J-A03007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DONALD EUGENE WINFREE

Appellant No. 1293 MDA 2014

Appeal from the Order Entered July 7, 2014

In the Court of Common Pleas of Huntingdon County

Criminal Division at No(s): CP-31-CR-0000431-2010

BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED MARCH 16, 2015

Appellant, Donald Eugene Winfree, appeals from the July 7, 2014 

order dismissing his first petition filed pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

On March 16, 2011, a jury convicted Appellant of simple assault.1 A 

prior panel of this Court summarized the relevant trial testimony as follows.

Commonwealth witness Dwayne Smith testified 

as follows. On July 24, 2010, he was at The County 

Line Inn, a local bar in Mount Union, Pennsylvania, 

with his wife, Paula. The couple had been separated 

... at that time. Appellant, Mrs. Smith’s boyfriend, 

was also present at the restaurant. Sometime 

before 2:00 a.m., the Smiths left the bar together. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.S.C.S. § 2701(a)(1).
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Mr. Smith stated that “as we was leaving,” Appellant 

“was yelling at” Mrs. Smith about a $200[.00] debt 

that she owed him. When the Smiths left the bar, 

they went to a local convenience store and then to 

Mrs. Smith’s apartment in Hartman Village, Mount 

Union. The front of the apartment had two doors 

leading to the inside, an exterior door consisting of a 

metal-framed screen door and an interior door that 

opened into the apartment. The screen door was 

locked.

Around 2:00 a.m., approximately fifteen 

minutes after the Smiths reached the apartment, 

Appellant arrived and began “beating on her door 

and asking about the money she owed.” Mrs. Smith 

instructed her husband not to open the door. 

Appellant continued to shout and swear outside the 

apartment and to pound the door. 

After listening to Appellant for ten minutes, Mr. 

Smith opened the interior door, but the screen door 

remained closed and locked. He intended to ask 

Appellant to return the following day for his money. 

At that point, Appellant said, “[Y]ou give me my F-in’ 

money,” and Mr. Smith responded, “I don’t owe you 

no money.” Mr. Smith stated that as soon as the 

interior door was ajar, Appellant “ripped the screen 

door [open] and come rushing in.” Appellant 

slammed into Mr. Smith and tackled him. As a result 

of that action, both men were thrown to the floor 

and began to engage in a physical fight. During the 

fight, Appellant struck Mr. Smith. Mr. Smith 

punched Appellant in return because he was 

“protecting [him]self.”

During cross-examination, Mr. Smith denied 

confronting Appellant or leaving the apartment. Mr. 

Smith repeated that as soon as he opened the 

interior door, Appellant “come flying through the 

[screen] door after he ripped it open, tackled me. 

We went down and rolled around a little bit.” When 

Appellant came running into the apartment and 

tackled Mr. Smith, the victim was in fear of serious 

bodily harm from Appellant. In the ensuing fight, 
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Appellant suffered wounds to a rib and a broken eye 

socket, but Mr. Smith justified his response to the 

attack by explaining that Appellant kept trying to 

assault him. The witness delineated, “[h]e just kept 

coming and I just kept defending myself.” The 

witness posed, “[w]hat do you want me to do? I’m 

not going to stand there and let him hurt me. It’s 

either he gets hurt or I get hurt. I protected 

myself.” At some point, Appellant said, “I had 

enough,” and the fight ceased. Mr. Smith insisted, 

“[w]hen Appellant stopped coming, I stopped hitting 

him. When he said he had enough, I even helped 

him lay down on the couch because he was feeling 

bad.

Mrs. Smith, who was still Appellant’s girlfriend 

at the time of the trial, confirmed that she left The 

County Line Inn in the early morning hours of July 

24, 2010, with Mr. Smith, he drove her to her 

apartment, and Appellant arrived soon thereafter 

and began to knock continually on the front door. 

