J-S61040-14

* Retired Senior Judge assigned to the Superior Cou rt. NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee

v. PATRICK REED MORAN, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 809 WDA 2014 Appeal from the PCRA Order April 23, 2014, in the Court of Common Pleas of Potter County, Criminal Division at No(s): CP-53-CR-0000148-2012 BEFORE: FORD ELLIOTT, P.J.E., WECHT and STRASSBURG ER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 16, 2014 Patrick Reed Moran (Appellant) appeals from the or der entered on April 1, 2014, denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm. The background underlying this matter can be summa rized in the following manner. On December 10, 2012, a jury convicted Appellant of possession of a firearm prohibited. The conviction stemmed fr om Appellant’s possession of a shotgun while on parole . On February 8, 2013, the trial court sentenced Appella nt to fortyeight (48) to one-hundred-twenty (120) months’ impr isonment. Appellant timely filed a notice of appeal on Februa ry 25, 2013. ...

Commonwealth v. Moran , 93 A.3d 496 (Pa. Super. 2013) (unpublished memorandum at 1). “[On direct appeal,] Appellant a rgue[d] the Commonwealth improperly elicited prejudicial testim ony concerningJ-S61040-14

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Appellant’s possession of a firearm, his threats to injure and/or kill his estranged wife, and his drug use. ...” Id. at 2. In its memorandum opinion affirming Appellant’s ju dgment of sentence, this Court reproduced the complained-of t estimony. The Court then initially stated, “After a thorough examinatio n of these exchanges, we conclude the testimony regarding Appellant’s drug u se and threats to his estranged wife established context for Appellant’s possession of the shotgun.” Id. at 7. The Court, however, ultimately determined t hat Appellant waived his issue because he did not objec t to the testimony at

trial. Id. Appellant did not petition our Supreme Court for a llowance of appeal. However, he did file timely a pro se PCRA petition. His counsel subsequently filed a supplemental PCRA petition. The crux of Ap pellant’s claim was that trial counsel was ineffective for failing to object to the testimony about which he complained on direct appeal. The PCRA court held a hearing regarding Appellant’ s petition. On April 23, 2014, the court denied the petition, concluding that Appellant failed to establish the prejudice prong of the ineffective-as sistance-of-counsel

standard. 1 Appellant timely filed a notice of appeal. The P CRA court

1 In the PCRA court’s opinion in support of its orde r, the court, at least to some extent, conflated the prejudice prong of the i neffective-assistance-ofcounsel standard with a prejudice analysis under Pe nnsylvania Rule of Evidence 403.J-S61040-14

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directed Appellant to comply with Pa.R.A.P. 1925(b) , and Appellant then filed a Pa.R.A.P. 1925(b) statement. In his brief to this Court, Appellant asks us to co nsider one question, namely, “Must trial counsel object to prejudicial s tatements by the prosecutor during a jury trial concerning threats t o injure and/or kill [Appellant’s] separated wife and [Appellant’s] drug usage, when [Appellant] was never charged with these crimes?” Appellant’s Brief at 2. In support of his issue, Appellant notes that, jus t prior to his trial, a murder occurred in Potter County and that the murde r “involved a firearm, threats, and an ex-wife (the victim).” Id. at 7. Appellant argues, [Trial counsel] did not object, nor request a mistr ial, when testimony was presented by the Commonwealth that re ferred to [Appellant’s] usage of a firearm and threats to inj ure/or kill his separated wife. This was particularly prejudicial as [Appellant] was not charged with these alleged threats, but als o the facts were similar in the Potter County murder case[.]

