Commonwealth v. Tanner

• Decision Date: 27 February 2019
• Docket Number: No. 211 WDA 2018,211 WDA 2018
• Parties: COMMONWEALTH of Pennsylvania v. Brian D. TANNER, Appellant
• Court: Pennsylvania Superior Court

205 A.3d 388

COMMONWEALTH of Pennsylvania

v.Brian D. TANNER, Appellant

No. 211 WDA 2018

Superior Court of Pennsylvania.

Submitted August 27, 2018

Filed February 27, 2019

Christopher P. Lacich, Youngstown, OH, for appellant.

Jonathan R. Miller, Assistant District Attorney, New Castle, for Commonwealth, appellee.

BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

OPINION BY MURRAY, J.:

Brian D. Tanner (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 part, and reverse and vacate in part.

In January 2015, Appellant, the former secretary-treasurer of Shenango Township (Township), Lawrence County, was charged with dealing with proceeds of unlawful activities, conspiracy to commit dealing with proceeds of unlawful activities, forgery, corrupt organizations, access device fraud, and theft by unlawful taking or disposition. The charges arose from Appellant's alleged receipt of unauthorized compensation in the amount of $ 650,000, in addition to his W-2 salary, as well as his alleged unauthorized credit card purchases using the Township's credit card. Prior to trial, Appellant filed a motion for change of venue, claiming that because of the immense media coverage, he would be denied a fair and impartial trial in Lawrence County. After a hearing held on July 9, 2015,¹ the court denied Appellant's motion without prejudice.

The case proceeded to trial, and following direct examination of the Commonwealth's third witness, affiant Lawrence County Detective Vincent Martwinski, Appellant decided to enter a negotiated guilty plea to seven counts of forgery,² three counts of theft by unlawful taking or disposition,³ and two counts of access device fraud.⁴ On April 6, 2016, the Honorable Dominick Motto, sitting as the trial court, accepted the Commonwealth's recommendation, and imposed a sentence of 2½ to 5 years of incarceration, five years of probation, and $ 449,000 in restitution ($ 330,000 to be paid to Shenango Township and $ 119,000 to be paid to Selective Insurance Company, the Township's bonding company).

Appellant neither filed post-sentence motions nor a direct appeal. On April 12, 2017, Appellant filed a timely pro se PCRA petition; counsel was appointed and filed an amended petition. On September 26, 2017, the trial court held an evidentiary hearing, and on November 1, 2017, held oral argument on the petition. On January 23, 2018, the PCRA court denied Appellant's petition. Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant presents the following issues for our consideration:

(1) Did the PCRA [c]ourt commit error in denying Appellant relief in the form of a new trial on the basis of ineffective assistance of trial/guilty plea counsel, which as a result of puffery, lack of investigation/preparation, and competent strategy, induced him to enter a guilty plea [with substantial restitution component] to a crime he did not commit?

(2) Did the PCRA [c]ourt commit error in denying Appellant relief in the form of a new trial on the basis of ineffective assistance of trial/guilty plea counsel, as a result of the failure to appeal the denial of transfer of venue or to request a change of venire?

(3) Did the PCRA [c]ourt commit error in denying Appellant relief in the form of a new trial on the basis of ineffective assistance of trial/guilty plea counsel, as a result of failure to pursue dismissal on the basis of selective prosecution?

(4) Is the restitution component of Appellant's [s]entence in the amount of $ 330,000 to Shenango Township illegal and does his sentence have to be vacated as a matter of law as a result?

Appellant's Amended⁵ Brief at 4.

The standard of review of an order denying a PCRA petition is whether the PCRA court's determination is supported by the record and free of legal error. Commonwealth v. Fears , 624 Pa. 446, 86 A.3d 795, 803 (2014) (quotations and citations omitted). "To be entitled to PCRA relief, [an] appellant must establish, by a preponderance of the evidence, [that his] conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2) [.]" Id.

