J-S01019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. TIMOTHY JAMES BRUNNER Appellant No. 663 WDA 2014 Appeal from the PCRA Order February 19, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0013465-2009 BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J. MEMORANDUM BY JENKINS, J.: FILED JANUARY 30, 2015 Timothy Brunner (“Appellant”) appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 We affirm. The trial court opinion sets forth the relevant facts and procedural history of the case. See PCRA Court Pa.R.A.P. 1925(a) Opinion, September 12, 2014 (“1925(a) Opinion”), pp. 1
-8. Therefore, we have no need to restate them. Appellant raises one issue for our review: I. Did the lower court abuse its discretion in dismissing the PCRA petition without a hearing and allowing counsel leave to withdraw, insofar as [Appellant] averred that his waiver of his

____________________________________________ 1 42 Pa.C.S. §§ 9541-9546.J-S01019-15

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right to call character witnesses was involuntary and unknowing because trial counsel was ineffective for failing to contact, interview and prepare the character witnesses that [Appellant] identified to counsel as being willing to testify on his behalf? Appellant’s Brief, p. 4 (all capitals removed). In reviewing an order denying PCRA relief, our well
-settled standard of review is “to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa.Super.2013) (internal quotations and citations omitted). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Edward J. Borkowski, we conclude Appellant’s issue merits no relief. The PCRA court opinion discusses and properly disposes of the question presented. See 1925(a) Opinion, pp. 8-13 (finding: trial counsel not ineffective for failing to call character witnesses where Appellant failed to illustrate prejudice
– the alleged witnesses’ testimony would not have negated the substantial evidence of Appellant’s guilt; the trial court conducted a thorough oral colloquy with Appellant regarding his right to testify and call character witnesses during which Appellant acknowledged that he understood his right to call character witnesses, discussed the right with his attorney, and that he understood that the decision whether to call character witnesses was his alone before knowingly, voluntarily, and intelligently waiving his right to callJ-S01019-15

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character witnesses). Accordingly, we affirm on the basis of the PCRA court’s opinion. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 1/30/2015Circulated 01/06/2015 03:22 PM 

## FILED

INTHE COURT

### OFCOMMONPLEAS OFALLEGHENYCOUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, APPELLEE

v. TIMOTHYBRUNNER, APPELLANT CRIMINALDIVISION
CC 200913465

663 WDA 2014 

### OPINION
FILED BY: THEHONORABLE 'EDWARDJ. BORKOWSKI COPIES TO: SuzanneSwan, Esq. 428 Forbes Av.enue Suite 1710Lawyers Building Pittsburgh,PA 15219 Michael W.Streily, Esq. Office·of.the DistrictAttorney '.
. . .. ,., .401.County'Courthouse...-**-~**".
.. . 436 Grant Street Pittsburgh,PA 15219

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APP.ENDIXA .Circulated 01/06/2015 03:22 PM


### iN THECOURTOFCOMMON PLEAS OFALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, APPELLEE

v. TIMOTHY BRUNNER, APPELLANT.

BORKOWSKI, 1. CRIMINALDIVISION

CC 200913465

OPINION

PROCEDURALHISTORY Appellant, Timothy Brunner, was charged by criminal information (CC 200913465) with one count ofcriminal homicide, 1 one count ofkidnapping,2 one count ofabuse ofcorpse,3 and one count ofcriminal conspiracy4 Appellant proceeded to a jury trial on April 4, 2010, with codefendant Kristopher Benjamin, at the conclusion of which Appellant was found guilty of second degree murder, kidnapping, abuse ofcorpse, and criminal conspiracy
.

