Opinion
J-S52031-18 No. 447 MDA 2018
11-21-2018
COMMONWEALTH OF PENNSYLVANIA, Appellee v. FABIAN ALEXANDER COOK, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 12, 2018 in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004747-2008 BEFORE: BENDER, P.J.E., MCLAUGHLIN, J. and STRASSBURGER, J. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Fabian Alexander Cook (Appellant) appeals from the February 12, 2018 order dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Just before midnight on September 7, 2008, Dimitri Francois and Julio Arroyo (collectively, the victims) encountered Joseph Caston on a street in Reading, Pennsylvania. Caston appeared ill and in need of assistance. As the victims began to assist Caston, Appellant and Richard Lopez approached. Appellant pointed a handgun at Arroyo's head and forced the victims to the ground. Appellant, Caston, and Lopez took various items from the victims, including a book bag, an iPod, two cell phones, and a gold chain, before fleeing on foot.
The victims called police to report the armed robbery from a payphone before chasing after their assailants. Officer Dinger responded to the armed robbery call and encountered Francois, who reported that the assailants were close by. Francois entered Officer Dinger's marked police vehicle and directed him towards the vicinity of the robbery. Francois informed Officer Dinger that he had spotted three men with the stolen book bag. When Officer Dinger stopped his vehicle near the three men, Appellant took off running. Officer Dinger, along with Officer McClure, another officer who responded to the scene as back-up, chased Appellant on foot. Officer McClure caught up with Appellant and ordered him to get on the ground before handcuffing Appellant and conducting a pat-down. After Appellant stood up, he conducted a second pat-down, this time including a search of Appellant's pockets. Officer McClure found a cell phone and gold chain in Appellant's pocket but returned them to the pocket, not realizing at the time that they were the victims' stolen property. The officers then detained Appellant in the back of a patrol vehicle.
While Appellant was in the patrol vehicle, Francois informed the officers that Appellant was the person who held the gun and robbed him at gunpoint. The officers then placed Appellant under arrest. During the search incident to the arrest, the officers again discovered the victims' gold chain and cell phone. After Appellant was arrested, the other victim, Arroyo identified Appellant at the scene as being one of the robbers.
After Appellant was charged with various crimes, Paul Yessler, Esquire, of the public defenders' office, was appointed to represent Appellant. Following a two-day jury trial on February 12-13, 2009, Appellant was convicted of one count each of robbery, possessing instruments of crime, terroristic threats, recklessly endangering another person (REAP), and conspiracy to commit robbery.
Appellant requested to proceed pro se at sentencing. Following a waiver-of-counsel hearing, the trial court permitted Appellant to proceed pro se with Attorney Yessler as stand-by counsel. On February 19, 2009, Appellant was sentenced to an aggregate term of 13 to 55 years of incarceration. After Appellant pro se filed a post-sentence motion alleging the ineffectiveness of Attorney Yessler, the trial court permitted Attorney Yessler to withdraw as stand-by counsel and denied Appellant's post-sentence motion.
Appellant pro se filed a notice of appeal, and appellate counsel was appointed. On December 15, 2009, this Court affirmed Appellant's sentence in part and vacated in part. Commonwealth v. Cook , 990 A.2d 40 (Pa. Super. 2009) (unpublished memorandum). Because Appellant's sentence for REAP exceeded the statutory maximum, this Court remanded to the trial court for resentencing. Id. On April 26, 2010, the trial court resentenced Appellant to an aggregate term of incarceration of 13 to 53 years.
On December 27, 2010, Appellant timely filed pro se a PCRA petition. The PCRA court initially appointed Osmer Deming, Esquire to represent Appellant on appeal, but after learning that Attorney Deming represented Appellant's co-conspirator, the PCRA court permitted Attorney Deming to withdraw. On January 13, 2011, the PCRA court appointed Lara Glenn Hoffert, Esquire, to represent Appellant.
Although the PCRA court had ordered counsel to file an amended petition by March 4, 2011, the record reflects no filings from Attorney Hoffert until November 29, 2011. On that date, Attorney Hoffert filed the first of four petitions for an extension of time to file an amended petition, stating that she needed more time due to Appellant's incarceration. See Petition for Extension, 11/29/2011; Petition for Extension, 2/21/2012; Petition for Extension, 3/27/2015; Petition for Extension, 5/28/2015. The PCRA court granted Attorney Hoffert's extension requests each time. Order, 12/2/2011; Order, 2/24/2012; Order, 3/3/2015; Order 6/2/2015. Attorney Hoffert finally filed an amended PCRA petition on June 4, 2015. The record contains no reasonable explanation as to why Attorney Hoffert needed almost four and one-half years to amend the PCRA petition, or why three years elapsed between two of Attorney Hoffert's extension requests.
