Opinion
J-S41038-16 No. 1418 EDA 2015
07-11-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MALIK BENNETT, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 14, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0314291-2003 BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Malik Bennett ("Appellant") appeals from the order entered in the Court of Common Pleas of Philadelphia County denying him relief on his first petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S § 9541 et seq. He raises several issues alleging ineffective assistance of counsel and the denial of due process of law. We affirm.
The PCRA court aptly summarizes the procedural and factual history of the case as follows:
On June 1, 2009, following a jury trial [] before this Court [Court of Common Pleas], [Appellant] was found guilty of first degree murder [], carrying a firearm on a public street [], and possessing an instrument of crime (PIC).[] That same day, [Appellant] was sentenced to the mandatory term of life in prison.[]
On June 9, 2009, [Appellant] filed post-sentence motions, which were denied by [the Court of Common Pleas] on October 6, 2009. [Appellant] filed a timely notice of appeal.[] The Superior
Court affirmed [Appellant's] judgment of sentence on April 13, 2011.[] On June 6, 2011, [Appellant] filed an "Application for Leave to File a Petition for Permission to Appeal out of Time," and on January 3, 2012, our Supreme Court denied application for permission to file petition for allowance of appeal nunc pro tunc.[] The Supreme Court's order specifically stated that the application was denied "without prejudice to petitioner to file a Post Conviction Relief Act petition in the Court of Common Pleas of Philadelphia County requesting reinstatement of his allocator rights nunc pro tunc."
On May 1, 2012, [Appellant] filed a timely PCRA petition.[] [Appellant] raised multiple issues in his first PCRA petition, one of which was appellate counsel's ineffectiveness for failing to file a requested petition for allowance of appeal. Following an evidentiary hearing on January 11, 2013, [the Court of Common Pleas] reinstated [Appellant's] right to petition for allowance of appeal nunc pro tunc, and denied the other claims raised by [Appellant]. Subsequently, [the Court of Common Pleas] acknowledged that the other claims should instead have been dismissed without prejudice, and the Superior Court agreed.[] Thereafter, our Supreme Court received [Appellant's] petition for allowance of appeal and denied it.[]
On June 16, 2014, [Appellant] filed an amended PCRA petition, re-raising the other original claims that were raised in his earlier PCRA petition and adding two new claims.[] The Commonwealth filed a motion to dismiss on November 13, 2014, and [Appellant] filed a response to the Commonwealth's motion to dismiss on January 28, 2015. Having reviewed the pleadings and conducted an independent review, [the PCRA court] determined that an evidentiary hearing pursuant to Pa.R.Crim.P. 908 was warranted on only one of [Appellant's] claims.[] Following the evidentiary hearing on May 14, 2015, [the PCRA court] dismissed [Appellant's] claim in open court, and dismissed the remainder of [Appellant's] claims in a written Order that same day.[] This timely appeal followed.
On February 9, 2003, [Appellant] and Ramone Randolph (Randolph) attended a birthday party at Neil's R & R Hideaway (Bar) at 33rd and Reed Streets in South Philadelphia. The party ended in the early morning hours, and, like the other attendees, [Appellant] and Randolph left the Bar and lingered outside. At approximately 2:20 a.m., as Randolph was sitting in the driver's
seat of his car, [Appellant] approached the car and shot six times through the closed driver's side window. Four of the shots hit Randolph, who later died at the Hospital of the University of Pennsylvania.PCRA Court Opinion, filed Sept. 22, 2015, at 1-4.
There was a large number of people who were either standing outside the Bar or sitting in their cars near the Bar when the shooting occurred. Ronnetta Williams was standing in the middle of the street when she heard the gunshots and looked up. She saw [Appellant] running away from the car with a gun in his hand. She then approached the car and saw that Randolph had been shot. Another partygoer, Teahonda Wilkerson, was also standing outside the Bar when the shooting occurred. She heard the shots, looked up, and saw [Appellant] run away from Randolph's car and run through Stinger Park (Park), which was across the street from the Bar. Tanisha Woods had also attended the party and was sitting in a car outside the Bar with her sister-in-law and heard the shots. Moments after the shooting, she got a call on her cell phone that her brother, Anthony Woods, was chasing [Appellant] as he fled the scene of the shooting. Ms. Woods ran up the block and saw her brother in pursuit of [Appellant]. Ms. Woods saw a gun in [Appellant's] hand and was afraid that [Appellant] would shoot her brother, so she yelled to him to stop pursuing [Appellant], and he complied.[]
[Appellant] was also seen running down the street by two witnesses who had not attended the party. Raymond White[, Randolph's cousin], was standing outside of his mother's house near the Bar and across the street from the Park; he heard the shots coming from the direction of the Bar and saw a male wearing a red, white, and blue jacket and wearing a hat running through the Park immediately afterwards. The victim's nephew, Khayree Gay, was also walking near the Bar and saw a man wearing a baseball cap and jacket running through the Park.
