OPINION BY PLATT, J.:
Appellant, Keyon Tyrell Freeland, appeals pro se from the order denying his first petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541-9546. Counsel has filed a
Appellant's conviction arose out of an incident on January 8, 2011, when he shot at Kyree Maxfield and Ja'Quinn Barnes, seriously wounding Maxfield, but missing Barnes. The attack was apparently in retaliation for the shooting of Appellant's friend, Ayon Coleman, at a party which Maxfield and Barnes had also attended earlier the same evening. After stopping Maxfield and Barnes on the street and questioning them, Appellant pulled out two guns and opened fire, saying, "Someone has to pay[.]" (N.T. Trial, 12/06/11, at 125; see also id. at 127).
Maxfield received four shots to his leg, two rupturing his femoral artery and femoral vein, as well as a gunshot wound to his left hand, apparently received as a defensive wound when he tried to shield his head from the barrage of bullets. (See id., at 157-58). The attending trauma surgeon, Keith David Clancy, M.D., accepted without objection as an expert in trauma, surgery, and critical care, testified at trial that Maxfield would have died from bleeding or sepsis in the leg without immediate surgery. (See id., at 154, 159, 160).
From his hospital bed, Maxfield identified Appellant as his assailant in a color photo array. Appellant's photo was apparently tinged in red. Nevertheless, at trial Maxfield denied that Appellant was the shooter, claiming he was shot by somebody from a local mall. (See N.T. Trial, 12/07/11, at 341-42).
A few days after the shooting, on January 12, 2011, police attempted to stop Appellant while he was driving a stolen vehicle without a license. He fled. The police pursued him in a high speed chase. When he crashed the vehicle into a telephone pole, he tried to escape on foot. As Appellant ran, he dropped two handguns to the ground. The police video recorded the entire incident on the dashboard camera of their patrol car. The Commonwealth played the video for the jury at trial.
Shortly after the trial judge adjourned the court session, excused counsel and sent the jury to begin deliberations, the jury sent out a question, requesting to see a copy of the trial transcript. (See N.T. Trial, 12/08/11, at 426-27). The trial judge replied, without bringing counsel back, that the jury had to rely on its memory of the testimony. The judge subsequently explained this action on the record, with counsel present, and asked if either counsel had any objections or wanted to supplement the record. (See id., at 427). Both declined. (See id.).
On December 8, 2011, a jury convicted Appellant of attempted homicide and related offenses. (See id., at 431). Specifically, the jury convicted Appellant of the attempted homicide of Maxfield; aggravated assault (causing serious bodily injury) of Maxfield; and illegal possession of a firearm. The jury acquitted Appellant of the attempted homicide of Barnes, and aggravated assault (serious bodily injury) of Barnes.
On February 17, 2012, the court sentenced Appellant to an aggregate term of not less than fourteen nor more than twenty-eight years' incarceration in a state correctional institution. Appellant filed a post-sentence motion which the trial court denied.
In particular, this Court found the claim of error for playing the video waived for failure to object at trial. (See id. at 9). However, the Court added in a footnote that even if the claim had been properly preserved for appeal, it would fail because the evidence was relevant to show consciousness of guilt, with the probative value outweighing the danger of unfair prejudice. (See id. at 9 n.7).
On March 4, 2013, Appellant filed a pro se petition for PCRA relief. The PCRA court appointed counsel, who filed an amended petition on April 24, 2013.
After a hearing on September 25, 2013, the PCRA court denied relief from the bench. The court followed up with a written order denying relief, which also explained the reasons for its denial.