Mrs. Smith also acknowledged that Appellant ripped 

open the locked screen door after Mr. Smith opened 

the interior door. She maintained that she did not 

know what occurred after Appellant forcibly opened 

the locked screen door and only observed them 

standing and then fighting on the floor. While Mrs. 

Smith insisted at trial that she did not see Appellant 

tackle Mr. Smith, she was given a copy of a written 

statement that she gave to Mount Union police the 

day after the incident. After reviewing the statement 

Mrs. Smith admitted telling police that Appellant 

“body slammed Dwayne [Smith].”

Based on the Commonwealth evidence, a jury 

convicted Appellant of simple assault—attempt to 

cause the victim serious bodily injury. It rejected a 

claim of self-defense after being given a jury 

instruction on that concept due to Appellant’s 

description of the events of July 24, 2010. 
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Commonwealth v. Winfree, 50 A.3d 236 (Pa. Super. 2012) (unpublished 

memorandum at 2-4) (citations omitted), appeal denied, 57 A.3d 70 (Pa. 

2012). 

On June 17, 2011, the trial court sentenced Appellant to three to 12 

months’ imprisonment.2 Sentencing Order, 6/17/11, at 1. On May 8, 2012, 

this Court affirmed Appellant’s judgment of sentence. Winfree, supra at 8. 

On November 21, 2012, the Pennsylvania Supreme Court denied Appellant’s 

petition for allowance of appeal. Commonwealth v. Winfree, 57 A.3d 70 

(Pa. 2012). Thereafter, on December 27, 2012, Appellant filed a timely pro 

se PCRA petition. The PCRA court appointed counsel on January 7, 2013, 

and counsel filed an amended PCRA petition on March 4, 2013. The PCRA 

court held an evidentiary hearing on March 7, 2014 and dismissed 

____________________________________________

2 On August 6, 2014 the PCRA court entered an order staying execution of 

Appellant’s sentence pending disposition of the instant appeal. Trial Court 

Order, 8/6/14. See generally, e.g., 42 Pa.C.S.A. § 9543(a)(1)(i) (stating 

that to be eligible for PCRA relief, the petitioner must show that he or she is 

“currently serving a sentence of imprisonment, probation or parole[]”).
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Appellant’s petition on July 7, 2014.3 On July 29, 2014, Appellant filed the 

instant timely appeal.4

On appeal, Appellant raises the following issues for our review.

[W]hether [Appellant’s] counsel at trial was 

ineffective:

1. When he failed to present evidence and 

argument, and request an instruction to the jury, 

regarding the lesser offense of [s]imple [a]ssault by 

[m]utual [c]onsent[?]

2. When he failed to adequately present evidence 

and argument regarding the element of intent[?]

3. When he failed to present evidence regarding the 

alleged victim’s prior history of violence[?] 

Appellant’s Brief at 2. 

When reviewing PCRA matters, we are mindful of the following 

principles. 

We consider the record in the light most favorable to 

the prevailing party at the PCRA level. This review is 

____________________________________________

3 On May 15, 2014, the PCRA court granted appointed counsel’s motion to 

withdraw her appearance based on her assertion that continued 

representation would impose a financial hardship. Trial Court Order, 

5/15/14; see Motion to Withdraw Appearance, 4/30/14, at 1-3 

(unnumbered). The PCRA court appointed new counsel to represent 

Appellant on July 9, 2014. Trial Court Order, 7/9/14.

4 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925. Specifically, the trial court adopted its reasoning 

from its July 7, 2014 opinion, dismissing Appellant’s PCRA petition, for its 

resolution of Appellant’s first issue on appeal. Trial Court Opinion, 8/28/14, 

at 2. The trial court then addressed Appellant’s remaining issues. Id. at 2-

3. 
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limited to the evidence of record and the factual 

findings of the PCRA court. We afford great 

deference to the factual findings of the PCRA court 

and will not disturb those findings unless they have 

no support in the record. Accordingly, as long as a 

PCRA court’s ruling is free of legal error and is 

supported by record evidence, we will not disturb its 

ruling. Nonetheless, where the issue pertains to a 

question of law, our standard of review is de novo

and our scope of review is plenary.