Ballistics evidence showed that six shots were fired, all of which were fired from the same gun. Four of these bullets hit Randolph; two shots hit Randolph's upper back, and two hit his left arm. The gun was never recovered.
Appellant raises the following issues for our review:
I. [DID] THE PCRA COURT DEN[Y] DUE PROCESS OF LAW GUARANTEED BY THE STATE AND FEDERAL CONSTITUTIONS WHEN IT DENIED THE PCRA PETITION WITHOUT REVIEWING THE TRIAL TRANSCRIPTS[?]Appellant's brief at 2-3.
II. [DID] THE PCRA COURT DEN[Y] DUE PROCESS AND ERR[] WHEN IT DENIED THE [INEFFECTIVE ASSISTANCE OF COUNSEL] CLAIMS WITHOUT CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES[?]
III. [DID] THE PCRA COURT DEN[Y] DUE PROCESS AND ERR[] WHEN IT FAILED TO CONSIDER THE [INEFFECTIVE ASSISTANCE OF COUNSEL] CLAIM FOR FAILURE TO INTERVIEW ANTHONY WOODS DISTINCT FROM THE FAILURE TO CALL ANTHONY WOODS AS A DEFENSE WITNESS[?]
IV. [DID] THE PCRA COURT DEN[Y] DUE PROCESS AND ERR[] WHEN IT DENIED THE [INEFFECTIVE ASSISTANCE OF COUNSEL] CLAIMS WITHOUT CONSIDERING THEM HOLISTICALLY AS OPPOSED TO ITEM-BY-ITEM[?]
Our standard and scope of review for the denial of a PCRA petition is well-settled:
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied , 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied , 593 Pa. 754, 932 A.2d 74 (2007). "[A] petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact and the petitioner is
not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings." Commonwealth v. Taylor , 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal denied , 597 Pa. 715, 951 A.2d 1163 (2008); Pa.R.Crim.P. 907(1). "A reviewing court on appeal must examine each of the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing." Commonwealth v. Derrickson , 923 A.2d 466, 468 (Pa.Super. 2007), appeal denied , 594 Pa. 685, 934 A.2d 72 (2007).Commonwealth v. Smith , 121 A.3d 1049, 1052 (Pa.Super. 2015).
Further, a PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[i]neffective 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." 42 Pa.C.S.A. § 9543(a)(2)(ii). As we have recognized:
It is well-established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel's error.Commonwealth v . Franklin , 990 A.2d 795, 797 (Pa.Super. 2010) (case citations omitted) (quoting Commonwealth v. Natividad , 595 Pa. 188, 207, 938 A.2d 310, 321 (2007)) (citations omitted).
The PCRA court may deny an ineffectiveness claim if the petitioner's evidence fails to meet a single one of these prongs. Moreover, a PCRA petitioner bears the burden of demonstrating counsel's ineffectiveness.
Appellant first charges the PCRA court with having denied him due process of law by allegedly failing to refer to transcripts of his criminal trial prior to denying his PCRA petition. Specifically, Appellant states that support for this claim lies in the docket sheet, which shows trial transcripts were transmitted well after the certified record was. This indicates, he says, that the transcripts were in storage and, thus, not available to the PCRA court at the time it conducted its review of Appellant's collateral appeal.
The PCRA court denies this allegation with the assertion in its Pa.R.A.P. 1925(a) opinion that it conducted an independent review of the entire trial record. It notes, further, that Appellant voiced no concerns during PCRA proceedings that the record was incomplete in any way, and it denounces this claim as nothing more than an undeveloped allegation unsupported by the record and unpreserved with a timely objection while the PCRA court retained jurisdiction over the matter. For its part, the Commonwealth notes that "[t]he Court of Common Pleas' website indicates that the notes of testimony from defendant's trial were uploaded on November 13, 2009, and October 8, 2009, respectively." Appellee's brief at 8.
Our review of the record substantiates the PCRA court's response, as both its Order and Opinion of May 14, 2015, dismissing all but one of Appellant's PCRA claims and its Pa.R.A.P. 1925(a) Opinion of September 22, 2015, are replete with references and accurate pinpoint citations to notes of testimony from Appellant's trial. We, therefore, reject Appellant's vaguely presented, facial attack on the PCRA court's review of his petition as unsupported by the record.