On March 13, 2014, this Court remanded the appeal back to the PCRA court for a determination of whether counsel had abandoned Appellant by failure to file a brief. (See Order, per curiam, 3/13/14). After a hearing, the PCRA court found that counsel had drafted a Turner/Finley letter, but because of an office breakdown in communication, inadvertently failed to file and serve it in a timely fashion. (See N.T. Hearing, 3/27/14, at 1-4; see also
On April 4, 2014, Attorney McCabe filed a petition to withdraw with this Court, attaching his Turner/Finley "no merit" letter, (as originally addressed to Appellant), with notice to Appellant that he had the right to proceed pro se or retain private counsel. Appellant filed an application for relief on April 29, 2014, and his pro se response to the Turner/Finley letter on May 2, 2014. Appellant also requested an extension to file a "cross-appeal" in support of his opposition to counsel's petition to withdraw. (Application for Extension of Time, 7/02/14).
On August 4, 2014, this Court granted Appellant a thirty day extension to file a response to counsel's petition, as requested, and to file a brief on the merits of the appeal. (See Order, per curiam, 8/04/14). When the original extension period had expired, this Court granted Appellant an additional fifteen days' extension, with the proviso that no additional extensions would be granted. (See Order, 9/08/14). Appellant has now "timely" filed a pro se brief in response to counsel's petition to withdraw. (See Appellant's Brief, filed 9/10/14).
Appellant's brief raises three questions:
(Appellant's Brief, at 4).
Before we may review the merits of Appellant's claims, we must determine if counsel has satisfied the requirements to be permitted to withdraw from further representation.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super.2012), appeal denied, 619 Pa. 714, 64 A.3d 631 (2013) (footnote omitted).
Here, our review of the hearing transcript confirms that the PCRA court's recommendation on the question of counsel's "abandonment" of Appellant is supported by the findings of record. We agree with the PCRA court's recommendation and accept counsel's Turner/Finley letter nunc pro tunc.
We also find that counsel has substantially complied with the requirements of Turner/Finley and their progeny, detailing his review of the record and his conclusion that Appellant's claims are meritless. Counsel also notified Appellant, as directed by the PCRA court, and furnished him with a copy of his "no merit letter," advising him of his right to proceed pro se or to retain private counsel. Accordingly, we will grant counsel's petition to withdraw.
Next, we proceed to our independent review of Appellant's claims.
Our standard and scope of review for the denial of a PCRA petition is well-settled.
Commonwealth v. Spotz, ___ Pa. ___, 84 A.3d 294, 311 (2014) (citations and internal quotation marks omitted).
Id. at 303 n. 3. Furthermore,
Id. at 311-12 (most case citations, internal quotation marks and other punctuation omitted). "Counsel's assistance is
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 146 (2012) (case citations, internal quotation marks and other punctuation omitted). This Court analyzes PCRA appeals "
Our Supreme Court has explained:
Gribble, 580 Pa. at 676, 863 A.2d at 472 (emphasis in original). Id. at 315.
Finally, we note that:
Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa.Super.2003), appeal denied, 583 Pa. 695, 879 A.2d 782 (2005).
Here, too, Appellant's pro se brief substantially fails to conform to the basic requirements of appellate advocacy. Most notably, Appellant cites, but apparently misapprehends our standard and scope of review. We review the PCRA court's findings of fact in the light most favorable to the Commonwealth as verdict winner to determine if they are supported by the record. See Spotz, supra at 311; see also Rykard, supra at 1183. We review the PCRA court's conclusions of law for specific legal error. Appellant's mere general disagreement with the findings of fact or the result does not establish his right to PCRA relief. Citation of caselaw for general principles without developing an argument to establish specifically how they apply to this appeal does not prove legal error.
Furthermore, as ably explained by counsel in his Turner/Finley letter, directly addressed to Appellant, Appellant must prove each of his claims of ineffectiveness under the three-pronged Pierce test to merit relief. (See Turner/Finley letter, 1/10/14, at 3). "Counsel's assistance is
With these principles in mind, we review Appellant's issues.
Appellants' first two issues both address abandonment. Initially, Appellant challenges the PCRA court's conclusion that counsel did not abandon his client. (See Appellant's Brief, at 8-10). To prevail on this claim, Appellant had to show that the court's findings were not supported by the record "viewed in the light most favorable to the prevailing party at the trial level." Spotz, supra at 311. Therefore, mere disagreement with the court's conclusion is not enough. Appellant fails to prove his claim by a preponderance of the evidence. Appellant's first claim fails.