. ..... :

## .. 118Pa.C.S. § 2502. 2 18 Pa. CoS. §2901. !l ' ," . '

18 Pa, 

### c.s. §35lO.' 4 18 Pa.CoS. § 903. 2Circulated 01/06/2015 03:22 PM

) OnJuly 7, 2010, Appellant was sentencedby the Trial Court as follows: Count one: seconddegree murder-life imprisonmentwithoutthe possibility ofparole; Count two: kidnapping

- four to eight years incarceration to be served consecutiveto the periodofincarcerationimposed at count one; Count three: .abuse of corpse - one to two years incarceration to be served consecutiveto the periodofincarceration imposed at count two; Count four: criminal conspiracy

- four to eight years incarceration to be served consecutive to theperiod ofincarceration imposed at countthree. Appellant filed a post sentence motion on July 13, 2010, which was denied by the Trial Court onAugust 20, 2010. Appellantfiled a timely notice ofappeal on September l7, 2010. On January 18, 2013, the Superior Court vacated Appellant's judgment of .sentence and remanded to the Trial Court for resentencing as counts one and two merged. Appellant filed a Petition for Allowance ofAppeal to the Supreme Court
on February IS, 2013, which was denied on July 17, 2013. On September5,2013, Appellant was resentenced by the Trial Court as follows: Count one: second degree murder

- life imprisonment without the possibility

., .. , ,. ofparole; Counttwo: kidnapping

- merged with count one;
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Count three: abuse of corpse - one to two years incarceration to be served consecutiveto the period ofincarceration imposed at countone; Count four: criminal conspiracy

- four to eight years incarceration to be served consecutiveto the period ofincarceration imposed at countthree. On October 25, 2013, Appellant filed a

### pro se PCRA petition. The Trial Court .appointed counsel on October 29, 2013, and appointed counsel filed a motion to withdraw pursuant to Turner-Finely on January 28, 2014. On January 30,2014, the Trial Court granted counsel's motion to withdraw and filed its notice of intent to dismiss for the reasons stated in counsel's Turner-Finley letter. On February 19,2014,the Trial Court denied Appellant's PCRApetition. This timely appeal follows. STATEMENT OFERRORS ONAPPEAL Appellant raises the following issues on appeal, and they are set forth exactly.as Appellantframed them: A. The lower court abused its discretion in finding no merit to the claims raised in the PCRA petition, and denying the petition alleging trial counsel's ineffectiveness without a hearing, where the witnesses Mr. Brunner sought to present at his trial, but whom counsel failed to contact, interview and call to the stand, would have given testimony that would have raised a reasonable doubt as to Mr. Brunner's culpability, particularly as to the degree of '" homicidecharged. B. The lower court abused its discretion in finding no merit to the claims raised in the PCRA petition, and denying the petition ,alleging trial counsel's ineffectiveness without ahearing, insofar as Mr. Brunner claimed in his petition that his waiver ofhis rightto 4Circulated 01/06/2015 03:22 PM



### call character witnesses was involuntary and unintelligent because counsel failed to contact, interview and prepare the character witnesses Mr. Brunner identified to counsel as being willing to testify on his behalf.FINDINGS OFFACT The facts ofthe case have previouslybeen summarized as follows: In the early summer of 2009 Amy Kucsmas (victim) was actively involved in daily drug seeking behaviorin the Mt. Oliver and Carrick section of Allegheny County. (TT 206-208, 223, 245-246)5 In late June or early July Kucsmas spent several days in the apartment of Timothy Brunner. (T.T 283, 384-385, 738, 813-816) Brunner's residence was apartment number two (2) of a four (4) unit building located in Mt. Oliver, and at that time he was residing there with his girlfriend, Ceira Brown. (T.T. 280-281) Kristopher Benjamin was a friend and former co-worker of Brunner and lived in that same apartment building

- apartment number four (4), which was located above Brunner's apartment. (TT. 281-282,679, 774-775, 809) Shortly after Kucsmas began staying at Brunner's apartment she "disappeared", taking approximately $200 of Brunner's money as well as his photo identification card (ID). (TT 282, 385-386,818) In the evening ofJuly 11,2009 Brunner, Benjamin and Brown wentto the Hazelwood section ofthe City ofPittsburgh. In the early morning hours ofJuly 12th they were returning to their Mt. Oliver apartment building when Benjamin saw Kucsmas walking along Brownsville Road in the Carrick section of the city. (TT 287, 342) They were traveling in a pick-up truck driven by Benjamin that belonged to a neighbor James House. (T.T. 285) Upon observing Kucsmas, Benjamin stated, "Fucking Amy", and pulled the truck over. (T.T. 287,343) Brunner and Benjamin got out ofthe truck and both men angrily confronted Kucsmas about the stolenmoney and ID. Kucsmas denied taking the money and eventually became so frightened during the confrontation that she urinated on herself. (TT 209-216, 287-292, 387) Brunner took Kucsmas' ,purse and searched

