Opinion
596 WDA 2023 856 WDA 2023 J-S10004-24
09-04-2024
COMMONWEALTH OF PENNSYLVANIA v. LEE BOOZER, Appellant COMMONWEALTH OF PENNSYLVANIA v. LEE BOOZER, Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered March 28, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006519-2017, CP-02-CR-0008072-2018
Benjamin D. Kohler, Esq.
BEFORE: OLSON, J., KING, J., and LANE, J.
MEMORANDUM
OLSON, J.
Appellant, Lee Boozer, appeals from an order entered in the Criminal Division of the Court of Common Pleas of Allegheny County on March 28, 2023 that denied his petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On June 30, 2017, the Commonwealth charged Appellant with one count each of criminal homicide (18 Pa.C.S.A. § 2501(a)), robbery (18 Pa.C.S.A. § 3701(a)(1)(i)), criminal attempt - homicide (18 Pa.C.S.A. §§ 901(a) and 2501(a)), aggravated assault (18 Pa.C.S.A. § 2702(a)(1)), and carrying a firearm without a license (18 Pa.C.S.A. § 6106(a)(1)). The charges arose from the fatal, convenience store shooting of Darryl Terry and the non-fatal shooting of Susan Wagner in the Sheraden neighborhood of the City of Pittsburgh.
At the conclusion of trial on June 21, 2018, a jury found Appellant guilty of second-degree murder (18 Pa.C.S.A. § 2502(b)), attempted murder, robbery, and aggravated assault. The trial court sentenced Appellant to life imprisonment without parole for second-degree murder, followed by a consecutive term of nine to 18 years' imprisonment for aggravated assault. This Court affirmed Appellant's judgment of sentence in an unpublished memorandum filed on March 6, 2020, and our Supreme Court denied further review on December 22, 2020. See Commonwealth v. Boozer, 2020 WL 1079250 (Pa. Super. 2020) (non-precedential decision), appeal denied, 242 A.3d 1289 (Pa. 2020).
Appellant filed a pro se petition under the PCRA on May 3, 2021, and the PCRA court appointed counsel on July 22, 2021. Thereafter, appointed counsel filed a no-merit letter together with a request to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On October 6, 2021, the PCRA court granted counsel's request to withdraw and, pursuant to Pa.R.Crim.P. 907, issued notice of its intent to dismiss Appellant's petition without a hearing. After the PCRA court issued its Rule 907 notice, the judge then presiding over Appellant's petition for collateral relief retired from the bench and adjudication of Appellant's petition passed to another jurist. The newly-assigned judge dismissed Appellant's petition by order entered on March 28, 2023. This appeal followed.
Appellant filed a pro se notice of appeal on May 22, 2023, which was facially untimely. According to the PCRA court's docket, however, the March 28, 2023 order that dismissed Appellant's petition was served on Appellant's former PCRA counsel, who had already been granted leave to withdraw. There is no indication on either docket which suggests that the dismissal order was served on Appellant. See Pa.R.Crim.P. 114(C)(2)(c) (trial court docket entries shall reflect the date an order is served); see also Pa.R.Crim.P. 114(B)(1) ("A copy of any order or court notice promptly shall be served on each party's attorney, or the party if unrepresented."). "Where the trial court docket in a criminal case does not indicate service on a party or the date of service, we will not quash the appeal or require further proceedings. Rather, we will treat the time in which to take an appeal as never having started to run and treat the appeal as timely." Commonwealth v. Midgley, 289 A.3d 1111, 1117 (Pa. Super. 2023). Pursuant to Midgley, we shall treat the instant appeal as timely filed. Additionally, Appellant originally filed a single notice of appeal listing two trial court docket numbers. Although this submission implicates the rule announced in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), where our Supreme Court held that appellants needed to file separate notices of appeal when a single order resolved issues arising on more than one trial court docket, subsequent developments have allowed greater flexibility in addressing this situation. In Commonwealth v. Young, 265 A.3d 462 (Pa. 2021), the Supreme Court held that quashal was not mandatory where an appellant failed to file separate notices of appeal in such circumstances. Moreover, effective May 18, 2023, Pa.R.A.P. 902 was amended to provide that while "[a] notice of appeal must be filed in each docket in which [an] order has been entered," Pa.R.A.P. 902(a), "the failure of a party to comply with the requirements stated in subdivision (a) does not affect the validity of the appeal, but the appeal is subject to such action as the appellate court deems appropriate. Such action may include, but is not limited to, remand of the matter to the trial court so that the omitted procedural step may be taken." Pa.R.A.P. 902(a) and (b)(1). In our discretion, we shall proceed to the merits of this appeal without a remand to correct any omitted procedural steps.
Appellant's brief lists five questions for our review.
Did the [trial] court commit reversible error when it refused to recognize [Appellant's] right to represent himself when it was clear in the record that after a probing examination by the court, [Appellant] knowingly, intelligently, and voluntarily waived his right to counsel[?]
Did the [trial] court commit reversible error when it refused to recognize an in-court line up shown to Susan Wagner [as] extremely suggestive and prejudicial[?]
Did the [trial] court commit reversible error when it permitted Detective [James] McGee prior to Sharon Long's testimony to instruct Long to point [Appellant] out and say it was him that she drove away from the [crime] scene[?]
Did the [trial] court [err] by allowing into evidence a prior statement of Matthew Sherrell who testified that he did not remember the prior statement and did not want to participate in the trial [in violation of] Pennsylvania Rule of Evidence 804[?]
Did the [trial] court err when admitting the "sunglasses" into evidence when the Commonwealth could not establish a proper chain of custody[?Appellant's Brief at 1.
We conclude that Appellant has waived review of his fifth claim for at least two reasons. First, Appellant has not offered any argument to support his challenge to the admission of the sunglasses into evidence at trial. See Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006) (explaining that this Court will not consider issues that are not fully developed in the appellant's brief). Second, non-constitutional claims of trial court evidentiary errors are not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2) (listing grounds for which collateral relief may be sought). Accordingly, Appellant's fifth claim is unreviewable, and we shall not refer to it further.
We review an order that dismissed a petition for collateral relief to determine whether the PCRA court's ruling was supported by the record and free of legal error. Commonwealth v. Hannibal, 156 A.3d 197, 206 (Pa. 2014) (citations omitted). Our standard of review of a PCRA court's legal conclusions is de novo. Id.
To be entitled to PCRA relief, a petitioner must, among other things, show that his claims have not been previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An issue is previously litigated if "the highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S.A. § 9544(a)(2).
After careful review, we agree with the Commonwealth that, within the context of Appellant's direct appeal, this Court ruled on the merits of each claim Appellant has addressed in the brief he submitted in this appeal. See Boozer, 2020 WL 1079250, at *4-8 (analyzing and rejecting the substance of each of the four claims developed by Appellant in this collateral appeal). Because Appellant is statutorily precluded from obtaining relief on claims that have previously been litigated and rejected on direct appeal, the PCRA court correctly dismissed Appellant's petition without a hearing.
The PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied "'there are no genuine issues concerning any material fact, the [petitioner] is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings.'" Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013) (quotations omitted); Pa.R.Crim.P. 909(B)(2). "To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Roney, 79 A.3d at 604-05, quoting Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004). We discern no abuse of discretion in the denial of a hearing in this case.
Accordingly, we shall affirm the court's dismissal of Appellant's PCRA claims without a hearing.
Order affirmed.
Judgment Entered,