Next, Appellant's second question, which erroneously assumes the conclusion of his first question (that PCRA counsel abandoned him, despite the PCRA court finding to the contrary), merits no relief. Counsel did not abandon Appellant.
Additionally, Appellant argues that counsel's "no merit" letter was deficient. (See Appellant's Brief, at 11-17). Appellant's reliance on counsel's perceived error (that Appellant's de facto concession of guilt at the PCRA hearing virtually precluded PCRA relief) is misplaced, and meritless.
Counsel's assessment merely articulated the unassailable conclusion that Appellant, in the face of his admission of the shootings, could not meet his burden to prove that any alleged claims of ineffectiveness by trial counsel "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Spotz, supra at 311-12, (citing 42 Pa.C.S.A. § 9543(a)(2)(ii)). Counsel's assessment was correct. As we have already noted, the PCRA court properly decided that
Finally, in his third question, Appellant argues he has meritorious issues. (See Appellant's Brief, at 23-36). Here, Appellant patently fails to comply with the Rules of Appellate Procedure. His catch-all grab bag of undeveloped claims are not set forth in the statement of questions involved and not fairly suggested thereby. See Pa.R.A.P. 2116(a). Therefore, all of Appellant's asserted issues are waived.
Moreover, they would not merit relief. Common to all these claims, Appellant fails to plead and prove the three Pierce prongs. Furthermore, several of Appellant's key issues, such as the photo line-up, claimed deficiencies in the identification from a photo array, and the playing of the chase video, were previously raised on direct appeal. This Court has already decided that they have no merit. Counsel cannot be faulted for declining to raise a meritless claim. "[I]t is axiomatic that [trial] counsel will not be considered ineffective for failing to pursue meritless claims." Commonwealth v. Charleston, 94 A.3d 1012, 1024 (Pa.Super.2014) (citations omitted).
In any event, rather than develop an argument to meet the Strickland/Pierce test, Appellant's meandering and unfocused brief largely reiterates arguments previously made, in effect inviting this Court to engage in an impermissible reweighing of much of the evidence previously presented. We decline to do so. None of Appellant's claims merit relief.
Moreover, it bears noting that Appellant conceded to the prosecutor in the PCRA hearing that he shot at the victims. (See N.T. PCRA Hearing, 9/25/13, at 34-35; see also Appellant's pro se Brief, at 16). However, Appellant argued that he lacked the intent to kill because he only shot the victim in the leg:
(N.T. PCRA Hearing, 9/25/13, at 43-44; see also Commonwealth's Brief, at 7-8).
Appellant argues that "[a] concession of guilt does not, per se, foreclose prisoner access to Pennsylvania's PCRA[,]" citing to the PCRA itself and to Commonwealth v. Haun, 613 Pa. 97, 32 A.3d 697, 705 (2011) ("We hold that a concession of guilt does not, per se, foreclose prisoner access to the PCRA.").
Here, none of the assertions raised by Appellant support this claim. To the contrary, Appellant fails to develop any argument or offer citation to pertinent authority which would support the conclusion that the deficiencies he alleges undermined the truth-determining process.
In addition to the claims already reviewed, Appellant asserted in his pro se rebuttal to the petition to withdraw, that PCRA counsel was ineffective for his purported failure to raise the issue of trial counsel's failure to object to the trial court's answer to a jury question outside of the presence of counsel. (See Petitioner's Rebuttal, at 6).
This claim fails all three of the Pierce prongs. It lacks arguable merit. Counsel had an obvious reasonable strategic basis not to object. And Appellant fails to show prejudice.
For supporting authority, Appellant relies on Argiro v. Phillips Oil Co., 422 Pa. 433, 220 A.2d 654 (1966).
Id. at 736 (emphasis added) (citations omitted).