'5Thedesignation "T.T"followed by numerals refers to Trial Transcript ofApril 4-14, 2010, which 'is comprised oftwo (2) volumes. 5Circulated 01/06/2015 03:22 PM
through it until he found the ID that had been stolen. (T.T. 213, 290, 347,387-388) Once Brunner discovered his ID, he and Benjamin told Kucsmas that she was going with them, and they began pulling her toward the truck. (T.T. 214) Kucsmas initially resisted, but Brunner assured her that everything would be okay and that she should come home with them; Kucsmas ceased her resistant andgot into the truck, followed by Brunner and Benjamin. (T.T. 214, 291) Benjamin drove to an isolated and hilly area of a nearby park where Kucsmas was ordered out ofthe truck. (T.T. 294, 394) Brunner and Benjamin again angrily confronted Kucsmas about the money and repayment, threatening to throw her over the hill. (T.T. 295-296, 397- 401) Kucsmas was scared and crying, assuring the men that she would pay the money back. (T.T. 296-297) Kucsmas was ordered back into the truck whereupon they drove back to their apartment building. (T.T.298-299) Once there Brown was ordered by Brunner to take Kucsmas by the hand to prevent her from fleeing, and Kucsmas was escorted to Brunner's apartment by Brunner, Benjamin, and Brown. (T.T. 301) Once in the living room, Benjamin behan yelling at Kucsmas about the money and made her take offher clothes whereupon he retrieved $60 from her "privatearea", which intum was given to Brunner. (T.T. 413, 425-427) Brunner, now armed with a handgun, and Benjamin begin to beat and yell at Kucsmas. (T.T. 304,415, 845-849) During this time Brunner cocked the weapon and fired a shot into the floor of the apartment. (T.T. 304, 415) Brown retreated to her bedroom, but heard Brunner and Benjamin continuethe beating, as well as Kucsmas pleading with thetwo men to stop. (T.T. 306, 845-848) Eventually the beating stopped and Kucsmas was ordered to go to the bathroom and shower. (T.T. 307, 849) While Kucsmas was in the bathroom Brunner and Benjamin had a discussion regarding the serious nature ofthe injuries they had inflicted on her, and they came to an agreement that she could not leave the apartment because of that. (T.T. 310, 418, 852) When Kucsmas finished showering Brown witnessed Brunner go into the bathroom and help Kucsmas out ofthe shower. (T.T. 311) As Kucsmas began to walk out ofthe bathroom Brown saw Brunner put his .arm around her neck from behind, and Benjamin approach her from the front. 

### (IT. 311., .327, 855) Brown thenput her head under the covers ofher bed, but she heard Kucsmas struggling and gasping 6Circulated 01/06/2015 03:22 PM

for air. (T.T. 311) Kucsmas was punched in the head, which knocked her to the bathroom floor. As she lay there her chest was stomped on, and bloody foam oozed out ofher mouth and nose. (TT. 855) When the struggling and gasping stopped, Brown heard Brunner remark to Benjamin, "she fought hard". (T.T. 311, 368) Brown took her head out from under the covers and saw Kucsmas laying motionless on the bathroom floor with Brunner and Benjamin standing around her (T.T. 312) Brunner and Benjamin picked Kucsmas up and laid her on the floor in front of Brown's bed. (TT 313) Brown was ordered to go outside and make certain that no one was .around. (T.T. 313) Brunner went.to the basement ofthe building and returned with a roll ofcarpet. (TT558-560, 857-862) Brunner and Benjamin rolled Kucsmas' body in the carpet and placed her in the back ofthe pick-up

