Com. v. Rickgers (memorandum)

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J-S63017-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL THOMAS RICKSGERS, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2013 WDA 2011 Appeal from the PCRA Order entered on November 28, 2011 in the Court of Common Pleas of Butler County, Criminal Division, No. CP-10-CR-0000153-1994 BEFORE: STEVENS, P.J., MUSMANNO and ALLEN, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: February 12, 2013 Michael Thomas Ricksgers ( Ricksgers ) appeals from the denial of his first Petition for relief pursuant to the Post Conviction Relief Act ( PCRA ). See 42 Pa.C.S.A. §§ 9541-9546. We affirm. The PCRA court has set forth the relevant underlying factual and procedural history in its Opinion, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 11/28/11, at 1-4. On November 28, 2011, the PCRA court denied Ricksgers s amended PCRA Petition. Ricksgers filed a timely Notice of appeal. The PCRA court ordered Ricksgers to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise statement. Ricksgers filed a timely Concise Statement. On appeal, Ricksgers raises the following questions for our review: 1. Did the PCRA court err in concluding that [Ricksgers s] counsel was of [sic] ineffective assistance for failing to explain J-S63017-12 a plea offer made by the district attorney s office prior to trial? 2. Did the PCRA court err in concluding that defense counsel s failure to call a third party witness who had had a similar experience to [Ricksgers] for which he was being tried could not have been the result of defense counsel s strategic plan? 3. Did the PCRA court err in concluding that defense counsel s failure to call [Ricksgers s] mother and other identified witnesses to the stand [did] not demonstrate ineffective assistance of counsel? 4. Did defense counsel s failure to provide testimony demonstrating [that the] victim had recently changed her shift to spend more time with her husband and children resulting in a reduction in pay constitute ineffective assistance of counsel? 5. Did defense counsel s failure to respond properly to [Ricksgers s] notice that [a] member of the jury had hard feelings for [Ricksgers] constitute ineffective assistance of counsel? 6. Did defense counsel s failure to inform [Ricksgers] that he might be sentenced to life in prison without the possibility of parole if convicted by the jury following trial constitute ineffective assistance of counsel? Brief for Appellant at iv (capitalization omitted). This Court s standard of review regarding a PCRA court s order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations and quotation marks omitted). -2- J-S63017-12 In his first claim, Ricksgers contends that his defense attorneys were ineffective for failing to inform him of a plea offer in a timely manner. Brief for Appellant at 2. Ricksgers also argues that he was not informed by his attorneys that he could have been sentenced to life in prison if convicted by the jury. Id. Ricksgers asserts that his testimony, along with his mother s testimony, demonstrates that he was unaware of the potential life sentence until after he was convicted of first-degree murder. Id. at 3, 4.1 Ricksgers claims that there was no reasonable basis for the conduct of counsel and that he was prejudiced by their actions. Id. at 4. Ricksgers further claims that the PCRA court s credibility findings were not supported by the record. Id. The PCRA court has set forth the relevant law, addressed Ricksgers s claims and concluded that the claims are without merit. See PCRA Court Opinion, 11/28/11, at 4-6, 8-10; see also N.T., 7/21/11, at 90-91 (wherein Ricksgers testified that he was informed about the plea offer and rejected the offer). We decline Ricksgers s invitation for this Court to re-weigh the evidence in his favor. See Commonwealth v. Spotz, 47 A.3d 63, 112 (Pa. 2012) (stating that appellate courts will defer to the credibility determinations of the PCRA court, where such findings have support in the record). Moreover, Ricksgers has not cited to any pertinent case law that 1 We note that this claim is raised as the sixth question in the Statement of Questions Presented. However, because Ricksgers argues this claim as part of his first contention in the Argument section, we will address the claim here. -3- J-S63017-12 would support his claims. See Pa.R.A.P. 