Opinion
J-S63022-19 No. 746 EDA 2018
01-06-2020
COMMONWEALTH OF PENNSYLVANIA v. MARK ALI Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 2, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011037-2009 BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J. MEMORANDUM BY MURRAY, J.:
Retired Senior Judge assigned to the Superior Court.
Mark Ali (Appellant) appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the factual and procedural history as follows:
On June 9, 2010, a jury convicted [A]ppellant of aggravated assault, firearms not to be carried without a license, carrying firearms on public streets or public property in Philadelphia, possessing instruments of crime, and recklessly endangering another person.[FN]1 Appellant's convictions arose from an incident that occurred on June 30, 2009 in Philadelphia. At that time, [A]ppellant accompanied Augustus Patterson to the home of the victim, [Curtis] Page. Patterson was angry with Page for having sold him bad cocaine. Ultimately, the confrontation resulted in [A]ppellant shooting Page in the leg. Appellant and
Patterson then fled, first in Patterson's red Ford Mustang, and then by both foot and bus.
[FN] 1 18 Pa.C.S.A. §§ 2702(a), 6106(a)(1), 6108, 907, and 2705, respectively.
Commonwealth v. Ali , 2761 EDA 2010, at *1-2 (Pa. Super. Feb. 24, 2012) (unpublished memorandum).
Appellant and Patterson later returned to retrieve Patterson's car. When they saw police surrounding the vehicle, [A]ppellant suggested to Patterson that he report the vehicle stolen, which he did. Later that evening, while police were taking a stolen vehicle report from Patterson, other officers brought Page to the scene. Page identified Patterson as one of his assailants and Patterson was arrested. The next day, Page went to the police station and immediately identified [A]ppellant from a photo array. Appellant was subsequently apprehended.
On August 6, 2010 [A]ppellant was sentenced. The court imposed a sentence of 10 to 20 years' imprisonment for the aggravated assault conviction, which represented the statutory maximum sentence, and was beyond the aggravated range of the Sentencing Guidelines. Concurrent sentences were imposed as to [A]ppellant's other convictions.
On August 16, 2010, [A]ppellant filed a post-sentence motion for reconsideration of sentence. Therein, [A]ppellant asserted that trial counsel failed to provide the court with certain information that may alter the court's sentence. The motion was denied on September 16, 2010.
Appellant appealed to this Court on October 1, 2010; we affirmed his judgment of sentence on February 24, 2012. Id. Appellant filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on August 15, 2012.
On April 9, 2013, Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition on February 3, 2015. Appellant's amended petition included three claims of ineffective assistance by trial counsel. Specifically, Appellant averred that trial counsel was ineffective for 1) "failing to object after being denied the right to fully cross examine [a witness]"; 2) failing to object to the jury instructions; and 3) failing to challenge the discretionary aspects of sentence in a post-sentence motion. On August 25, 2015, Appellant filed a pro se amended PCRA petition raising a legality of sentence claim. Appellant filed a second pro se Amended PCRA petition on August 26, 2015., On February 9, 2016, Appellant filed a counselled "Supplemental Amended Petition under Post-Conviction Relief Act," seeking to add the additional claim that "the sentence imposed pursuant to [a] mandatory statute is illegal in lieu of the decision rendered in Alleyne v. United States , 133 S.Ct 2151 (2013)[,] and Commonwealth v. Newman , [99 A.3d 86 (Pa. Super. 2014) (en banc)].
Appellant filed his pro se amended petitions while represented by counsel. It is well-settled that an appellant does not have a right to proceed both pro se and with the benefit of counsel. Such representation is considered "hybrid" and is prohibited within the Commonwealth. See Commonwealth v. Staton , 184 A.3d 949, 958 (Pa. 2018) (no defendant has a constitutional right to self-representation together with counseled representation "either at trial or on appeal"); see also Commonwealth v. Jette , 23 A.3d 1032, 1036 (Pa. 2011) (citing Pennsylvania's long-standing policy precluding hybrid representation). The policy against hybrid representation is "driven primarily by the problems of competing filings from an appellant and his counsel." Commonwealth v. Glacken , 32 A.3d 750, 753 (Pa. Super. 2011). Accordingly, legal authority supports the conclusion that Appellant's pro se amended petitions are legal nullities, having no effect on the underlying proceedings.
Appellant's August 26, 2015 pro se Amended petition is identical to the pro se petition filed by Appellant on August 25, 2015.