Commonwealth v. Pander, 100 A.3d 626, 630 (Pa. Super. 2014) (en 

banc) (internal quotation marks and citation omitted), appeal denied, ---

A.3d ---, 502 EAL 2014 (Pa. 2015). Further, in order to be eligible for PCRA 

relief, a petitioner must plead and prove by a preponderance of the evidence 

that his conviction or sentence arose from one or more of the errors listed at 

Section 9543(a)(2) of the PCRA. 42 Pa.C.S.A. § 9543(a)(2). One such 

error, which provides a potential avenue for relief, is ineffective assistance of 

counsel. Id. § 9543(a)(2)(ii). The issues raised must be neither previously 

litigated nor waived. Id. § 9543(a)(3). 

Additionally, “[i]n order to obtain relief on a claim of ineffectiveness, a 

PCRA petitioner must satisfy the performance and prejudice test set forth in 

Strickland v. Washington, 466 U.S. 668 (1984).” Commonwealth v. 

Reid, 99 A.3d 427, 436 (Pa. 2014). In Pennsylvania, adherence to the

Strickland test requires a PCRA petitioner to establish three prongs. Id. 

Specifically, the petitioner must demonstrate “(1) the underlying claim has 

arguable merit; (2) no reasonable basis existed for counsel’s actions or 

failure to act; and (3) the petitioner suffered prejudice as a result of 
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counsel’s error[.]” Id. We presume counsel has rendered effective 

assistance. Commonwealth v. Rivera, --- A.3d ---, 2014 WL 7404541, at 

*5 (Pa. 2014). Moreover, “[t]he reasonableness of counsel’s conduct is 

objectively measured.” Commonwealth v. Daniels, 104 A.3d 267, 281 

(Pa. 2014) (citation omitted). We also observe “review of counsel’s conduct 

cannot indulge the distorting effects of hindsight, but instead, counsel’s 

performance must be judged in light of the circumstances as they would 

have appeared to counsel at the time.” Commonwealth v. Hill, 104 A.3d 

1220, 1240 (Pa. 2014) (citations and internal quotation marks omitted). 

With regard to the third prong, “prejudice [is] measured by whether there is 

a reasonable probability that the result of the proceeding would be 

different.” Daniels, supra. “[I]f a claim fails under any required element 

of the Strickland test, the court may dismiss the claim on that basis.” 

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). 

“Additionally, counsel cannot be deemed ineffective for failure to raise a 

meritless claim.” Rivera, supra. (citation omitted).

Instantly, Appellant challenges trial counsel’s effectiveness on three 

separate bases. Appellant’s Brief at 2. In Appellant’s first claim of 

ineffectiveness, Appellant asserts that trial counsel was ineffective for failing 

to pursue a defense strategy of simple assault by mutual consent5, a lesser-

____________________________________________

5 18 Pa.S.C.S. § 2701(b).
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graded offense, and by failing to seek a jury instruction on the same. Id. at 

7. Appellant submits that “[a] fight involving mutual aggression is [] 

punished less severely than a one-sided assault[,]” and in the instant case, 

“the evidence overwhelmingly supports a conclusion that the incident was a 

mutual fight, rather than a one-sided attack.” Id. at 8. In its opinion 

dismissing Appellant’s PCRA petition, the PCRA court explained its rationale 

as follows.

In this case[,] there was no evidence that 

suggested both parties agreed to fight. Further, the 

evidence, which the jury elected to believe, was that 

[Appellant] was the aggressor. Finally, it is clear 

that [Appellant] at all times has denied assaulting 

[Mr.] Smith.