. truck. (T.T. 865-868) At Benjamin's suggestion they then drove to

Hunter Park in Wilkinsburg Borough Where the body was left in a weeded/wooded area. (T.T. 868) Benjamin was familiar with this area because he grew up nearby. When Brunner returned to his apartment he awakened Brown and told her that .they had left Kucsmas behind a dumpster, and he planned to go back and bum the body. (T.T. 317, 319) Brown was instructed to clean up some blood spots on the living room carpet, as well as some pieces of cut carpet that Kucsmas' body had been wrapped in. (T.T 317-318,419-420) Brunnerinstructed Brown that if she were ever questioned by the police, that she was to acknowledge the confrontation with Kucsmas on the street and the return with her to the apartment building, but to inform the police that upon their return they went their separate ways and Kucsmas never went into Brunner's apartment. (TT. 324) On July 23, 2009 a tree cutting crew was dumping wood chips at Hunter Park, when they discovered the carpet and partially decomposed body of Amy Kucsmas dumped by Brunner and Benjamin eleven (II)days earlier. CTT. 71-73, 89, 96) The medical examiner was not able to determine the exact cause of death due to the advanced stage of decomposition, however there were multiple areas ofblunt force trauma to the bodyincluding broken ribs and head trauma. (T.T. 140-142) Given all the circumstances presented, including the trauma to the body and where and how the body was found, the pathologist concluded that the manner·ofdeath was homicide. (T.T. 141-146, 167)
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### Superior Court Memorandum Opinion, January 18, 20l3, pp. 1-4, quoting Trial Court Opinion, 1120112, 

### at 3-8. DISCUSSION An appellate court's role in reviewing PCRA appeals is "limited to determining whether the findings of the PCRA court are supported by the record and free from legal error." Commonwealth v. Johnson, 

### 966 A.2d 523, 532 (Pa. 2009). The scope of review is .limited to the PCRA court's findings and the evidence of record, which are to be viewed in the light most favorable to the Commonwealth. Commonwealth v. Koehler, 

### 36 A.3d 121, l31 (Pa. 2012). A denial will notbe disturbed unless it is found thatthe certifiedrecord does not support the PCRA court's findings. Commonwealth v. Gandy, 

### 38 A.3d 899, 902 Pa. Super. 2012). The law surrounding dismissing a PCRA Petition without a hearing has been statedthusly: 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 reversal ofa PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of 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. We stress that an evidentiary hearing is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness.
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Commonwealth v. Roney, 

### 79 A.3d 595, 604-605 (Pa. 2013) (citations and quotations omitted). 1. 

### Appellant first claims that the PCRA Court erred in denying his claim of ineffective assistance ofcounsel for failing to call character witnesses based on the argument that their testimony would have raised a reasonable doubt as to culpability and the degree ofhomicide charged. This claim is without merit. The standard ofreview for ineffective assistance of counsel claims is well settled: In evaluating claims of ineffective assistance of counsel, we presume that counsel is effective. To overcome the presumption of effectiveness, Appellant must establish three factors: first that the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that Appellant was prejudiced. Counsel's assistance is deemed constitutionally effective once this Court determines that the defendant has not established anyone ofthe prongs of the ineffectiveness test. Commonwealth v. Rolan, 

### 964 A.2d 398, 406 (Pa. Super. 2008) (citations and quotations omitted).. When the claim of ineffective assistance of counsel is based
on the failure to call a potential witness, petitioner must establish that: "(1) 

### the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, Or 

### shouldhaveknown of, the existence ofthe witness; (4) the witness was willing to testify for the defense; and (5) the absence of .the testimony of the
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### witness was so prejudicial as to have denied the defendant a fair trial." Commonwealth v. Sneed, 

### 45 A.3d 1096, 1108-1109 (Pa. 2012). Accordingly, "counsel will not be found ineffective for failing to call a witness unless the petitioner can show that the witness's testimony would have been helpful to the defense." Sneed, 

### 45 A.3d at 1109. Here, the jury heard substantial evidence connecting Appellant to the kidnapping and murder of Amy Kucsmas, as well as the subsequent attempted cover-up. This evidence included the testimony of Appellant and Appellant's girlfriend. While Appellant had several witnesses available to testify to his own good character and the bad character ofhis co-defendant, none of these witnesses would have negated the substantial evidence implicating Appellant. Appellant failed to show that the witnesses would have been helpfulto the defense given the substantial amount of evidence against Appellant and the heinous nature of the
cnmes. Upon reviewing the record, the PCRA Court found that there were no genuine issues ofmaterial fact, that Petitioner was not entitled to post-conviction relief as he had failed to establish prejudice, and no legitimate purpose would be served by a further proceeding. The PCRA Court properly dismissed Appellant's PCRA claimwithout ahearing. See Commonwealth v. Pire/a, 