Our Supreme Court "has condemned the unauthorized filing of supplements and amendments to PCRA petitions, and held that claims raised in such supplements are subject to waiver." Commonwealth v. Reid , 99 A.3d 470, 484 (Pa. 2014). Here, Appellant filed a supplemental petition without leave of court. Further, there is no evidence the PCRA addressed the supplemental claim prior to dismissing the petition or in its Rule 1925(a) opinion. See Order Dismissing PCRA Petition, 3/2/18; see also PCRA Court Opinion, 4/24/19. Accordingly, we could find the additional claim raised in Appellant's supplemental petition waived. However, we decline to find waiver because challenges to the legality of sentence cannot be waived. Commonwealth v. Miller , 102 A.3d 988, 996 (Pa. Super. 2014) ( Alleyne challenge to legality of sentence is "not technically waivable").
On November 9, 2017, the Commonwealth filed a motion to dismiss Appellant's petition. On January 16, 2018, the PCRA court issued notice of its intent to dismiss Appellant's PCRA petition without a hearing pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure. Appellant did not file a response to the court's notice, and on March 2, 2018, the PCRA court dismissed Appellant's petition. Appellant filed a notice of appeal. Both Appellant and the PCRA complied with Rule 1925 of the Pennsylvania Rules of Appellate Procedure.
Appellant raises four issues for our review (reordered for ease of discussion):
I. Whether the court erred in not granting relief on the PCRA petition alleging counsel was ineffective[?]
(Answered in the negative by the court below)
II. Whether the court erred in denying the Appellant's PCRA petition without an evidentiary hearing on the issues raised in the amended PCRA petition regarding trial counsel's ineffectiveness[?]
(Answered in the negative by the court below)
III. Whether the trial court erred in imposing a mandatory minimum sentence when the trial judge determined whether the deadly weapon enhancement applied as opposed to a finding beyond a reasonable doubt by a jury[?]
(Not answered by the court the [sic] below)
IV. Whether the court erred in not applying the decision in Alleyne v. United States , 133 S.Ct. 2151 (2013)[,] retroactively pursuant to the "substantive rule" regarding retroactivity announced in Teague v. Lane , 489 U.S. 288 (1989).
Appellant's Brief at 10.(Not answered by the court the [sic] below)
We review the denial of PCRA relief by "examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Busanet , 54 A.3d 35, 45 (Pa. 2012). "Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding." Id.
Appellant's first claim asserts three instances of ineffective assistance of trial counsel (Counsel). First, Appellant argues that Counsel was ineffective for failing to object to the trial court's limitation of counsel's cross-examination. Second, Appellant alleges ineffective assistance because Counsel did not object to the jury instructions. Third, Appellant contends Counsel was ineffective for failing to file a post-sentence motion challenging the discretionary aspects of his sentence.
With respect to ineffective assistance of counsel claims, our Supreme Court has stated:
It is well-settled that counsel is presumed to have been effective and that the petitioner bears the burden of proving counsel's alleged ineffectiveness. Commonwealth v. Cooper , 941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, a petitioner must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance, "that is, a reasonable probability that but for counsel's act or omission, the outcome of the proceeding would have been different." Id. A PCRA petitioner must address each of these prongs on appeal. See Commonwealth v. Natividad , 938 A.2d 310, 322 (Pa. 2007) (explaining that "appellants continue to bear the burden of pleading and proving each of the Pierce elements on appeal to this Court"). A petitioner's failure to satisfy any prong of this test is fatal to the claim. Cooper , 941 A.2d at 664.Commonwealth v. Wholaver , 177 A.3d 136, 144 (Pa. 2018) (citations modified).
Cross-Examination: Failure to Object
In his first ineffectiveness claim, Appellant argues that Counsel was ineffective for failing to object to the trial court's limitation on "cross examining Commonwealth witness Augustus Patterson concerning the facts of his open case." Appellant's Brief at 19. Specifically, Appellant takes issue with the following exchange:
[Counsel]: In Montgomery County you have an open matter for receiving stolen property; correct?N.T., 6/7/10, at 17-48. Appellant contends that Counsel "was attempting to cast Patterson as the actual shooter and wanted to portray his violent nature by exploring the underlying facts of the terroristic threats charge. However, [Counsel] never alerted the trial court to that strategy through an offer of proof." Appellant's Brief at 19. Because Counsel never objected to the court's ruling, Appellant was barred from raising this issue on appeal, and therefore, he avers that Counsel rendered ineffective assistance. Id.
