Commonwealth v. Divalentino

• Decision Date: 24 January 2023
• Docket Number: 1007 EDA 2022,J-S38039-22
• Parties: COMMONWEALTH OF PENNSYLVANIA v. ANTHONY J. DIVALENTINO
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA v. ANTHONY J. DIVALENTINO

No. 1007 EDA 2022

No. J-S38039-22

Superior Court of Pennsylvania

January 24, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered March 4, 2022, in the Court of Common Pleas of Monroe County, Criminal Division at No(s) CP-45-CR-0000792-2010, CP-45-CR-0000840-2010.

Joseph D. Seletyn, Esq.

BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM

KUNSELMAN, J.:

Anthony J. DiValentino appeals from the order granting in part and denying in part his first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. DiValentino, through PCRA counsel, argues that his trial counsel was ineffective for failing to object to the jury having certain photographs during deliberations. Additionally, DiValentino has filed with this Court a pro se motion to remand to appoint alternate PCRA counsel. We affirm the PCRA court's order and deny DiValentino's motion.

On March 21, 2010, DiValentino struck the victim with a shoe and his fists. Police arrested him and charged him with simple assault and harassment at Case 792-2010. He posted bail. On April 22, 2010, the morning of the preliminary hearing DiValentino held the victim at gunpoint to try to keep her from testifying against him. Police again arrested DiValentino and charged him with kidnapping, intimidation of a witness, recklessly endangering another person, and other offenses at Case 840-2010. On June 10, 2010, DiValentino was again released on bail, with the condition that he not contact the victim.

Four days after DiValentino's release, on June 14, 2010, he ran the victim off Interstate 84 in New York, causing her to crash. New York State police arrested DiValentino and charged him in connection with that incident. Later, New York charged DiValentino for soliciting another inmate to kill the victim. New York kept DiValentino in its custody while prosecuting him. Meanwhile, the Commonwealth repeatedly attempted to secure DiValentino's presence in Pennsylvania by means of a governor's warrant and the Interstate Agreement on Detainers (IAD), 42 Pa.C.S.A. §§ 9101-9108.

DiValentino's Pennsylvania cases went to trial from June 21 to 23, 2016, after his New York proceedings were completed. During the Commonwealth's case, it presented evidence about the New York incidents, including photographs of the victim's vehicle. Without objection, the photographs went out with the jury during deliberations. The jury acquitted DiValentino of possessing an instrument of crime and of recklessly endangering another person and convicted him of the remaining offenses. The court imposed an aggregate sentence of 156 to 312 months plus 90 days of incarceration consecutive to DiValentino's New York sentences.

This Court affirmed DiValentino's judgment of sentence on direct appeal. Commonwealth v. DiValentino, 2018 WL 3827259 (Pa. Super. Aug. 13, 2018) (non-precedential memorandum), allocatur denied, 202 A.3d 39 (Pa. Feb. 13, 2019).^[1] Notably, the panel addressed DiValentino's claim that the trial court erred by allowing the jury to hear evidence about the subsequent events in New York, concluding that the trial court did not abuse its discretion. Id. at *4 (finding that the New York events were res gestae evidence).

DiValentino filed his first timely pro se PCRA petition on November 25, 2019, raising fifteen claims. DiValentino and his first appointed PCRA counsel disagreed about which issues counsel would argue from DiValentino's pro se petition. The PCRA court heard and granted counsel's motion to withdraw on July 23, 2020, appointing present PCRA counsel. DiValentino and his present PCRA counsel had a similar disagreement, leading DiValentino to file a motion to proceed pro se. The court held hearings on DiValentino's petition on January 22 and March 30, 2021. At the hearings, DiValentino elected to maintain his representation with present counsel rather than proceed pro se.

Counsel briefed three issues before the PCRA court: (1) the harassment sentences were illegal, (2) DiValentino was entitled to additional credit for time served, and (3) trial counsel should have objected to the jury having the New York photographs during deliberations. The PCRA court granted

DiValentino's petition to change his harassment sentences from flat terms of 90 days to indefinite terms of 45 to 90 days, and it provided the requested time credit. It denied his motion for a new trial, based on the photographs.

