA court ordered "that no action be taken on the pending Post-Conviction Relief Act Petition pending receipt of information from [counsel] regarding [Appellant's] intentions relative to representation. Order, 1/15/16. On May 11, 2016, Stephen M. Misko, Esq., entered his appearance as private counsel for Appellant; Appellant's court-appointed counsel filed a petition to withdraw on May 26, 2016, which the PCRA court granted on June 3, 2016.

On October 2, 2017, the PCRA court granted Appellant's request to file an amended PCRA petition. On November 30, 2017, Appellant, through counsel, filed an amended petition raising 12 claims of ineffective assistance of counsel. The PCRA court held a hearing on November 8, 2018, November 9, 2018, and May 21, 2019. Thereafter, both parties filed briefs in support of their positions. On December 17, 2019, the PCRA court denied Appellant's petition. Appellant filed this timely appeal, in which he presents the following eight issues:

Whether the [PCRA] court erred when it denied Appellant's request for a new trial based on ineffective assistance of trial/appellate counsel:

1. in failing to call character witnesses;

2. in failing to investigate and call witnesses that would have established that the blackjack found at the crime scene belonged to another individual;

3. in failing to [] file a Motion to Suppress and/or Motion in Limine relating to the blackjack lineup;4. in failing to [] object to the testimony of Don Eller regarding the blackjack he observed at Appellant's apartment in the 1970's;

5. in allowing the jury to know that Appellant was incarcerated and/or requesting a curative instruction;

6. in failing to appeal the trial court's abuse of discretion in allowing Gerald Blough to testify that Appellant claimed it was easy to commit a murder in Conemaugh Township;

7. in failing to effectively appeal the trial court's abuse of discretion in permitting the preliminary hearing testimony of Duane Schmidt to be read into the record at trial; and,

8. in failing to effectively appeal the trial court's denial of Appellant's Motion to Dismiss due to pre-arrest delay.

Appellant's Brief at 22.

We begin with our standard of review:

This Court analyzes PCRA appeals in the light most favorable to the prevailing party at the PCRA level. Our review is limited to the findings of the PCRA court and the evidence of record and we do not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Similarly, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Finally, we may affirm a PCRA court's decision on any grounds if the record supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).

All of Appellant's issues assail the effectiveness of trial counsel, Joseph B. Policicchio, Esq. (Attorney Policicchio).³ With respect to these claims, our Supreme Court has explained:

It is well-settled that counsel is presumed to have been effective and that the petitioner bears the burden of proving counsel's alleged ineffectiveness. Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a petitioner must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance, "that is, a reasonable probability that but for counsel's act or omission, the outcome of the proceeding would have been different." Id. A PCRA petitioner must address each of these prongs on appeal. See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007) (explaining that "appellants continue to bear the burden of pleading and proving each of the Pierce elements on appeal to this Court"). A petitioner's failure to satisfy any prong of this test is fatal to the claim. Cooper, 941 A.2d at 664.

Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations modified).

In his first issue, Appellant argues Attorney Policicchio was ineffective for failing to call character witnesses to testify at trial on Appellant's behalf. Appellant's Brief at 29-32. Appellant asserts, "Attorney Policicchio never brought up the topic or discussed character witnesses with him, nor did he explain the legal significance of character witnesses." Id. at 29. Appellant further states:

The Commonwealth's case against Appellant was circumstantial in nature, as no direct evidence linked him to the crime scene. Appellant had no criminal history, no other prior acts of charged or uncharged violence, and police were never called to his residence for a domestic dispute. Knowing this, Attorney Policicchio unilaterally made the decision not to use character witnesses ("was not part of our defense").

* * *

By not calling character witnesses, the jury was deprived of hearing positive and substantial character trait evidence of Appellant which, in and of itself may have been sufficient to raise a reasonable doubt and result in an acquittal.

Appellant's Brief at 30-31.

The relevant law provides:

The failure to call character witnesses does not constitute per se ineffectiveness. In establishing whether defense counsel was ineffective for failing to call witnesses, appellant must prove: (1) the witness existed; (2) the witness was available to testify for the defense; (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 of the

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