[Patterson]: Yes.
[Counsel]: And that means that you took property of someone else for yourself; correct?
[Patterson]: Yes.
[Counsel]: And you didn't have permission to do that; correct?
[Patterson]: Yes.
[Counsel]: And in doing that, you deceived those people; correct?
[Patterson]: Yes.
[Counsel]: You also have a matter in Montgomery County concerning terroristic threats with the intent to terrorize another person; correct?
[Patterson]: Yes.
[Counsel]: Does that mean that you put someone else in fear?
[The Commonwealth]: Objection.
[Counsel]: I'll rephrase that question.
THE COURT: The objection is sustained and this is the reason: Counsel is permitted to ask this witness Mr. Patterson about these open cases. Now, that means cases that have not been decided. So you may ask questions about it but for a limited purpose to determine whether or not his trial testimony is influenced by having those open cases and if the Commonwealth has promised him anything. But the actual facts of those cases are not our concern.
[Counsel]: I'll phrase it, your Honor.
THE COURT: Yes.
"A trial court has broad discretion to determine whether evidence is admissible," and a trial court's ruling regarding the admission of evidence "will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous." Commonwealth v. Huggins , 68 A.3d 962, 966 (Pa. Super. 2013). In addition, the trial court has broad discretion regarding "both the scope and permissible limits of cross-examination." Commonwealth v. Briggs , 12 A.3d 291, 335 (Pa. 2011). "The trial judge's exercise of judgment in setting those limits will not be reversed in the absence of a clear abuse of that discretion, or an error of law." Id.
The Confrontation Clause in the Sixth Amendment to the United States Constitution provides that all criminal defendants enjoy "the right to confront and cross-examine adverse witnesses." Commonwealth v. Laird , 988 A.2d 618, 630 (Pa. 2010). Moreover, "the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Delaware v. Van Arsdall , 475 U.S. 673, 678 (1986).
Although the right of cross-examination is a fundamental right, it is not absolute. The trial court may place reasonable limits on defense counsel's cross-examination of a prosecution witness "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Van Arsdall , 475 U.S. at 679. "Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer , 474 U.S. 15, 20 (1985).
Here, Appellant has failed to establish that if he had been given the opportunity to further cross-examine the witness that the outcome of the trial would have been different. Commonwealth v. Reed , 42 A.3d 314, 319 (Pa. Super. 2012) ("In order to meet the prejudice prong of the ineffectiveness standard, a defendant must show that there is a 'reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.'"). Appellant's arguments in this regard are in terms of generalities and hypotheticals. See , e.g. Appellant's Brief at 20 ("Because trial counsel simply acquiesced and moved on without argument, thereby waiving Appellant's right to appeal this issue, counsel provided ineffective assistance of counsel."). Thus, Appellant has not established the prejudice prong and his claim of ineffective assistance of counsel on the basis of Counsel's failure to object to the trial court's limitation of cross-examination fails.
Jury Instructions
In his second ineffectiveness claim, Appellant argues that Counsel was ineffective for failing to object to the trial court's denial of his request for a charge concerning perjury by witnesses. In particular, Appellant contends that Curtis Page, the victim, identified Appellant as the shooter. However, Appellant submits that "Page also admitted that he had lied at the preliminary hearing concerning his involvement in the sale of drugs. He gave false statements to the police concerning his involvement in drug sales." Appellant's Brief at 20.
Appellant requested that the trial court instruct the jury concerning the victim's "admission of perjury." Id. Appellant asserted that the "testimony of a perjurer was subject to special scrutiny," and thus an instruction pursuant to Standard Suggested Criminal Jury Instruction 4.06 (certain testimony subject to special scrutiny) was necessary to assist the jury in its deliberations. Id. at 20-21. The trial court denied Appellant's request for a special scrutiny instruction and instead gave a "false in one, false in all" (falsus in uno, falsus in omnibus) and a conflicting testimony instruction. Counsel did not object to the court's given instructions. Appellant maintains that "trial counsel's failure to simply object on the record to the trial court's jury instruction" waived his right to the issue on appeal, and was thus ineffective assistance of counsel. Id. at 21.