Accordingly, since there was no evidence that 

the assault began by mutual consent, an instruction 

on the subject matter of Section 2701(b)(1) would 

have been error. Therefore, trial counsel was not 

ineffective for not requesting that instruction or in 

failing to object to the failure of th[e trial c]ourt to 

instruct on the subject. 

PCRA Court Opinion, 7/9/14, at 14-15. We conclude the record supports the 

trial court’s ruling. See Pander, supra.

At the hearing on Appellant’s PCRA petition, his trial counsel, Michael 

S. Gingerich, Esquire (Attorney Gingerich) testified regarding the defense 

strategy as follows.

[Commonwealth]: 

Q. ... What was the general trial strategy or your 

difference in defending this case? 
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[Attorney Gingerich]:

A. Well, the general theme which we discussed and 

we were proceeding under we were seeking a not 

guilty verdict in this case. [Appellant] certainly 

firmly I’m sure believes to this day that he was – did 

not assault Mr. Smith and Mr. Smith obviously from 

the injuries that [Appellant] sustained had clearly 

assaulted [Appellant]. We were looking for an 

acquittal. Like I said, we turned down pleas to – I 

think to [third-degree misdemeanor] and to 

summary harassment.[6] I mean [Appellant] wanted 

vindication is why the case was going to trial. 

...

[The PCRA court]:

Q. You had rejected a plea to a summary offense?

A. Absolutely, yes. Because [Appellant] was looking 

for vindication. He said, I did not assault this guy. I 

came to the apartment under the circumstances he 

described in his testimony and he grabbed ahold me 

of (sic) and I tried to defend myself. 

...

Q. You requested -- obviously because I gave it --

you requested instructions on self-defense?

A. Yes, because that was an important part of the 

defense theory. There was no doubt that there was 

contact, physical contact, between Mr. Smith and 

[Appellant]. [Appellant], I think, in his testimony 

described it as being purely defensive in nature, 

believed that was an appropriate and our best 

chance of getting an acquittal. And you always have 

to be careful arguing alternative in front of a jury. 

And again we were looking for a full acquittal, so we 

____________________________________________

6 18 Pa.C.S.A. § 2709 (a)(1).
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weren’t interested in getting up there and admitting 

to a [third-degree misdemeanor] assault but I think 

sometimes you diminish your defense if you, you 

know, say to the jury these are the facts but if you 

look at them this way, it could be a lesser offense. ... 

N.T., 3/7/14, at 11-13. 

The PCRA court again asked counsel about the decision to pursue a 

self-defense theory and forego a strategy based on mutual consent. 

[The PCRA court]:

Q. Let me ask this question. Am I correct – and I’ve 

known [Appellant] for a long time – but am I correct 

that [Appellant] made it very clear to you that he 

wanted you to present a self-defense defense in this 

case?

[Attorney Gingerich]:

A. Again, we’re looking -- we reject pleas. We’re 

looking for an acquittal. ...

Q. He wanted nothing to do with lesser included 

offenses, did he?

A. No. We rejected those and pleas to those and I 

think [Appellant] probably believes to this day that 

he was the victim of this.

Id. at 28-29. 

Appellant also testified at the PCRA hearing and clarified that he was 

not interested in accepting a plea to simple assault in this case. Id. at 51. 

Appellant further acknowledged he was offered and rejected a plea to a 

charge of harassment, for which he would be sentenced to one year of 
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probation. Id. As to his trial testimony, Appellant testified as follows at the 

PCRA hearing.

[The Commonwealth]:

Q. And you were asked [at trial] did you punch him 

or attempt to punch him, meaning [Dwayne] Smith 

or Mr. Smith?

[Appellant]:

A. Yes.

Q. And your answer if you recall?

A. No. I made a defensive move to try to stop him 

from attacking me.