2119(a). Thus, we adopt the sound reasoning of the PCRA court for the purpose of this appeal. See PCRA Court Opinion, 11/28/11, at 4-6, 8-10. In his second claim, Ricksgers contends that his attorneys failure to present Mary Hallman ( Hallman ) as a witness undermined the truthdetermining process and caused him prejudice. Brief for Appellant at 5, 7. Ricksgers argues that Hallman would have testified that she slept with a loaded gun and, on one occasion, had accidently fired it while she slept. Id. Ricksgers asserts that his counsel failed to investigate Hallman and failed to inform Ricksgers of Hallman s existence. Id. Ricksgers claims that Hallman was not a nut case, but a professional who had sleep disorders. Id. at 6. Ricksgers has not cited to any pertinent case law, other than the requirements to prove ineffective assistance of counsel, to support his claims. See Pa.R.A.P. 2119(a). The PCRA court has set forth the relevant law, addressed Ricksgers s claim and determined that it is without merit. See PCRA Court Opinion, 11/28/11, at 6, 10-14. We adopt the sound reasoning of the PCRA court for the purpose of this appeal. See id. at 10-14. In his third claim, Ricksgers contends that his attorneys should have called his mother, Nancy Buzzella, as a witness at trial to rebut the Commonwealth s case-in-chief. Brief for Appellant at 7-8. Ricksgers also takes issue with the defense witnesses presented by his attorneys. Id. at 9- -4- J-S63017-12 11. Ricksgers argues that the attorneys had no idea what they were doing[.] Id. at 11. In his sixth claim in the argument section, Ricksgers contends that his trial counsel was ineffective for failing to present several witnesses who could refute the Commonwealth s theory that the victim had negative feelings toward guns. Id. at 17, 18-19. Ricksgers argues that counsel should have presented witnesses who would have testified that the victim owned a gun and knew how to use it. Id. at 17-18.2 The PCRA court has addressed Ricksgers s claims and determined that they are without merit. See PCRA Court Opinion, 11/28/11, at 14-16. We adopt the sound reasoning of the PCRA court for the purpose of this appeal. See id. We note the following as an addendum. With regard to Ricksgers s claim pertaining to the defense witnesses presented at trial, Ricksgers did not raise this claim in his PCRA Petition. appeal. Thus, this claim is waived on See Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa. 2007) (stating that claims not raised in PCRA petition are waived). In any event, Ricksgers has not demonstrated that he was prejudiced by his attorneys actions in presenting the witnesses in question for the defense. Based upon the foregoing, Ricksgers is not entitled to relief on his third claim raised on appeal. 2 We note that this claim was raised as part of the third question in the Statement of Questions Presented. -5- J-S63017-12 In his fourth claim, Ricksgers contends that his attorneys were ineffective for failing to provide testimony that the victim had changed her work schedule to spend more time with Ricksgers. Brief for Appellant at 1112. Ricksgers argues that this testimony would have demonstrated that the victim did not want to get away from Ricksgers. Id. at 12. The PCRA court has addressed this claim and determined that it is without merit. See PCRA Court Opinion, 11/28/11, at 19-22. We adopt the sound reasoning of the PCRA court for the purpose of this appeal. See id. In his fifth claim, Ricksgers contends that his trial counsel was ineffective for failing to remove a juror who Ricksgers indicated had a bias against him. Brief for Appellant at 14. Ricksgers alleges that he had worked for the juror briefly and quit the job before its completion. Id. Ricksgers asserts that he was prejudiced by the failure to remove the juror, as the juror could have impacted the entire jury s decision in the case. Id. at 15. Ricksgers claims that the PCRA court could not determine, with certainty, the impact that juror had on the outcome of the trial. Id. at 15-16. The PCRA court has addressed this claim and determined that it is without merit. See PCRA Court Opinion, 11/28/11, at 23-25. We adopt the sound reasoning of the PCRA court for the purpose of this appeal. See id. Based upon the foregoing, the PCRA court did not err in denying Ricksgers s PCRA Petition. Order affirmed. -6-

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