Com. v. Swirsding, J.

C
J-S02022-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JOHN SWIRSDING                            :
                                           :
                    Appellant              :   No. 1665 EDA 2020


           Appeal from the PCRA Order Entered August 26, 2020,
             in the Court of Common Pleas of Chester County,
           Criminal Division at No(s): CP-15-CR-0001593-2018.


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY KUNSELMAN, J.:                            Filed: May 20, 2021

      John Swirsding appeals from the order denying his petition for relief filed

pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§9541-46.

Additionally, Swirsding’s court-appointed PCRA counsel has filed a motion for

leave to withdraw from representation, as well as a “no-merit” letter pursuant

to   Commonwealth         v.   Turner,   544   A.2d   927   (Pa.   1988),     and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We

grant counsel’s motion to withdraw and affirm the PCRA court’s order denying

post-conviction relief.

      The pertinent facts have been summarized as follows:

            On May 3, 2018, [Swirsding] was living with [the
         Complainant] at their shared residence[.] [Swirsding and
         the Complainant] were in a dating relationship at that time.
         In the early morning hours of May 3, 2018, the
         [Complainant] was sleeping in an upstairs guest bedroom
         while [Swirsding] was out consuming alcohol at a bar.
J-S02022-21


         The [Complainant], believing that [Swirsding] had his key
         to the residence, locked the exterior doors before going to
         bed. [Swirsding] returned home around 1:00 a.m. and was
         intoxicated and unable to get inside the residence.
         [Swirsding] broke the window on the back door of the
         residence in order to gain entry, cutting open his right ring
         finger in the process.      Upon entering the residence,
         [Swirsding] went upstairs to the bedroom where the
         [Complainant] was sleeping, broke through the locked door,
         and proceeded to attack the [Complainant].

            Officers from the Easttown Township Police Department
         were dispatched to the residence after a neighbor heard the
         breaking of the glass window pane and commotion inside
         the residence and called the police.       Specifically, the
         neighbor heard [Swirsding] making threats to the
         [Complainant]. Upon arrival on the scene, Sergeant Francis
         Keenan and Officer Robert Malason entered the residence
         and observed [Swirsding] on top of the [Complainant], still
         attacking her, and arrested [Swirsding].

             The [Complainant] testified at trial that she thought she
         was going to die while [Swirsding] had his hands around her
         throat and was strangling her. After he was arrested and
         placed in a holding cell, [Swirsding] made comments to [the
         officers] to “not let him out of jail because he would teach
         [the Complainant] a lesson” and that “someone should kill
         the [Complainant].”

Rule 907 Notice, 7/9/20, at 2 n.5.

      On July 31, 2019, a jury convicted Swirsding of strangulation, terroristic

threats and two counts of simple assault. On December 19, 2019, the trial

court sentenced him to an aggregate term of two to four years in prison, and

a consecutive two-year probationary term.       Swirsding did not file a post-

sentence motion.    Although he initially filed a direct appeal to this Court,

Swirsding later withdrew it.




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       On April 14, 2020, Swirsding filed a counseled PCRA petition, as well as

an amended petition on April 29, 2020. In this petition, Swirsding asserted

that trial counsel was ineffective for failing to call known, available character

witnesses at his trial. Swirsding attached a certification from trial counsel to

his amended petition. In this certification, counsel explained why he chose

not to call the character witnesses identified by Swirsding.

       The Commonwealth filed a timely answer. On July 9, 2020, the PCRA

court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Swirsding’s

petition without a hearing.        Swirsding did not file a response.1   By order

entered August 26, 2020, the PCRA court entered an order denying

Swirsding’s PCRA petition.         Thereafter, the PCRA court appointed current

counsel. This timely appeal followed. Both Swirsding and the PCRA court

have complied with Pa.R.A.P. 1925.

       We first address current counsel’s motion to withdraw.        Pursuant to

Turner/Finley, supra, before seeking leave to withdraw, a criminal

defendant’s counsel must review the record to determine if any meritorious

issue exists.    See Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.

2009). In Pitts, our Supreme Court explained that such review by counsel

requires proof of:


____________________________________________


1 On July 28, 2020, Swirsding fled a pro se request for a 60-day continuance
in order to file a Rule 907 response. The PCRA court directed the clerk of
courts to forward the pro se filing to PCRA counsel.