### 726 A.2d 1026, 1035 {Pa. 1999) (defendantfailed to establish prejudice for counsel's failure to call

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character witnesses during the sentencing hearing, and evidence ofa troubled past might beperceived as an attempt to trivialize the gravity ofthe crime). Appellant's claim is without merit. II. Appellant alleges in his second claim that the PCRA Court erred in denying his claim of ineffective assistance of counsel based on the argument that Appellant's waiver of his right to call character witnesses was involuntary and unintelligent. This claim is without merit. Defendants have the right to call character witnesses in their defense at trial, but may chooseto waive that right as follows: Where the defendantchooses not to call character witnesses, the trial judge shall ascertain from the defendant whether this is a knowing, voluntary and intelligent waiver. A waiver colloquy, on the record, shouldbe conductedbydefense counsel, but may be supplemented by the Court andlor the Attorney for the Commonwealth. 

### In a jury trial, the colloquy shall be held outside the presenceofthejury beforethe defense rests its case. All. 

### C. R. Crill. P. 602.2. Appellant's claim that he involuntarily waived his right to call character witnesses, couched in an ineffective assistance ofcounsel claim, is examined as follows: When a presumptively-valid waiver is collaterally attacked under the guise of ineffectiveness of counsel, it must be analyzed like any other ineffectiveness claim. Such an inquiry is notresolvedby the mere absence of an oral waiver colloquy; instead, the analysis must focus on the totality of relevant circumstances. Those circumstances include the defendant's 11Circulated 01/06/2015 03:22 PM
knowledge of and experience with jury trials, his explicit written waiver (if any), and the content of relevant off-therecord discussions counsel had with his client. Commonwealth v. Birdsong, 24 A.3d 319, 339 (Pa. 2011) (in the context ofajury waiver colloquy claim). In order to prevail, Appellant must demonstrate that: (1) he did not understand the right that he was waiving; (2) that counsel caused the failure to understand; and, (3) that but for counsel's ineffectiveness, Appellant would not have waived that right. Birdsong, 24 A.3d at 340. Appellant's claim here is based on the assertion that counsel's ineffective assistance of counsel in failing to call character witnesses caused Appellant to involuntarily waive his right to call character witnesses. As noted above, counsel
was nOLineffective for failing to call character witnesses. See supra pp. 9-10. Further, Appellant's claim that his waiver was involuntary is belied by the record. Following the close of the Commonwealth's case, the Trial Court conducted a thorough oral colloquy with Appellant and his co-defendant regarding their rights to testify and to call character witnesses. (T.T. 665-671). Appellant acknowledged that he understood his right to call character witnesses, that he had discussed if with his attorney, and that it was Appellant's decision alone whether to call character witnesses. (T.T. 669-670). Thus, Appellant stated under oath that it was his decision not to call character witnesses, and that he had not been threatened or promised anything in exchange for making that decision. (T.T. 670-671). Trial

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counsel William Brennan further stated that he believed Appellant was making a knowing, intelligent, voluntary, and fully-informed decision to not call character witnesses. (T.T. 671). Given the oral colloquy, the demeanor ofAppellant, and his concurrent decision to testify in his own defense, the Trial Court found that Appellant had made a knowing, voluntary, intelligent, and fully informed decision notto call character witnesses. The PCRA Courtproperly denied Appellant'S claim that his waiver was involuntary. See Birdsong, 24 A.3d at 341 (defendant failed to establish that ineffective assistance of counsel caused him to waive his right to a jurybased on a bald allegation ofprejudice). Appellant'S claim is without merit. --'eeNCLUSION Based upon the foregoing, thejudgment of sentence imposed by this Court should be affirmed. Bythe Court,

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# 1 Date

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