Com. v. Fennell, R.
1280 WDA 2015
| Pa. Super. Ct. | Dec 2, 2016Background
- In January 2009 while incarcerated at SCI-Cresson, Robert Fennell struck Corrections Officer Russell Bollinger; the assault was witnessed and captured on surveillance video.
- At nonjury trial Fennell was convicted of two counts of aggravated assault and multiple related offenses; he received an aggregate 10–20 year sentence. Appeals court affirmed convictions; Supreme Court denied allowance of appeal after a nunc pro tunc filing.
- Fennell filed a pro se PCRA petition (May 2014), later amended with appointed counsel, alleging multiple instances of trial counsel Kenneth Sottile’s ineffective assistance and requesting discovery based on a DOJ report of abuse at SCI-Cresson.
- PCRA hearing occurred May 20, 2015; Fennell was the only witness. The PCRA court denied relief on July 27, 2015, finding Fennell failed to show counsel’s performance lacked a reasonable basis or caused prejudice.
- Fennell raised seven issues on appeal: challenge to summons versus warrant for preliminary hearing, several IAC claims (failure to call witnesses, inadequate investigation, failure to challenge surveillance video, poor impeachment of victim, conflict of interest), and denial of PCRA discovery. Superior Court affirmed denial of PCRA relief and quashed the duplicative appeal.
Issues
| Issue | Fennell's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Summons vs. warrant for preliminary hearing | Rule 509 required a warrant for felony charges; summons violated rights | Claim was waived and not meaningfully developed | Waived; PCRA court correctly rejected it |
| Failure to call Ms. Alderman as witness (IAC) | Alderman would corroborate prior abuse and justify Fennell’s actions; counsel did not subpoena her | Fennell produced no proof Alderman existed, was willing, or would help; counsel presumed effective | IAC claim failed for lack of evidence that counsel had no reasonable basis or that Fennell was prejudiced |
| Failure to investigate abuse allegations (IAC) | Counsel did not investigate prior officer abuses at SCI-Cresson | Record shows counsel sought DOC records; Fennell offered only speculation | IAC claim failed; Fennell’s own filings undermined his assertion |
| Failure to suppress/limit surveillance video (IAC) | Video incomplete/misleading; counsel should have moved to limit it | No evidence video was manipulated; suppression claim lacked merit | IAC claim failed because underlying suppression issue was unsupported |
| Failure to impeach victim about prior interactions (IAC) | Counsel did not press Bollinger about past contacts/abuse | Counsel did ask Bollinger and he denied recollection; no record that further questioning would have produced admissions | IAC claim failed; no showing counsel lacked reasonable basis or prejudice |
| Conflict of interest / counsel withdrawal (IAC) | Counsel had a personal relationship with Bollinger and should have withdrawn | Letter shows a distant, decades-old workplace acquaintance; no active conflict or adverse effect shown | IAC claim failed; no actual conflict or prejudice demonstrated |
| Denial of PCRA discovery based on DOJ report | DOJ report on SCI-Cresson abuse created exceptional circumstances warranting discovery of personnel files, reports, video | DOJ report post-dated incident, targeted seriously mentally ill inmates; Fennell offered no connection and video undermines self-defense theory | Denial affirmed; no exceptional circumstances and discovery would not have shown justification at the moment of the assault |
Key Cases Cited
- Spotz v. Commonwealth, 84 A.3d 294 (Pa. 2014) (governing Strickland/Pierce formulation of IAC review)
- Colavita v. Commonwealth, 993 A.2d 874 (Pa. 2010) (deference to counsel strategy; alternative must be substantially better)
- Ali v. Commonwealth, 10 A.3d 282 (Pa. 2010) (three-prong IAC test derived from Pierce)
- Washington v. Commonwealth, 927 A.2d 586 (Pa. 2007) (requirements to prove counsel ineffective for failing to call a witness)
- Jones v. Commonwealth, 942 A.2d 903 (Pa. Super. 2008) (merit of suppression motion required to support IAC claim for failing to file one)
- Collins v. Commonwealth, 957 A.2d 237 (Pa. 2008) (actual conflict of interest standard: conflicting representation and adverse effect)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)