In the meantime, Appellant sent various pro se filings to the PCRA court, which purported to be supplements to his petition. Because Appellant was represented by Attorney Hoffert, and this Commonwealth prohibits hybrid representation, these filings were legal nullities. Commonwealth v. Williams , 151 A.3d 621, 623 (Pa. Super. 2016). The record reflects that the clerk of courts docketed the filings and forwarded them to Attorney Hoffert in accordance with Pa.R.Crim.P. 576(A)(4).
After the petition was finally amended, the Commonwealth filed a response, and a hearing was conducted on September 16, 2015. At the hearing, Appellant and Appellant's trial counsel, Attorney Yessler, testified regarding Appellant's allegations of ineffective assistance rendered by Attorney Yessler. After one extension each, Appellant filed a post-hearing brief on March 18, 2016, and the Commonwealth filed one on May 19, 2016. For reasons that are unexplained by the record, the PCRA court did not rule upon Appellant's amended PCRA petition until February 12, 2018, when it issued an order and memorandum dismissing Appellant's petition. This timely-filed appeal followed.
These lengthy delays are unacceptable. Our Supreme Court has made clear that "[t]he PCRA court [has] the ability and responsibility to manage its docket and caseload and thus has an essential role in ensuring the timely resolution of PCRA matters." Commonwealth v. Renchenski , 52 A.3d 251, 260 (Pa. 2012) (citing Commonwealth v. Porter , 35 A.3d 4, 24-25 (2012) ("[T]he court, not counsel, controls the scope, timing and pace of the proceedings below.")). Additionally, "post-conviction counsel must 'act expeditiously so as to reduce unnecessary delays and ensure the efficient administration of justice.'" Id. (citing Commonwealth v. Sneed , 45 A.3d 1096, 1104 n.11 (Pa. 2012)).
Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
On appeal, Appellant sets forth five issues for our review, which we reorder for ease of disposition.
A. Whether the PCRA court erred in denying Appellant's amended PCRA petition where trial counsel rendered ineffective assistance of counsel in failing to challenge the legality of Appellant's arrest and in not moving to suppress the physical evidence and on-scene identification evidence?Appellant's Brief at 5-6 (unnecessary capitalization and answers omitted).
B. Whether the PCRA court erred in denying Appellant's amended PCRA petition where trial counsel was ineffective for failing to request a Kloiber charge and/or cautionary instruction on the identification testimony presented at trial?
C. Whether the PCRA court erred in denying Appellant's amended PCRA petition where trial counsel was ineffective for failing to communicate sufficiently with Appellant in the course of plea bargain discussions?
D. Whether the PCRA court erred in denying Appellant's amended PCRA petition where trial counsel was ineffective for failing to object to the admission of the co-defendant's guilty plea transcript into evidence without seeking a curative instruction explaining that the co-defendant's guilty plea could not be used as substantive proof of the existence of a conspiracy or used to determine Appellant's guilt, as required by law?
E. Whether the PCRA court erred in denying Appellant's amended PCRA petition where trial counsel was ineffective for failing to object to the testimony of official court reporter Vicky Brady and, further, for failing to seek to stipulate that, if called to testify, [] Brady would confirm the accuracy and authenticity of the transcript?
Commonwealth v. Kloiber , 106 A.2d 820 (Pa. 1954) (requiring an instruction to jury to receive testimony of witness regarding identity with caution when witness did not have opportunity to clearly view defendant, equivocated in identification of defendant, or had difficulty identifying defendant in the past).
We begin with our standard of review.
This Court analyzes PCRA appeals in the light most favorable to the prevailing party at the PCRA level. Our review is limited to the findings of the PCRA court and the evidence of record and we do not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Similarly, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Finally, we may affirm a PCRA court's decision on any grounds if the record supports it.Commonwealth v. Benner , 147 A.3d 915, 919 (Pa. Super. 2016) (quoting Commonwealth v. Perry , 128 A.3d 1285, 1289 (Pa. Super. 2015)).
"[C]ounsel is presumed to be effective, and the petitioner bears the burden of proving to the contrary." Commonwealth v. Brown , ___ A.3d ___, 2018 WL 5046812, at *12 (Pa. filed Oct. 17, 2018).