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       1. A “no-merit” letter by PC[R]A counsel detailing the nature
          and extent of his review;

       2. The “no-merit” letter by PC[R]A counsel listing each issue
          the petitioner wished to have reviewed;

       3. The PC[R]A counsel’s “explanation,” in the “no-merit” letter,
          of why the petitioner’s issues were meritless;

       4. The PC[R]A court conducting its own independent review of
          the record; and

       5. The PC[R]A court agreeing with counsel that the petition
          was meritless.

Id. (citation and brackets omitted).        Further, PCRA counsel seeking to

withdraw from representation in this Court must contemporaneously forward

to the petitioner a copy of the petition to withdraw that includes (1) a copy of

both the “no-merit” letter, and (2) a statement advising the PCRA petitioner

that, upon the filing of counsel’s petition to withdraw, the petitioner has the

immediate right to proceed pro se, or with the assistance of privately retained

counsel.     Commonwealth v. Muzzy, 141 A.3d 509, 511-12 (Pa. Super.

2016).

       Upon review, we conclude that PCRA counsel has substantially complied

with   the    Turner/Finley    requirements    as   set    forth    above.   See

Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)

(holding that substantial compliance with requirements to withdraw as counsel

will satisfy the Turner/Finley criteria).      We now independently review

Swirsding’s claim to ascertain whether it entitles him to relief.

       Our scope and standard of review is well settled:




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         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).


         The PCRA court has discretion to dismiss a petition without
         a hearing when the court is satisfied that there are no
         genuine issues concerning any material fact, the defendant
         is not entitled to post-conviction collateral relief, and no
         legitimate purpose would be served by further proceedings.
         To obtain a reversal of a PCRA court’s decision to dismiss a
         petition without a hearing, an appellant must show that he
         raised a genuine issue of material fact which, if resolved in
         his favor, would have entitled him to relief, or that the court
         otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations

omitted).

      Swirsding claims that the PCRA court erred in dismissing, without a

hearing, his claim that trial counsel was ineffective for failing to call character

witnesses to testify on his behalf. To obtain relief under the PCRA premised

on a claim that counsel was ineffective, a petitioner must establish by a

preponderance of the evidence that counsel’s ineffectiveness so undermined

the truth determining process that no reliable adjudication of guilt or

innocence could have taken place. Commonwealth v. Johnson, 966 A.2d

523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to be

                                       -5-
J-S02022-21



constitutionally adequate, and counsel will only be deemed ineffective upon a

sufficient showing by the petitioner.”      Id.   This requires the petitioner to

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his or her action or inaction; and (3)

petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding

of "prejudice" requires the petitioner to show "that there is a reasonable

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

proceeding would have been different." Id. A failure to satisfy any prong of

the   test   for   ineffectiveness   will   require   rejection   of   the   claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

      As noted above, Swirsding asserts that trial counsel was ineffective for

failing to call character witnesses on his behalf at trial. Our standard of review

is well settled:

         When raising a claim of ineffectiveness for failure to call a
         potential witness, a petitioner satisfies the performance and
         prejudice requirements of the [Strickland v. Washington,
         466 U.S. 668 (1984)] test by establishing that: (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 witness was so prejudicial as to have denied the
         defendant a fair trial[.]

Commonwealth v. Matias, 63 A.3d 807, 810-11 (quoting Commonwealth

v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).

      Rule 404(a)(1) of the Pennsylvania Rules of Evidence states the general

rule that “[e]vidence of a person’s character or character trait is not admissible


                                       -6-
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to prove that on a particular occasion the person acted in accordance with the

character or trait.”   However, the rule also provides an exception for a

defendant in a criminal case, allowing for the defendant to “offer evidence of

the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor

may offer evidence to rebut it[.]” Pa.R.E. 404(a)(2)(A). “Although evidence

of good character may not be rebutted by evidence of specific acts of

misconduct, character witnesses may be cross-examined regarding his

knowledge of particular acts of misconduct by the defendant to test the

accuracy of his testimony and the standard by which he measures reputation.”