We are mindful that:
When evaluating the propriety of jury instructions, this Court will look to the instructions as a whole, and not simply isolated portions, to determine if the instructions were improper. We further note that, it is an unquestionable maxim of law in this Commonwealth that a trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. Only where there is an abuse of discretion or an inaccurate statement of the law is there reversible error.Commonwealth v. Antidormi , 84 A.3d 736, 754 (Pa. Super. 2014). (citations omitted). "The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the [a]ppellant was prejudiced by that refusal." Commonwealth v. Sandusky , 77 A.3d 663, 667 (Pa. Super. 2013).
Appellant's claim lacks merit. Appellant requested the trial court instruct the jury pursuant to S.S.J.I. (Crim) 4.06, which reads:
You should examine closely and carefully and receive with caution the testimony of [name of witness] [any witness] if you find that he or she [was previously hypnotized] [admitted that he or she committed perjury at another trial] [give specific situation].Pa.S.S.J.I. (Crim) 4.06. However, the court refused to do so, and provided two sets of instructions pertaining to the victim's conflicting testimony. The trial court instructed the jury:
False in one, false in all. If you conclude that a witness has testified falsely and did so intentionally about any fact which is necessary to your decision in this case, then for that reason alone
you may, if you wish, disregard everything that witness said. However, you are not required to disregard everything that witness said for this reason: It is entirely possible that a witness testified falsely in one respect but truthfully about everything else. If you find that to be the situation, then you may accept that part of the testimony which you find to be truthful and which you believe and you may reject that part which you find to be false and not worthy of belief.N.T., 6/9/10, at 72.
Likewise, the trial court gave the following instruction on conflicting testimony:
Conflicting testimony. Where there is a conflict in the testimony, the jury has the duty of deciding which testimony to believe. But you should first try to reconcile, that is, fit together any conflicts in the testimony if you can fairly do so. Discrepancies and conflicts between the testimony of different witnesses may or may not cause you to disbelieve some or all of their testimony. Remember that two or more people witnessing an incident may see or hear it happen differently. Also it is not uncommon for a witness to be innocently mistaken in his or her recollection of how something happened. If you cannot reconcile a conflict in the testimony, it is up to you to decide which testimony, if any, to believe and which to reject as untrue or inaccurate. In making this determination, consider whether the conflict involves a matter of importance or merely some detail and whether the conflict is brought about by an innocent mistake or by an intentional falsehood. You should also keep in mind other factors already discussed which go into deciding whether or not to believe a witness. In deciding which of conflicting testimony to believe, you should not necessarily be swayed by the number of witnesses on either side. You may find the testimony of a few witnesses, even of just one witness, is more believable than the other testimony of a greater number of witnesses. On the other hand, you should also consider the extent to which conflicting testimony is supported by other evidence in the case.Id. at 72-73.
Contrary to Appellant's assertion of error, our review of the record reveals that, when taken in its entirety, the jury instructions appropriately reflected the law and adequately prepared the jury to deal with witness inconsistencies. Thus, Appellant has failed to meet his burden of showing that any additional instruction from the trial court would have had any effect on the jury's verdict.
Post-Sentence Motions: Excessive Sentence
In his final ineffective assistance claim, Appellant contends trial counsel was ineffective for failing to file a post-sentence motion preserving his discretionary aspects of sentencing claim for appellate review on direct appeal. Our Court has held that claims implicating the discretionary aspects of sentencing raised in the context of an ineffectiveness claim are cognizable under the PCRA. Commonwealth v. Whitmore , 860 A.2d 1032, 1036 (Pa. Super. 2004), reversed in part on other grounds, 912 A.2d 827 (Pa. 2006) ("[A] claim that counsel was ineffective for failing to perfect a challenge to the discretionary aspects of sentencing is cognizable under the PCRA." (citations omitted)); Commonwealth v. Watson , 835 A.2d 786, 801 (Pa. Super. 2003) ("[A] claim regarding the discretionary aspects of [the defendant's] sentence, raised in the context of an ineffectiveness claim, would be cognizable under the PCRA[.]").