DiValentino timely appealed.^[2] DiValentino filed a concise statement of matters complained of on appeal on May 9, 2022. The PCRA court entered opinions on April 28 and May 19, 2022, referencing its prior opinion issued on DiValentino's PCRA petition. On May 20, 2022, DiValentino submitted a pro se motion to this Court, seeking to remand for appointment of alternate PCRA counsel. We deferred disposition of DiValentino's motion.

In his brief, DiValentino raises one issue for our review:

Whether the PCRA court erred and abused its discretion by failing to find that trial counsel was ineffective for failing to object to the trial court sending to the jury photos which could be considered to be inflammatory in nature and which had the effect of being overly prejudicial.

DiValentino's Brief at 6 (capitalization omitted).^[3]

This Court's standard of review for a PCRA ruling calls for us to "determine whether the ruling of the PCRA court is supported by the evidence and free of legal error. The PCRA court's factual findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Webb, 236 A.3d 1170, 1176 (Pa. Super. 2020) (citing Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)).

To be entitled to PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that the conviction or sentence under review was the result of one or more specifically enumerated bases, the claims have not been previously litigated or waived, and the failure to litigate the issue was not "the result of any rational, strategic or tactical decision by counsel." See 42 Pa.C.S. § 9543(2)-(4). An issue is previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or it has been raised and decided in a proceeding collaterally attacking the conviction or sentence." 42 Pa.C.S. § 9544(a)(2), (3). "[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b).

Commonwealth v. Flor, 259 A.3d 891, 902 (Pa. 2021). Regarding a claim that counsel was ineffective:

It is well-established that to succeed on a claim asserting the of ineffective assistance of counsel, the petitioner must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice as a result of counsel's action or inaction. Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987). If a petitioner fails to satisfy any of the three prongs of the ineffectiveness inquiry, his claim fails. Commonwealth v. Brown, 196 A.3d 130, 150-51 (Pa. 2018).

Commonwealth v. Parrish (Parrish II), 273 A.3d 989, 1003 n.11 (Pa. 2022) (citation formatting altered).

DiValentino argues that trial counsel was ineffective for failing to object to the jury having photographs of the victim's crashed car from the New York incident during its deliberations. DiValentino's Brief at 12. He reasons that these photographs reminded the jury not of the crimes charged in Pennsylvania, but that DiValentino was a bad person. Id. Because trial counsel never objected, the court was not presented with the opportunity to exercise its discretion to determine whether the jury would have this evidence. Id. at 13. DiValentino indicates that trial counsel did not provide a strategic basis for this failure, and none appears. Id. at 14. He therefore requests that this Court grant his PCRA petition and remand for a new trial. Id. at 15.

The PCRA court first concluded that DiValentino's claim was an attempt to relitigate the issue that this Court had decided during DiValentino's direct appeal under Pennsylvania Rule of Evidence 404(b). PCRA Court Opinion, 3/2/22, at 13-14. On the merits, the PCRA court concluded that DiValentino did not meet his burden to prove that trial counsel was ineffective:

[D]espite [DiValentino's] assertions to the contrary, the photographs were not "inflammatory." There is no question that [DiValentino's] actions in Pennsylvania and New York, especially when viewed as part of a continuum, were shocking. However, the photographs do not depict a bloody or gory scene or other images of the type that might be considered unduly prejudicial. This assessment is borne out by the fact that [DiValentino] in his brief [to the PCRA court] innocuously describes the exhibits as "photos of damage to a motor vehicle allegedly caused by [his] assault on the same victim as the Monroe County case." Simply the photographs were not by themselves evidence that would inflame the minds and passion of the jury. This is especially true when the photographs are viewed in context and in light and as part of the history of these cases - a history written by [DiValentino] himself.

Relatedly, neither the admission of the photographs nor allowing them to go out with the jury constituted an error or an abuse of discretion.

The admission or exclusion of evidence is a matter within the discretion of the trial court.

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