Id. Appellant also complains that counsel failed to o bject to testimony regarding his use of drugs. Appellant does not see m to challenge the relevancy of the testimony regarding his drug use o r threats to his estranged wife; rather, he seems to suggest that the testimon y was unfairly prejudicial. Our standard of review of the denial of a PCRA peti tion is limited to examining whether the court’s rulings are supported by the evidence of record and free of legal error. Commonwealth v. Anderson , 995 A.2d 1184, 1189 (Pa. Super. 2010).J-S61040-14

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Appellant’s issue involves a claim that his trial c ounsel rendered

ineffective assistance of counsel. “To establish i neffectiveness of counsel, a PCRA petitioner must show the underlying claim has arguable merit, counsel’s actions lacked any reasonable basis, and counsel’s actions prejudiced the petitioner. Prejudice means that, a bsent counsel’s conduct, there is a reasonable probability the outcome of th e proceedings would have

been different.” Commonwealth v. Jones , 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations omitted). At Appellant’s trial, the jury was charged with det ermining whether the Commonwealth proved that Appellant violated 18 Pa.C .S. § 6105(a)(1), which provides: A person who has been convicted of an offense enume rated in subsection (b), within or without this Commonwealth , regardless of the length of sentence or whose conduct meets th e criteria in subsection (c) shall not possess, use, control, sel l, transfer or manufacture or obtain a license to possess, use, co ntrol, sell, transfer or manufacture a firearm in this Commonwea lth. Appellant stipulated that he had been convicted of an offense enumerated in 18 Pa.C.S. § 6105(b). Thus, in order to convict Ap pellant, the Commonwealth simply had to prove that Appellant pos sessed, used, controlled, sold, transferred, or manufactured a fi rearm. The Commonwealth’s first witness at trial was Josh ua Blass. According to Blass, he purchased a shotgun from a store on Ma y 14, 2012, and then sold that gun to Appellant approximately two weeks later.J-S61040-14

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The second witness to testify was Stacey Imler. I mler testified that Appellant was a neighbor and friend. Imler’s famil y owns a camp in Tioga County. Imler stated that Appellant and others wer e at that camp in late May or early June of 2012. Appellant highlights the following exchange between the prosecutor

and Imler: Q. If you can recall what was [Appellant] doing [a t the camp] at that time? A. We were up having a good time, had a [bonfire], we were drinking, partying that was about it. Q. And was [Appellant] drinking and partying with you guys? A. He’s not a big drinker I believe he partook in the party. Q. Any drugs?

A. Yes. N.T., 12/10/2012, at 30-31. Imler went on to testify that he observed Appellan t holding a shotgun at the camp. While Imler stated that Blass owned t he gun, he also testified that he asked Appellant why he purchased the gun. According to Imler, at some point, Appellant said that “he takes his marri age vows very seriously and to death do us part.” Id. at 33. Imler then stated that Appellant and Appellant’s wife, Rebecca Carr, had broken up; so, Imler “warned [Carr] that [Appellant] had a gun and [] also warned her about the vows to death do us part.” Id. at 34. Imler further testified that, after he inf ormed Carr of theJ-S61040-14

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gun at his camp, she and Matt Yoder retrieved it in order to keep Appellant from getting the gun again. On cross-examination, Imler admitted to using “alc ohol, weed, [and] bath salt” during the time Appellant was at his cam p. Id. at 37. He also believed Blass, who also was at the camp, may have used bath salt as well. On redirect examination, Imler stated that he did n ot see Appellant use any bath salt. Imler also stated, Everybody knows [Appellant], knows that his marriag e vows were sacred and anyone that’s married that’s part o f your vows too to death do us part for anyone that’s married p art of you vows is to death do us part. He meant one thing or another it’s still death do us part.