In his first issue, Appellant contends that the PCRA court erred in failing to grant him a new trial, where counsel was ineffective for: inducing him to plead guilty; failing to prepare him and witnesses for trial; never hiring investigators or reviewing the video/audio recordings of the Commonwealth's potential witnesses; and advising him that his wife's arrest was imminent if he did not plead guilty. Appellant claims that he "was ready and willing to prove his innocence at trial through cross-examination, third-party witnesses, documents, and his own testimony, but was thwarted by his own counsel's failure to adequately investigate and prepare for his trial and/or to properly advise/strategize with him pre-trial." Appellant's Amended Brief at 27. Succinctly stated, Appellant asserts that "counsel's lack of investigation, preparation and coherent strategy clearly led to [his] abrupt guilty plea, mid-trial."Id. at 29. After careful review of the parties' briefs, the relevant case law and the certified record, we agree with the PCRA court's determination that counsel was not ineffective for the above-enumerated reasons. We rely upon the opinion, authored by Judge Motto, in affirming the denial of post-conviction relief on these ineffectiveness of counsel issues. See PCRA Court Opinion, 1/23/18, at 29-33 (counsel properly prepared for trial where he met with Appellant on several occasions to review discovery, counsel explained discovery to Appellant, provided Appellant with opportunity to review discovery on his own, counsel spoke with former Shenango Township Supervisor and Appellant's father-in-law, counsel formulated defense after conversing with Appellant, counsel spoke with Appellant during all trial recesses, including lunch time, to discuss aspects of trial; counsel's failure to subpoena witnesses would not have prevented them from testifying at trial where counsel had spoken with those witnesses and they were willing to testify on Appellant's behalf if necessary; Appellant's father-in-law had been issued a subpoena by the Commonwealth which ensured his attendance; counsel had sufficient time to issue other subpoenas if necessary for trial; and other witnesses counsel wished to call were on Commonwealth's list and would be available for trial); id. at 42-45 (Appellant signed written guilty plea acknowledging he understood nature of charges, including elements of offenses, was aware of maximum legal sentence, understood right to jury trial, knew that Commonwealth's sentencing recommendation was not binding upon court, Appellant confirmed he entered guilty plea of own free will and without coercion, had opportunity to review written colloquy with counsel, and Appellant acknowledged it had been adequately explained to him and he was satisfied with counsel's representation; Appellant's on-the-record colloquy, during which he never voiced an objection, indicated he understood the nature of charges and admitted to factual bases for charges, was aware of right to jury trial and presumption of innocence, was advised of permissible sentence ranges, knew court not bound by sentence recommendation, was satisfied with counsel's representation and that counsel had addressed any questions he had).

In his next issue, Appellant contends that counsel was ineffective for failing to appeal the court's decision to deny, without prejudice, his request to transfer venue due to negative pre-trial publicity, or to request a change of venire.

We first note that the mere existence of pre-trial publicity does not warrant a presumption of prejudice. Commonwealth v. Chambers , 546 Pa. 370, 685 A.2d 96, 103 (1996). "Our inquiry must focus upon whether any juror formed a fixed opinion of the defendant's guilt or innocence as a result of the pre-trial publicity." Commonwealth v. Marinelli , 547 Pa. 294, 690 A.2d 203, 213 (1997) (quotation omitted). Normally, what prospective jurors tell us about their ability to be impartial will be a reliable guide to whether the publicity is still so fresh in their minds that it has removed their ability to be objective. Commonwealth v. Briggs , 608 Pa. 430, 12 A.3d 291, 314 (2011). The discretion of the trial judge is given wide latitude in this area. Id.

For pre-trial publicity to be presumptively prejudicial, a defendant must prove, inter alia, "that the publicity [was] so extensive, sustained, and pervasive without sufficient time between publication and trial for the prejudice to dissipate, that the community must be deemed to have been saturated." Commonwealth v. Rucci , 543 Pa. 261, 670 A.2d 1129, 1141 (1996). The publicity must be so inflammatory and slanted toward conviction "rather than factual and objective." Marinelli , 690 A.2d at 213 (quotation omitted). "Finally, even if there has been inherently prejudicial publicity which has saturated the community, no change of venue is warranted if the passage of time has sufficiently dissipated the prejudicial effects of the publicity." Chambers , 685 A.2d at 103.

With regard to the denial of Appellant's pre-trial motion to change venue, we note that the trial court's denial was entered without prejudice with a right to re-file in the event that the selection of the jury revealed a difficulty or impossibility to seat a fair and impartial jury. Thus, whether counsel was ineffective for failing to file an interlocutory appeal of the denial of Appellant's motion must be viewed in light of the entire procedural backdrop of the case—namely, the fact that the court left open the option for Appellant to re-file his motion if an impartial jury became an impossibility at the time of voir dire.

Appellant specifically alleges that the pre-trial publicity in the local ...