Com. v. Harmer, S.
Com. v. Harmer, S. No. 1642 MDA 2016
| Pa. Super. Ct. | Jun 16, 2017Background
- Stephen Harmer was convicted by jury of second-degree murder, robbery, burglary, and related conspiracy charges for the killing of Douglas Herr; sentenced to life without parole. Convictions affirmed on direct appeal.
- At trial Harmer’s co-defendant Cody Wunder testified for the Commonwealth; Cody had pleaded guilty to second-degree murder and received life without parole. Kyle Wunder also testified for the defense but asserted his Fifth Amendment privilege for part of his testimony; his prior statement contradicted Cody on timing of the shooting.
- Harmer’s trial counsel conceded Harmer participated in the burglary/robbery conspiracy and argued the killing was separate and done in retaliation by the Wunder brothers, supporting a second-degree murder theory (not first-degree or as an act in furtherance of the conspiracy).
- At the PCRA hearing Harmer argued trial counsel was ineffective for (1) failing to request the accomplice-accomplice credibility jury instruction (Pa. Std. Jury Instr. (Crim.) 4.01), (2) failing to move to exclude or limit testimony about Harmer’s drug use/sales or require a Pa.R.E. 404(b) notice, (3) failing to object to testimony bolstering Cody (plea and medical records), (4) failing to call character witnesses, and (5) failing to object to alleged hearsay statements outside the scope of the conspiracy.
- Trial counsel testified his choices were strategic: he wanted the jury to accept most of Cody’s account but dispute timing; he thought references to drug activity were minor given Harmer’s admission to the conspiracy and that limiting or highlighting those references could be counterproductive; he also considered Cody’s plea/medical records helpful to show impairment or relative culpability.
- The PCRA court found counsel’s explanations reasonable tactical choices, concluded Harmer failed to prove arguable merit and prejudice for his ineffective-assistance claims, and dismissed the PCRA petition. The Superior Court affirmed.
Issues
| Issue | Harmer's Argument | Commonwealth/Trial Counsel's Argument | Held |
|---|---|---|---|
| 1. Failure to request accomplice credibility instruction (Pa. Std. Jury Instr. (Crim.) 4.01) | Cody was an accomplice and testified adversely; instruction should have been requested to caution jury about accomplice testimony | Counsel strategically declined because defense conceded much of Cody’s testimony and relied on attacking timing; instruction would have conflicted with theory and also applied to Kyle | Court: No ineffectiveness — strategic decision reasonable and not prejudicial |
| 2. Failure to move in limine/object to testimony about drug use/sales and to require Pa.R.E. 404(b) notice | Drug testimony portrayed Harmer as having criminal propensity; counsel should have excluded it or sought curative relief | Counsel viewed drug references as minor and strategically declined to highlight them, given Harmer’s admitted conspiracy participation | Court: No ineffectiveness — reasonable trial strategy and no prejudice given admissions and overwhelming evidence |
| 3. Failure to object to alleged bolstering (Cody’s plea and medical records) | Introducing plea and medical records on direct improperly bolstered Cody’s credibility | Counsel considered these items helpful: plea showed Cody’s greater culpability; medical records supported a claim Cody’s memory was impaired | Court: No ineffectiveness — counsel had reasonable tactical bases and no reasonable probability of different outcome |
| 4. Failure to call character witnesses and to object to hearsay outside conspiracy scope; cumulative error claim | Character witnesses could show nonviolent reputation; hearsay statements by co-conspirator were beyond scope; cumulative errors deprived fair trial | Counsel avoided character evidence to prevent attention to defendant’s silence and because it conflicted with admitted conspiracy; hearsay was within conspiracy scope and/or cumulative of defendant’s statements | Court: No ineffectiveness on these grounds; cumulative error fails because individual claims lack merit/prejudice |
Key Cases Cited
- Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012) (standard of review for PCRA dismissal)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance-of-counsel test and deference to reasonable strategic choices)
- Commonwealth v. Treiber, 121 A.3d 435 (Pa. 2015) (counsel presumed effective; not ineffective for failing to take futile actions)
- Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011) (when accomplice instruction is required)
- Dutton v. Evans, 400 U.S. 74 (1970) (admission of co-conspirator statements made in furtherance of conspiracy)
- Commonwealth v. Cook, 952 A.2d 594 (Pa. 2008) (prior consistent statements admissible only after impeachment)
- Commonwealth v. Foy, 612 A.2d 1349 (Pa. 1992) (erroneously admitted evidence harmless when cumulative of other untainted evidence)
- Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999) (objections to conspirator statements may be futile if statements are admissible)