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. Johnson , 179 A.3d 1105, 1114 (Pa. Super. 2018) (citations omitted). "A failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness." Commonwealth v. Daniels , 963 A.2d 409, 419 (Pa. 2009).
Following a review of the certified record and the briefs for the parties, we conclude that the opinion of the Honorable James M. Bucci thoroughly addresses Appellant's first three issues and applies the correct law to facts that are supported by the record. See PCRA Court Opinion, 3/28/2018, at 2-12, 16-18. We discern no error or abuse of discretion in the PCRA court's treatment of these issues. Therefore, we adopt the specified portions of the PCRA court's opinion of February 12, 2018, as our own and affirm the PCRA order as to these issues based upon the reasons stated therein.
The parties shall attach a copy of the PCRA court's February 12, 2018 opinion to this memorandum in the event of further proceedings.
We now turn to Appellant's final two issues. Appellant argues that Attorney Yessler was ineffective for failing to object to the admission of the guilty plea transcript of Appellant's co-defendant, Caston, without seeking a curative instruction explaining that Caston's guilty plea could not be used as substantive proof of the existence of a conspiracy or to determine Appellant's guilt. Appellant's Brief at 33-39. Similarly, he argues that Attorney Yessler should have objected to or sought to stipulate to a court reporter's testimony authenticating Caston's guilty plea transcript to avoid the introduction of cumulative evidence. Id. at 39-42.
Like Appellant, Caston was charged in connection with the armed robbery. Prior to Appellant's trial, Caston pleaded guilty to robbery and conspiracy to commit robbery. During his guilty plea colloquy, Caston implicated Appellant as being one of his co-conspirators. Specifically, Caston agreed that the Commonwealth's factual summary was accurate, which included averments that on the night of the incident, Appellant pointed a semi-automatic pistol directly at the victims, threatened to kill them, and proceeded, along with Caston and Lopez, to rob the victims. Commonwealth Exhibit 9 (N.T. of Caston's guilty plea hearing, 1/9/2009, at 4).
Despite Caston's guilty plea, Caston testified as a defense witness at Appellant's trial. In response to Attorney Yessler's questions, Caston testified that he had participated in the incident in question along with two friends named Spaz and Black, and Appellant was not involved. N.T., 2/12-13/2009, at 212-14. Caston acknowledged that he had pleaded guilty to robbery and conspiracy to commit robbery, but stated that he did not remember with whom he said he conspired at his guilty plea hearing, even after reviewing the transcript of his testimony. Id. at 209-11. As part of cross-examination, the prosecutor quoted Caston's statements in the guilty plea transcript implicating Appellant, but Caston still insisted he did not remember making such statements. Id. at 226-29.
The Commonwealth called the court reporter who transcribed the transcript from Caston's guilty plea hearing in rebuttal. During her testimony, the prosecutor requested to publish a portion of the transcript to the jury, but the record is not clear if the trial court permitted the publication because a sidebar followed and there is nothing further in the transcript regarding the request. Id. at 242. The court reporter verified the guilty plea proceeding was accurately transcribed, and read to the jury the same portion implicating Appellant that the prosecutor had read during his cross-examination of Caston. Id. at 240-44. Although the transcript was admitted as an exhibit with no objection, id. at 244, Attorney Yessler objected to its being sent to the jury room during deliberations, and the trial court sustained the objection. N.T., 2/12/2009-2/13/2009 (Closing Speeches through End of Trial), at 35.
On appeal, Appellant argues that Attorney Yessler should have requested that the trial court instruct the jury that Caston's guilty plea could not be considered as evidence of Appellant's guilt. Appellant's Brief at 36. He argues that Attorney Yessler had no reasonable basis for failing to request such an instruction and the failure "substantially increased the likelihood that he would be convicted because the jury may well have failed to find a reasonable doubt based upon their knowledge of [Caston's] guilty plea colloquy naming [Appellant] as his co-conspirator." Id. at 38. He further argues that Attorney Yessler should have objected to or sought a stipulation to the court reporter's testimony to avoid the jury's hearing Caston's statements implicating Appellant for a second time. Id. at 39-42.
This Court has held that it is error to introduce a co-defendant's plea without a cautionary instruction not to consider the plea as evidence of the defendant's guilt. Commonwealth v. Boyer , 856 A.2d 149, 155 (Pa. Super. 2004). "[T]he defendant has a right to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else." Commonwealth v. Geho , 302 A.2d 463, 465-66 (Pa. Super. 1973) (en banc) (citation omitted). "It is incumbent, therefore, upon the trial judge to give adequate and clear cautionary instructions to the jury to avoid 'guilt by association' as to the defendant being tried." Id. at 466 (citation omitted).