Id. at 40. Ryan Rachiele testified next for the Commonwealth. The focus of his testimony was that, in late May or early June of 20 12, Appellant offered to give him a shotgun. Rachiele asserted that he decl ined Appellant’s offer. The Commonwealth then elicited testimony from Carr . Carr stated that she and Appellant separated in May of 2012 due to Appellant’s anger and abusiveness. She reported that, after she move d out of the couple’s apartment, Imler informed her that Appellant had a shotgun. According to Carr, at some point after speaking to Imler, she as ked Appellant why he got the gun; he stated, “You know why.” Id. at 58. The prosecutor asked Carr if she knew what Appellant meant by that statement, and she responded, “From conversations from before I left him, yeah, h e said that I would get aJ-S61040-14

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bullet in the head before I would leave him and dea th, until death do us part.” Id. Carr further testified that, after her conversatio n with Appellant, she and Matt Yoder went to Imler’s camp and retrieved t he gun. The Commonwealth also presented Yoder as a witness, and for the most part, he corroborated Carr’s testimony. Roger Probel, Carr’s step-father, testified for th e Commonwealth. He reported that Yoder gave him the shotgun and that h e then gave the gun to the chief of police in Galeton. The remainder of t he testimony came from the Galeton chief of police, a forensic evidence te chnician, and a firearm and

tool mark examiner. We first will address Appellant’s claim that trial counsel was ineffective for failing to object to Imler’s testimony regardin g Appellant’s drug use. The only testimony that arguably suggests that Appellan t used any drugs was Imler’s positive response to the prosecutor’s quest ion, “Any drugs?” Id. at 31. The prosecutor did not specifically ask Imler if Appellant used drugs. Furthermore, before he answered this ambiguous ques tion, Imler stated that Appellant was not a big drinker, and after he answe red the question, Imler testified that he did not see Appellant take any ba th salt. Thus, even if we assume arguendo that trial counsel should have objected to this passing reference to drug use, we nonetheless conclude that Appellant has not established the prejudice prong o f the ineffective-J-S61040-14

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assistance-of-counsel standard. Appellant has fail ed to convince us that, had counsel successfully objected to the prosecutor ’s question and Imler’s answer, there is a reasonable probability that the outcome of his trial would

have been different. We now will address Appellant’s claim that trial co unsel was ineffective for failing to object to testimony regarding his de votion to his marriage vows, which could be construed as threats to Carr. Appellant seems to suggest that trial counsel should have objected to this testimony on the ground that its probative value was outweighed by t he danger of causing him unfair prejudice. We disagree. Pennsylvania Rule of Evidence 403 provides that a “ court may exclude relevant evidence if its probative value is outweig hed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly pres enting cumulative evidence.” Pa.R.E. 403. “‘Unfair prejudice’ means a tendency to suggest decision on an improper basis or divert the jury's attention away from its duty of weighing the evidence impartially.” Commonwealth v. Wright , 961 A.2d 119, 151 (Pa. 2008) (citation omitted). O ur Supreme Court has explained that [e]vidence will not be prohibited merely because it is harmful to the defendant. Th[e Supreme] Court has stated that it is not required to sanitize the trial to eliminate all unp leasant facts from the jury’s consideration where those facts are relevant to the issues at hand and form part of the history and naturalJ-S61040-14

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development of the events and offenses for which th e defendant is charged.

Commonwealth v. Dillon , 925 A.2d 131, 141 (Pa. 2007) (citation omitted). As we noted above, Appellant does not challenge th e relevancy of the evidence regarding the threats he made toward Carr. Furthermore, evidence of those threats helped form the history a nd natural development of the events and offenses for with Appellant was c harged. Testimony regarding those threats explained why Appellant pur chased the gun, how Carr knew about the gun, why she retrieved the gun, and why Probel turned over the gun to the police. Given the nature and c ontext of the testimony regarding Appellant’s threats toward Carr, we are n ot persuaded that this evidence had a tendency to suggest a decision on an improper basis or diverted the jury’s attention away from its duty of weighing the evidence impartially. We thus conclude that Appellant’s cla im that counsel should have objected to this testimony on the basis that i t was unfairly prejudicial lacks arguable merit. For these reasons, we conclude that the PCRA court properly denied Appellant’s PCRA petition. We, therefore, affirm t he court’s order.

Order affirmed.J-S61040-14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/16/2014