Appellant's next claim, related to his first, alludes to allegedly critical trial evidence that he claims the PCRA court either misconstrued or altogether ignored to his prejudice. Appellant predicates this argument on an assertion that the PCRA court committed legal error by analyzing his ineffective assistance of counsel claims in a light most favorable to the Commonwealth as verdict winner. Evidence of this error, Appellant maintains, is seen where the PCRA court concludes that "five eyewitnesses testified that they heard gunshots and saw [Appellant], wearing a red, white, and blue jacket, run from the victim's car or run through the park immediately after the shots were fired[.]" Order Dismissing PCRA Claims, filed May 14, 2015 at 5. In fact, Appellant posits, the witnesses did not testify uniformly to this effect, but, instead, provided somewhat varying accounts of a young man wearing a red, white, and blue jacket—similar to the jacket worn by Appellant that night--running away from the scene and through a nearby park, with only Ronnetta Williams and Tanisha Woods identifying the man as Appellant. Such inconsistencies, Appellant maintains, undermined proof of identity at trial.
Initially, we agree with the Commonwealth's reply that Appellant has waived this issue by failing to raise it in his Pa.R.A.P. 1925(b) statement. Apparently, Appellant intends this claim to provide the substance and detail to his first claim, which was raised in his Rule 1925(b) statement but in such a vague and nonspecific fashion that it left the PCRA court unable to surmise what portion of the trial record it had allegedly overlooked or misconstrued. We observe that, generally,
issues not raised in a Rule 1925(b) statement will be deemed waived for review. An appellant's concise statement must properly specify the error to be addressed on appeal. In other words, the Rule 1925(b) statement must be "specific enough for the trial court to identify and address the issue [an appellant] wishe[s] to raise on appeal." Commonwealth v. Reeves , 907 A.2d 1, 2 (Pa.Super. 2006), appeal denied , 591 Pa. 712, 919 A.2d 956 (2007). "[A][c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all." Id. The court's review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Thus, if a concise statement is too vague, the court may find waiver.Commonwealth v. Hansley , 24 A.3d 410, 415 (Pa.Super. 2011) (some internal citations omitted).
Moreover, even if we were to review the claim, we would find it without merit. Initially, Appellant misapprehends our standard and scope of review in a collateral appeal, for this Court analyzes PCRA appeals "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa.Super. 2012); see also Spotz , 84 A.3d 294, 311 (Pa. 2014) ("The 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 prevailing party at the trial level.").
Put another way, this Court reviews appeals from the denial of collateral relief under the actual prejudice standard, not the less stringent harmless error standard. See Spotz , supra at 315, 320. Therefore, this Court's review of the PCRA court's order
need not and does not accept Appellant's "version of the facts." [] (emphasis omitted).Commonwealth v. Charleston , 94 A.3d 1012, 1025-26 (Pa.Super. 2014) (citation omitted). Viewed in a light most favorable to the Commonwealth as verdict winner, eyewitness testimony at trial clearly implicated Appellant as the man who shot the victim and fled. Accordingly, Appellant cannot prevail on his claim that the PCRA court prejudicially mischaracterized the trial record.
In his third issue, Appellant argues that trial counsel rendered ineffective assistance of counsel for failing to conduct a pre-trial interview of Anthony Woods, who was at the Bar on the night of the shooting. According to Appellant, Mr. Woods would have proved a valuable witness because he denied ever having seen Appellant shoot Randolph or chasing Appellant through the nearby park immediately after the shooting as the prosecution said he did through statements given by Woods' sister and other eyewitnesses. This testimony would have been critical, Appellant maintains, because the jury specifically asked the court during its deliberations why the man who chased the shooter was not brought in to testify. N.T. 6/1/09 at 133. At the PCRA hearing, Mr. Woods testified that he was inside the Bar when he heard gunshots and stayed with Randolph until emergency response arrived.
Appellant contends that the PCRA court erroneously credited Tanisha Woods with testifying that she saw her brother chasing Appellant after the shooting, when, in fact, this story was "something concocted by the detectives and inserted into a statement." Appellant's brief at 29. At trial, Tanisha Woods testified as follows:
Q: After you heard the gunshots where did you go?N.T. 5/28/09 at 166-67. Friend and neighbor Ronnetta Williams also identified Anthony Woods as the man chasing Appellant after the shooting. N.T. at 76-77. At the PCRA hearing, Tanisha Woods confirmed she called her brother back while he was chasing the shooting suspect, although she now said she could not have identified Appellant as the man whom her brother was chasing. N.T. 5/14/15 at 61-66. The PCRA court, however, deemed incredible Tanisha Woods' recanting of the identification she made of Appellant at both the investigation scene and at trial.
A [by Tanisha Woods]:[She got a phone call and walked one block up from the shooting].
Q: At some point when you were around that area, did you see your brother?
A: Uh-huh.
Q: What was he doing?