Commonwealth v. Peterkin, 513 A.2d 373, 382-83 (Pa. 1986) (citation

omitted),

      Here, the PCRA court explained why Swirsding’s ineffectiveness claim

regarding the failure to call known character witnesses lacked merit, and why

the claim could be dismissed without first holding an evidentiary hearing:

            The [PCRA court] finds that [trial counsel], as described
         in his certification, had a reasonable trial strategy [for not
         calling the character witnesses identified by Swirsding,]
         which must end our ineffective assistance analysis.

             The record reveals that on April 29, 2020, PCRA counsel
         filed an amended PCRA petition that included a certification
         and verification from trial counsel. [Swirsding] does not
         dispute the accuracy or admissibility of [trial counsel’s]
         certification, rather he argues that [trial counsel’s]
         reasoning does not constitute a reasonable trial strategy.
         We disagree.

            In his certification, [trial counsel] stated in detail, his
         reasons for not calling the aforementioned individuals as
         witnesses to testify regarding [Swirsding’s] peaceful and
         non-violent reputation in the community. [Trial counsel]

                                     -7-
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         cogently detailed at least four (4) separate and distinct
         reasons for not calling these witnesses at trial. The reasons
         articulated by [trial counsel] comport with our review of the
         record[.]

Rule 907 Notice, at 9 n.5 (excess capitalization and citations omitted).

      The PCRA court then listed these reasons as follows:

         1. [Swirsding’s]     email   correspondence    contradicted
            [Swirsding’s] recitation of his prior criminal history.
            Specifically, it appears that [Swirsding] included false
            language about his propensity for non-violence by
            mistake, as a means to coach his potential character
            witnesses, or deliberately because these individuals
            lacked knowledge of [Swirsding’s] true character, which
            is violent.

         2. [Swirsding’s] proposed character witnesses were
            unaware of [Swirsding’s] prior conviction for violence.
            [Swirsding] had previously informed [trial counsel] that
            the proposed character witnesses lacked any knowledge
            of [Swirsding’s] prior summary harassment conviction
            (pled down from a simple assault charge) against the
            [Complainant].

         3. [Swirsding] failed to inform [trial counsel] that the
            purported character witnesses were aware of his
            reputation in the community for peacefulness and non-
            violence.

         4. [Swirsding’s] proposed character witnesses would be
            extensively cross-examined about [Swirsding’s] prior
            violent conviction, by doing so, the jury would learn of
            this conviction which otherwise would not be admitted at
            trial.

Rule 907 Notice, 7/9/20, at 10 n.5 (excess capitalization and citations

omitted).

      Given the above, the PCRA court further explained:




                                     -8-
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             Here, logic dictates that [trial counsel] had a reasonable
         concern that he may be suborning perjured testimony,
         subject his client to impeachment by the Commonwealth, or
         that the purported testimony may prejudice the jury against
         [Swirsding]. Furthermore, [trial counsel] had a rational trial
         strategy because [Swirsding’s] prior conviction for violence
         (summary harassment) would have been admissible to
         cross-examine these witnesses. The record corroborates
         [trial counsel’s] strategy by revealing that [Swirsding’s]
         prior harassment conviction was not admitted at trial. Our
         review of the record evidences that the proposed character
         witnesses were not initially aware of [Swirsding’s] prior
         conviction for violence.

Id. Thus, the PCRA court concluded that trial counsel “had a rational basis

for not calling [the three individuals he identified] as character witnesses[,]”

and trial “counsel will not be deemed ineffective for failing to do so.”    Id.

(citations omitted).

      Our review of the record supports the trial court’s conclusion. See, e.g.,

Peterkin, 513 A.2d at 383 (holding trial counsel’s concern “that the potential

harm from cross-examination of character witnesses outweighed the doubtful

value of their testimony, was a reasonable basis for not pursuing potential

character witnesses or presenting character evidence”). In addition, we note

the evidence that Swirsding attacked the Complainant was overwhelming—

the police witnessed Swirsding assaulting the Complainant, a neighbor heard

him threaten the Complainant, the Complainant thought she was going to die,

and, while in custody, Swirsding told that police that someone should kill the

Complainant.

      In sum, because the record supports PCRA counsel’s determination that

Swirsding’s trial counsel had a reasonable trial strategy, Swirsding’s

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ineffectiveness claim fails.    We therefore grant PCRA counsel’s motion to

withdraw and affirm the PCRA court’s order denying Swirsding post-conviction

relief.

          Motion to withdraw granted. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/21




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