Here, Appellant fails to distinguish between the line of authority addressing the request for instruction, or the reiteration of instructions, which our Supreme Court has held to implicate protection of the constitutional right to counsel, (see, e.g., Commonwealth v. Johnson, 574 Pa. 5, 828 A.2d 1009, 1015-16 (2003)) (prejudice presumed when defendant denied counsel during reiterative jury instructions), and non-instruction communications with the jury. See e.g., Bruckshaw v. Frankford Hosp. of City of Philadelphia, 619 Pa. 135, 58 A.3d 102, 115 n. 8 (2012) (noting, inter alia, that Bradley "eliminated a presumption of prejudice in a case involving unauthorized contact between a judge and the jury.").
In this case, the trial court's communication, consistent with the applicable rule of criminal procedure, had nothing to do with instructions to the jury. The jury did not request an instruction on this issue, and the trial court did not give one. The trial court did no more than inform the jury that its request for a copy of the trial transcript was not permitted. The trial court was correct. See Pennsylvania Rule
Because Appellant's claim is without arguable merit, trial counsel had a reasonable basis for declining to object. Accordingly, PCRA counsel had no basis to assert trial counsel's purported ineffectiveness. Furthermore, Appellant was not prejudiced by the trial court's ruling, which properly followed Pa.R.Crim.P. 646. Appellant's claim does not merit relief.
Finally, Appellant claims denial of due process in the failure of the trial court to appoint new counsel prior to trial. (See Appellant's Brief, at 34-36). This claim against the trial court does not present a cognizable issue under the PCRA. See 42 Pa.C.S.A. § 9543; see also Commonwealth v. Smith, 69 A.3d 259, 266 (Pa.Super.2013), appeal denied, ___ Pa. ___, 83 A.3d 168 (2013) (noting that "`the right to appointed counsel does not include the right to counsel of the defendant's choice.' Rather, the decision to appoint different counsel to a requesting defendant lies within the discretion of the trial court.") (citations omitted).
Moreover, it would not merit relief. The PCRA court confirmed that it would not have granted the request for new counsel based on
To summarize, counsel is presumed effective, and to rebut that presumption, Appellant must demonstrate that counsel's performance was deficient and that such deficiency
Order affirmed. Petition to withdraw granted.
Judgment Entered.
JENKINS, J., joins the Opinion.
DONOHUE, J., files a Concurring Opinion.
CONCURRING OPINION BY DONOHUE, J.:
I agree with the learned Majority that PCRA counsel fulfilled the mandates of Turner/Finley; that the issues raised in Appellant's PCRA petition have no merit; and that Appellant's pro se response to counsel's Turner/Finley letter does not entitle him to relief.
In his first issue raised in his pro se brief, Appellant challenges the PCRA court's finding that PCRA counsel did not abandon him on appeal. The record reflects that after his appointment to represent Appellant, PCRA counsel filed an amended PCRA petition, represented Appellant at the PCRA hearing, filed a notice of appeal from the PCRA court's decision, and filed the court-ordered 1925(b) statement on Appellant's behalf, but then failed to file a brief on appeal. We therefore remanded the case to the PCRA court for a determination of whether counsel abandoned Appellant. Upon hearing PCRA counsel's explanation, the PCRA court entered an order finding that counsel had not abandoned Appellant.
I disagree with my esteemed colleagues that we review the PCRA court's finding on this question in the light most favorable to the Commonwealth. See Maj. Op. at 777 (citing Commonwealth v. Spotz, ___ Pa. ___, 84 A.3d 294, 311 (2014)). I acknowledge that the decision before us was made by the PCRA court and that our oft repeated scope of review for a PCRA court's decision "is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level." Spotz, 84 A.3d at 311. Assuming for the sake of discussion that this is the appropriate scope of review for a question of whether counsel abandoned his client during a then-pending PCRA appeal,
Nonetheless, as the Majority correctly concludes, the record supports the PCRA court's conclusion that counsel did not abandon Appellant. Counsel testified that he drafted a Turner/Finley letter in lieu of an appellate brief but inadvertently failed to send it; testimony that went unchallenged at the remand hearing. See N.T., 3/27/14, at 2-4. The PCRA court found that counsel testified credibly, and the record supports that determination. See Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277, 284 (2011) ("The PCRA court's credibility determinations are binding on this Court when they are supported by the record."); Commonwealth v. White, 557 Pa. 408, 734 A.2d 374, 381 (1999) ("[T]here is no justification for an appellate court, relying solely upon a cold record, to review the fact-finder's first-hand credibility determinations."). Thus, I agree with the Majority that Appellant is not entitled to relief on this issue.