A: Running across the park.
Q: Was he chasing someone?
A: Yeah.
Q: Who was he chasing?
A: Malik.
Q: Do you see Malik in court today?
A: Yes.
Q: Can you point him out?
A: [Indicating, by point of finger, the defendant]
Q: What did you do when you saw your brother chasing Malik?
A: I called my brother back.
Q: Why did you call your brother back?
***
A: I didn't want my brother to get hurt.
Q: Did your brother listen to you and did he stop chasing?
A: Yes.
When raising a claim of ineffectiveness for the failure to call a potential witness, a petitioner satisfies the performance and prejudice requirements of the [ineffectiveness] test by establishing that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial. To demonstrate [ ] prejudice, a petitioner must show how the uncalled witnesses' testimony would have been beneficial under the circumstances of the case. Thus, counsel will not be found ineffective for failing to call a witness unless the petitioner can show that the witness's testimony would have been helpful to the defense. A failure to call a witness is not per se ineffective assistance of counsel[,] for such decision usually involves matters of trial strategy.Commonwealth v. Sneed , 45 A.3d 1096, 1108-09 (Pa. 2012) (citations and quotation marks omitted).
At the PCRA hearing, Anthony Woods was adamant that he knew nothing about the shooting other than seeing Randolph covered in blood in the aftermath. He denied seeing the shooting, knowing who committed it, and chasing the suspect on the night it happened. He testified that he made no attempt to learn anything about who shot his good friend in the many years that passed between the shooting and the day of his PCRA testimony. He testified that he would have appeared as a trial witness if he had been subpoenaed, but the sum and substance of his testimony would have been that he knew nothing.
Appellant has not sufficiently demonstrated that this testimony could have substantially aided his defense such that counsel's failure to interview Woods prejudiced him at trial. Woods' testimony did not exculpate Appellant; it simply removed himself from every aspect of the shooting of Ramone Randolph. By repeatedly disclaiming any knowledge of who committed the shooting or who may have pursued the shooter immediately afterward, Woods established only that a pre-trial interview of him would have been fruitless, as his statement had little to no probative value. Indeed, Appellant fails to demonstrate how Anthony Woods' almost reflexive denial of knowledge, as exhibited at the PCRA hearing, would have impeached the credibility of the many eyewitness accounts naming Appellant as the man wearing the blue, red, and white jacket who ran from the scene carrying a gun. This claim, therefore, lacks merit.
In Appellant's fourth and final enumerated question presented, he raises seven additional allegations of trial counsel's ineffective assistance both individually and collectively. They include: (1) a reiteration of counsel's failure to conduct an investigation including the failure to interview Anthony Woods; (2) counsel's failure to play a recording of the "9-1-1" call in which the caller suggests there is more than one shooter when she says "they're outside shooting. The bar just let out, and they're ju. . .it's like the OK corral out there."; (3) counsel's failure to lodge a hearsay objection to the introduction of the autopsy report; (4) counsel's failure to object to the Commonwealth's calling a witness to provide prior inconsistent statements of some eyewitnesses who proved reluctant to testify—presumptively one of the detectives, though the brief fails to identify the witness or where in the notes of testimony his objectionable testimony appears; (5) counsel's failure to object to a conviction based solely on unsworn testimony; (6) counsel's failure to object to the trial court's instruction (not provided in the brief), which "merge[d] premeditation and deliberation into one synonymous lump"; (7) a second reiteration of counsel's ineffective failure to interview Anthony Woods; and (8) a claim that all the above instances of alleged ineffective assistance, when considered collectively, would have prejudiced Appellant.
In its Rule 1925(a) opinion, the PCRA court addresses each individual claim of ineffective assistance of counsel and rejects it on first or second prong grounds, save for the autopsy-based claim, which the court determined could not have prejudiced Appellant. See PCRA Court Opinion at 9-22. After careful review of the record, we concur with the PCRA court's cogent and comprehensive expression of rationale in dismissing these claims and, accordingly, we adopt its opinion in this regard.
With respect to Appellant's claim of cumulative prejudice, we note that the jurisprudence of this Commonwealth has recognized:
We have often held that no number of failed claims may collectively warrant relief if they fail to do so individually. However, we have clarified that this principle applies to claims that fail because of lack of merit or arguable merit. When the failure of individual claims is grounded in lack of prejudice, then the cumulative prejudice from those individual claims may properly be assessed.Commonwealth v. Spotz , 18 A.3d 244, 320-321 (Pa. 2011) (citations and quotation marks omitted). Significantly, however, there is no prejudice to aggregate in the present case, for the PCRA court resolved only one issue with resort to the prejudice prong and concluded there was no prejudice at all—a disposition with which we agree.
Order is Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/11/2016
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