It is well-settled that a discretionary aspects of sentencing claim must be preserved either at sentencing or in a post-sentence motion before the trial court. Commonwealth v. Baker , 72 A.3d 652, 662 (Pa. Super. 2013) (citation omitted). With respect to a claim of ineffective assistance of counsel regarding the failure to file post-sentence motions, our Supreme Court has expressed:
[There is a] distinction between errors which completely foreclose merits review and those which merely "narrow its ambit." Thus, [the Court] [has] held an attorney's failure to file a post-sentence motion preserving a particular sentencing claim "did not operate to entirely foreclose appellate review," but merely "waive[d] those claims subject to issue preservation requirements which were not otherwise properly preserved."Commonwealth v. Rosado , 150 A.3d 425, 432 (Pa. 2016) (citation omitted). "[C]ounsel's failure to file post-sentence motions [does] not fall within the narrow ambit of ineffectiveness claims requiring no finding of prejudice." Commonwealth v. Corley , 31 A.3d 293, 296 (Pa. Super. 2011). Thus, in order to obtain relief on his ineffectiveness claim, Appellant must demonstrate that his sentence was excessive such that counsel may be deemed ineffective in failing to file the post-sentence motion. Id.
In developing his discretionary aspects of sentencing claim, Appellant states:
The Superior Court [on direct appeal] ruled that the issue of discretionary sentence was waived because it was not raised in the court below. It stated that the particular theory on which the challenge to the discretionary aspects of sentence was asserted was not brought to the sentencing court's attention and this was waived because the court was not given an opportunity to reconsider the sentence on the basis stated.Appellant's Brief at 22 (citation omitted).
Counsel's failure to raise this sentencing issue is of arguable merit.
Aside from the bald assertion that his ineffectiveness claim has arguable merit because Counsel failed to specify why his sentence was excessive and a cursory citation to the sentencing guidelines, Appellant fails to develop an argument or present pertinent authority that his claim has arguable merit. Accordingly, Appellant's issue is waived. Commonwealth v. Roche , 153 A.3d 1063, 1072 (Pa. Super. 2017) ("the failure to properly develop a claim renders an issue waived.").
Evidentiary Hearing
Next, Appellant argues that the PCRA court erred in dismissing his petition without a hearing. We have explained:
[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.Commonwealth v. Walls , 993 A.2d 289, 295 (Pa. Super. 2010) (internal citations and brackets omitted). If the PCRA court "can determine without an evidentiary hearing that one of the prongs cannot be met, then no purpose would be advanced by holding an evidentiary hearing." Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008).
Here, Appellant argues that an evidentiary hearing was necessary for him to present evidence to prove the "manifest injustice" that resulted from trial counsel's ineffectiveness. Appellant's Brief at 18. However, and as discussed above, Appellant's ineffectiveness claims are devoid of any meaningful, arguable merit. As we discern no genuine issues of material fact in controversy, no purpose would have been served by a hearing, and thus the PCRA court did not err in dismissing Appellant's petition without a hearing.
Legality of Sentence
We address Appellant's third and fourth issues together because they are interrelated. Appellant argues that he received a mandatory minimum sentence, which is illegal under Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151 (2013). Appellant maintains that "the Alleyne decision [is] a substantive rule," and "it would be fundamentally unfair to grant relief from an illegally imposed mandatory minimum sentence on those who were sentenced after the Alleyne decision, and to leave those who were sentenced prior to languish under a mandatory sentence that was imposed unconstitutional[ly]." Appellant's Brief at 30. Essentially, Appellant asks this Court to apply Alleyne retroactively to cases seeking collateral review.
Appellant's claims lack merit. The Pennsylvania Supreme Court has held that Alleyne does not apply retroactively on collateral review. See Commonwealth v. Washington , 142 A.3d 810, 820 (Pa. 2016) (affirming the denial of PCRA relief where PCRA petition was timely but judgment of sentence became final prior to Alleyne ). As Appellant's judgment of sentence became final on November 13, 2012, and Alleyne was not decided until June 17, 2013, the protections afforded by Alleyne are inapplicable to Appellant.
Likewise, Appellant's contention that Washington was wrongly decided is unpersuasive, and asks this Court to disregard or overturn a controlling precedent issued by a higher court, neither of which is within this Court's province. See Commonwealth v. Edwards , 177 A.3d 963, 971 n.15 (Pa. Super. 2018) ("We, of course, are duty-bound to effectuate [our Supreme] Court's decisional law").
In sum, Appellant's allegations of error do not merit relief. As the PCRA court did not abuse its discretion, we affirm the order dismissing Appellant's petition.
Order affirmed.
P.J.E. Gantman joins the memorandum.
Judge Strassburger files a concurring memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/6/20