In the instant case, the PCRA court concedes that the trial court "may have erred" by failing to instruct the jury regarding Caston's testimony, even without counsel's request for one. PCRA Court Opinion, 3/28/2018, at 13. However, it concludes that Appellant did not demonstrate the third prong of the test for ineffectiveness of counsel because he did not prove "he was significantly prejudiced" and the outcome of the trial would have been different, because the jury was free to believe Caston's trial testimony despite his inconsistent testimony at his own plea hearing one month before the trial. Id. at 14; see also id. at 14-16 (reaching the same conclusion as to the court reporter's testimony). The PCRA court emphasized that Appellant insisted that Attorney Yessler call Caston as a witness against Attorney Yessler's advice, which resulted in the Commonwealth's introduction of the guilty plea transcript to impeach Caston's trial testimony. Id.
The fact that Appellant demanded that Attorney Yessler call Caston as a witness against counsel's advice does not fully resolve the issue of whether Attorney Yessler then rendered ineffective assistance of counsel by failing to request a cautionary instruction when the Commonwealth impeached Caston with the guilty plea transcript on cross-examination. Nor does it address whether Attorney Yessler should have objected to or sought to have stipulated to the court reporter's testimony. Nevertheless, for the reasons that follow, Appellant has not convinced us to disturb the PCRA court's dismissal of his petition.
The only claim that Appellant has preserved relates to counsel's failure to request a jury instruction upon the Commonwealth's introduction of Caston's guilty plea transcript, not the underlying decision to call Caston as a witness. See Appellant's Concise Statement, 4/2/2018, at 1; Appellant's Brief at 5.
This Court is not bound by the rationale of a PCRA court and may affirm the PCRA court's order on any basis. Commonwealth v. Wilcox , 174 A.3d 670, 674 (Pa. Super. 2017).
Even assuming arguendo that there is arguable merit to Appellant's contention that an instruction was warranted under these circumstances pursuant to Geho , Appellant's claim fails because he did not prove that he was prejudiced by counsel's failure to request a jury instruction. When confronted with the same issue, this Court in Commonwealth v. Boyer , 962 A.2d 1213 (Pa. Super. 2008), held that on PCRA review, an appellant must plead and prove a "reasonable probability that the trial outcome would have been different if a [guilt-by-association] cautionary instruction had been given." Boyer , 962 A.2d at 1215. This Court concluded that despite the admission of Boyer's confession into evidence, Boyer could not demonstrate that he was prejudiced from the failure of his counsel to request an instruction. Id.
Geho and its progeny involve situations where the jury became aware of a co-defendant's guilty plea when the co-defendant changed his plea in the middle of trial or when the Commonwealth initiated the introduction of the plea. Had Appellant not called Caston as a witness, the jury would not have been aware of the outcome of Caston's criminal charges as his case had been severed from Appellant's case prior to trial. While the Commonwealth did initiate the introduction of the plea in this case, it was on cross-examination to impeach Caston, not as part of its case-in-chief. Appellant clearly opened the door to Caston's impeachment by calling him as a witness despite Caston's implication of Appellant in his guilty plea colloquy one month prior to Appellant's trial. However, given our disposition, we need not definitively determine whether Geho applies to this scenario.
As in Boyer , there was other evidence establishing Appellant's guilt. In the instant case, the jury heard evidence that the two victims got a good look at Appellant during the robbery, later enabling them to identify Appellant at the scene and in court as the robber with the gun. N.T., 2/13/2009-2/14/2009, at 36-39, 81, 85-86, 91, 98-99, 172-78. The jury also heard testimony that Caston and Lopez participated in the robbery with Appellant, and Appellant and Caston were found with some of the victim's stolen property on the night of the incident. Id. at 91-97, 178-86. Thus, even if Attorney Yessler had requested a guilt-by-association cautionary instruction, it is not reasonably probable that the trial outcome would have been different. Likewise, even if Attorney Yessler had stipulated to or objected to the court reporter's testimony, it is not reasonably probable that the outcome would have been different. Because Appellant failed to show that he was prejudiced by the lack of an instruction or the admission of the court reporter's testimony, these issues fail.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/21/2018
Image materials not available for display.