Q. So you never threw punches?

A. I never hit him, no.

Id. at 52. It is clear from our review of the record that both Mr. Smith and 

Appellant claimed to act in self-defense, and both men testified the other 

was the aggressor. The PCRA court correctly highlights that there was no 

evidence this incident was by mutual consent to fight, and therefore, counsel 

was not ineffective for failing to seek an instruction thereon. Further, the 

testimony from the PCRA hearing undoubtedly supports Attorney Gingerich’s 

position that Appellant was seeking an acquittal in this case. See id. at 11-

13, 28-29, 51-52. Accordingly, we conclude Attorney Gingerich’s decision to 

focus the defense on a self-defense theory, in light of the circumstances as 

they appeared to him at the time of trial, i.e. Appellant’s rejection of a plea 

to harassment and Appellant’s adamancy that he was defending himself 
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against Mr. Smith’s attack, was a reasonable trial strategy. See Hill, supra. 

As a result, Appellant is not entitled to relief on this issue. 

Next, Appellant claims counsel rendered ineffective assistance “for 

failing to adequately present evidence and argument regarding the element 

of intent.” Appellant’s Brief at 12. Appellant argues, “[a]lthough trial 

counsel made passing mention of the element of intent in his closing 

argument, he failed to adequately draw the jury’s attention to the lack of the 

Commonwealth’s evidence on this issue.” Id. at 13. Further, Appellant 

advances, “[h]ad trial counsel emphasized the lack of evidence regarding 

intent, it would have provided a complete defense to [Appellant].” Id. at 

14.

Although not specifically addressed in its opinion denying PCRA relief, 

in its opinion pursuant to Rule 1925, the PCRA court responded to this 

argument.

Candidly, [the PCRA court] did not understand the 

point [Appellant’s] counsel was attempting to make. 

Appellant at all times including during his testimony 

at [the PCRA] hearing flatly denied striking the 

victim. ... [Attorney] Gingerich argued his client was 

not guilty because he never struck the victim which 

in the context of a trial for simple assault is an 

argument that subsumes an argument that he 

didn’t intend to assault the victim.

PCRA Court Opinion, 8/28/14, at 2-3. 

Our review of the trial transcript reveals Attorney Gingerich indeed 

argued that Appellant did not possess the requisite intent to injure Mr. 
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Smith. See N.T., 3/16/11, at 98-103. Further, as discussed above, 

Attorney Gingerich was seeking an acquittal for his client on the basis of 

self-defense. He testified at the PCRA hearing, “I think if you look at [the 

closing argument as a] whole, it accurately conveys to the jury that his 

actions were legally excusable.” N.T., 3/7/14, at 33. 

The record belies Appellant’s claims that Attorney Gingerich did not 

dispute the Commonwealth’s evidence of intent, and it was an objectively 

reasonable strategy for Attorney Gingerich to focus the defense on a theory 

of self-defense. See Daniels, supra. Therefore, under the circumstances 

as they appeared at the time of trial, Attorney Gingerich cannot be said to 

have rendered ineffective assistance on this basis. See Hill, supra. 

In Appellant’s final claim of ineffectiveness, he avers, “trial counsel 

was ineffective for failing to present evidence regarding the alleged victim’s 

prior history of violence.” Appellant’s Brief at 14. However, as to this claim, 

the PCRA court correctly observes, “[t]he final issue was not raised in the 

petition or addressed or argued at hearing.” PCRA Court Opinion, 8/28/14, 

at 4.

It is fundamental that “issues not raised in the lower court are waived 

and cannot be raised for the first time on appeal.” Commonwealth v. 

Tejada, --- A.3d ---, 2015 WL 62931, at *7 (Pa. Super. 2015) (citations 

omitted); accord Pa.R.A.P. 302(a). Because Appellant failed to raise this 
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claim in his petition for PCRA relief, this claim is waived. Commonwealth 

v. Reid, 99 A.3d 470, 494 (Pa. 2014). 

Based on the foregoing, we conclude all of Appellant’s challenges of 

ineffectiveness are either devoid of merit or waived. Accordingly, the PCRA 

court’s July 7, 2014 order is affirmed.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2015