Commonwealth v. Pander
100 A.3d 626
| Pa. Super. Ct. | 2014Background
- On New Year 2008 Anthony Pander drove to his separated sister’s husband Andreas Gabrinidis’ home; a fight ensued and Gabrinidis died of multiple stab wounds. Pander was tried, convicted of first-degree murder and PIC, and sentenced to life without parole.
- Multiple eyewitnesses saw the attack; two identified Pander at trial (one had earlier misidentified another in a photo). The assailant was seen enter the driver’s side of a white car; Pander drove that car and Dingler rode as the passenger.
- Police processed Pander’s car the night of the homicide and returned it to Pander’s mother; six days later a defense investigator’s photograph showed a stain on the passenger door the officer had not observed. No forensic testing of the stain was done at trial.
- Pander pursued a counseled PCRA petition raising ineffective-assistance claims against trial and appellate counsel (failure to raise juror-removal, burden-shifting/mistrial, Kloiber identification instruction, failure to present/ call certain witnesses and to test the alleged blood). The PCRA court dismissed; this Court affirmed in part, reversed in part en banc review considered.
- The PCRA court’s factual findings were given deference; ineffectiveness claims were analyzed under the three-prong test (arguable merit, reasonable basis, prejudice).
Issues
| Issue | Plaintiff's Argument (Pander) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| 1. Appellate counsel ineffective for not appealing trial court’s refusal to remove juror who became upset viewing victim photos | Juror’s emotional reaction and recent bereavement rendered her presumptively biased; removal should have been sought and raised on appeal | Juror twice said she could be fair; trial court questioned and limited photos; no disqualification so no error and no ineffectiveness | Court: No relief — juror not presumptively biased; decision reviewed for abuse of discretion and counsel reasonably omitted issue |
| 2. Appellate counsel ineffective for not appealing denial of mistrial after prosecutor’s questions suggesting defense should test evidence (burden-shifting/self-incrimination) | Prosecutor’s questions implied defendant had burden to test alleged blood; shift of burden and Fifth Amendment problem; mistrial warranted | Objections were sustained, answers stricken; questions unanswered; jury later instructed on burden; no case where an unanswered question alone required new trial | Court: No relief — objections sustained, no prejudice, jury instructions adequate; counsel not ineffective |
| 3. Trial counsel ineffective for not requesting a Kloiber instruction for eyewitness Shakur Bumpess | Prior misidentification showed unreliability; Kloiber instruction should have been requested | Trial court gave detailed identification instructions covering inconsistencies and prior identifications; witnesses had adequate opportunity to observe | Court: No relief — trial court’s instruction substantially covered Kloiber factors; no prejudice shown |
| 4. Trial counsel ineffective for failing to present evidence/argument that someone else (Dingler) committed the murder | Blood on passenger side and motive for Dingler support third-party-perpetrator theory; counsel should have pursued and presented more evidence | Counsel did advance theory implicating Dingler, cross-examined Dingler, used photos and argued it in closing; evidence was presented, not excluded | Court: No relief — counsel pursued third-party theory; record shows strategic efforts; claim lacks merit |
| 5. Trial counsel ineffective for failing to interview/call four witnesses about Dingler–victim hostility | Witness certifications show they would corroborate hostile relationship and instigation by Appellant’s sister; counsel knew or should have known | PCRA record shows Pander repeatedly waived calling fact witnesses after colloquy; certifications were self-prepared and insufficient to show prejudice | Court: No relief — defendant waived calling witnesses in a knowing colloquy; no arguable merit to ineffective claim |
| 6. Trial counsel ineffective for failing to pursue DNA/testing of alleged blood in car | Testing could have shown Dingler’s blood on passenger side and exculpated Pander | Stain appeared only after police returned car to owner; no proof stain was blood or linked to Dingler; multiple eyewitnesses identified Pander as driver/assailant | Court: No relief — testing would not likely change outcome; speculative and no prejudice shown |
Key Cases Cited
- Commonwealth v. Stewart, 84 A.3d 701 (Pa. Super. 2013) (frames three-prong ineffective-assistance test)
- Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) (ineffective assistance elements)
- Commonwealth v. Hale, 85 A.3d 570 (Pa. Super. 2014) (juror-bias/rehabilitation discussion)
- Commonwealth v. Colon, 299 A.2d 326 (Pa. Super. 1972) (when juror is presumptively biased)
- Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954) (identification-caution instruction authority)
- Commonwealth v. Williams, 899 A.2d 1060 (Pa. 2006) (guidance on defense requests for DNA testing and counsel’s strategic judgment)
- Commonwealth v. McGowan, 635 A.2d 113 (Pa. 1993) (admissibility of evidence pointing to another perpetrator)
- Commonwealth v. Brown, 767 A.2d 576 (Pa. Super. 2001) (witness-certification vs. sworn-affidavit for PCRA hearing)