Addressing Appellant's third issue raised in his pro se brief on appeal, wherein he asserts that his claims of trial counsel's ineffectiveness raised in his PCRA petition are meritorious, the Majority finds that (1) Appellant waived this issue pursuant to Pa.R.A.P. 2116(a); (2) the arguments were disposed of on direct appeal, and thus claims of trial counsel's ineffectiveness for failing to raise them before the trial court are meritless; (3) Appellant failed to include arguments addressing the three Pierce prongs required for a finding of ineffective assistance of counsel; and (4) Appellant failed to plead and prove "that his conviction or sentence resulted from the ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Maj. Op. at 779.
I take no issue with the Majority's finding of waiver pursuant to Pa.R.A.P. 2116(a). The specific questions raised in the argument section of Appellant's pro se brief are not stated in the statement of questions involved or fairly suggested thereby. See Pa.R.A.P. 2116(a).
Nor do I disagree with the Majority's conclusion that this Court's resolution of Appellant's direct appeal forecloses a finding of trial counsel's ineffectiveness for the issues raised. On direct appeal, this Court found, in relevant part, that the forensic evidence presented, coupled with the out-of-court identifications of Appellant as the shooter, sufficiently proved Appellant's guilt. Commonwealth v. Freeland, 553 MDA 2012, 7 (Pa. Super. Aug. 23, 2012) (unpublished memorandum). We further found that the trial court did not abuse its discretion by admitting into evidence the photographic lineup compiled by the police from which the victim identified Appellant and a video depicting Appellant fleeing from police.
Although not dispositive, I am compelled to note my disagreement with the Majority's statement that Appellant fails to argue the three Pierce prongs relating to his claims of ineffective assistance of counsel. Id. My review of Appellant's pro se brief reveals that he included arguments in support of each of the three Pierce prongs. See Appellant's Brief at 23-34; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987) (requiring that an appellant raising claims of ineffective assistance of counsel prove that each issue has arguable merit; that counsel had no reasonable basis for his action or inaction; and that the appellant suffered prejudice as a result).
I specifically disagree, however, with the Majority's statement that proof that the alleged deficiencies in counsel's performance "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place" is a separate and distinct requirement from the prejudice prong of the Pierce test required to prove a claim of ineffective assistance of counsel. See Maj. Op. at 779. See also 42 Pa.C.S.A. § 9543(a)(2)(ii). To the contrary, in Commonwealth ex rel. Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126 (2001), our Supreme Court held that "the language `so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place' merely represents a statutory adoption of the prejudice standard for Sixth Amendment ineffective assistance of counsel claims as developed in Strickland." Id. at 130. Thus, the prejudice requirement of Pierce is the same as and not in addition to the standard set forth in section 9543(a)(2)(ii).
I agree, though, with the Majority's conclusion that Appellant failed to satisfy his burden of proving that he suffered prejudice as a result of the ineffectiveness alleged. As the Majority observes, Appellant admitted at the PCRA hearing that he shot the victim, denying only that he intended to kill the victim.
For the foregoing reasons, I concur in the learned Majority's decision and would likewise affirm the PCRA court's order and grant PCRA counsel permission to withdraw.
Judgment Entered.
(Amended PCRA Petition, 4/24/13, at unnumbered page 3).
(See Amended PCRA Petition, 8/16/13, at unnumbered pages 2-4).
We further observe that although Attorney McCabe is still the attorney of record, as previously noted, he has petitioned this Court for permission to withdraw from representation.