Opinion
J-S34021-17 No. 172 EDA 2016
08-16-2017
COMMONWEALTH OF PENNSYLVANIA v. JAMES COPELAND Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Dated December 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1007631-1999 BEFORE: BOWES, J., SOLANO, J., and PLATT, J. MEMORANDUM BY SOLANO, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, James Copeland, appeals pro se from the order denying his petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
In a prior appeal, we summarized the procedural background of this case as follows:
Appellant's first jury trial occurred in 2000, but that jury was unable to reach a verdict. His second trial was held in 2002, and that jury found Appellant guilty of two counts of first degree murder and one count of carrying a firearm without a license. In 2006, however, this Court vacated Appellant's sentence and reversed his convictions due to an erroneous jury instruction on alibi. Appellant was then tried for a third time in 2011. Following his third trial, the subject of the instant appeal, Appellant was again convicted of two counts of first degree murder and one count of carrying a firearm without a license.
The trial court sentenced Appellant to two consecutive life terms of imprisonment and no further penalty for the firearm conviction.Commonwealth v. Copeland , 81 A.3d 75 (Pa. Super. 2013) (unpublished memorandum at 1). This Court affirmed Appellant's judgment of sentence. Id. Appellant sought relief with the Pennsylvania Supreme Court, but his petition for allowance of appeal was denied on December 18, 2013. Commonwealth v. Copeland , 82 A.3d 1053 (Pa. 2013).
On April 22, 2014, Appellant filed the underlying PCRA petition pro se. The PCRA court appointed counsel on January 15, 2015. Counsel filed a Turner / Finley no-merit letter on June 5, 2015, along with a motion to withdraw as counsel. On July 20, 2015, Appellant filed a pro se "Opposition/Response to Finley Letter"; on September 10, 2015, Appellant filed a pro se amended PCRA petition. On September 16, 2015, the PCRA Court issued notice of its intent to dismiss Appellant's petition pursuant to Pa.R.Crim.P. 907. On September 26, 2015, Appellant filed a pro se response, amended PCRA petition, and "Objection to Counsel's Finley Letter." Appellant's counsel filed a response to Appellant's pro se amended PCRA petition on November 6, 2015. On November 19, 2015, the PCRA court filed another notice of intent to dismiss Appellant's petition pursuant to Pa.R.Crim.P. 907. On November 30, 2015, Appellant filed a pro se "Objection and Counterstatement to the Court's Notice of Intent to Dismiss Pursuant to Pennsylvania Rules of Criminal Procedure 907 with an Addendum to Amend, Raise and Incorporate Prejudice and Cumulative Error into Original PCRA." On December 18, 2015, the PCRA court dismissed Appellant's PCRA petition and granted counsel's motion to withdraw. Appellant, acting pro se, filed this timely appeal.
Appellant's petition was timely because it was filed within a year of his sentence becoming final. See 42 Pa.C.S. § 9545(b). Appellant's sentence became final on March 18, 2014, when the 90-day period for filing a writ of certiorari with the United States Supreme Court expired. See U.S. Sup. Ct. R. 13. Therefore, Appellant had until March 18, 2015 to file a timely PCRA petition.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Finley v. Pennsylvania , 550 A.2d 213 (1987) (en banc).
Appellant presents four claims of trial counsel's ineffectiveness:
1. Appellant was denied effective assistance of counsel, as guaranteed under the U.S. and Pennsylvania Constitutions, when trial counsel failed to object after the trial judge was substituted before a verdict was recorded; thus violating Pa.R.Crim.P. 601, Presence of Judge, law of case doctrine, and the coordinate jurisdiction rule.
2. Appellant was denied effective assistance of counsel, as guaranteed under the U.S. and Pennsylvania Constitutions, when trial counsel failed to object to inadmissible testimonial hearsay in the form of autopsy reports testified to by the Commonwealth's medical examiner, inadmissible fabricated ballistics evidence, and the testimony of Dereck Cary who was incarcerated at the time of the events he testified about, therefore he could not have witnessed the events he states he saw.
3. Appellant was denied effective assistance of counsel, as guaranteed under the U.S. and Pennsylvania Constitutions, when trial counsel failed to object after the trial judge neglected to instruct the jurors about the use of a written charge, in violation of Pa.R.Crim.P. 646, Materials Permitted in Possession of Jurors.
4. Appellant was denied effective assistance of counsel, as guaranteed under the U.S. and Pennsylvania Constitutions, when trial counsel erred in advising [A]ppellant not to take the stand.Appellant's Brief at 3-4.
In reviewing the propriety of the PCRA court's order denying Appellant relief, we are limited to ascertaining whether the evidence supports the determination of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Payne , 794 A.2d 902, 905 (Pa. Super. 2002), appeal denied , 808 A.2d 571 (Pa. 2002). We defer to the findings of the PCRA court, which will not be disturbed unless they have no support in the certified record. Id. In addition, to be entitled to relief under the PCRA, Appellant must plead and prove by a preponderance of the evidence that the conviction or sentence arose from one or more of the errors enumerated in Section 9543(a)(2) of the PCRA. One such error is "[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. § 9543(a)(2)(ii).
Instantly, all four of Appellant's issues challenge the effectiveness of trial counsel. The law presumes trial counsel has rendered effective assistance. Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa. Super. 2010). The burden of demonstrating ineffectiveness rests on Appellant as the petitioner. Id. To satisfy this burden, the petitioner must plead and prove that: (1) the underlying claim is of arguable merit; (2) counsel lacked a reasonable basis for taking the actions that are claimed to have been ineffective; and (3) the ineffectiveness of counsel caused petitioner prejudice. See Commonwealth v. Pierce , 527 A.2d 973, 975 (Pa. 1987). To demonstrate prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Commonwealth v. King , 57 A.3d 607, 613 (Pa. 2012) (quotation marks and citation omitted). If a petitioner fails to prove by a preponderance of the evidence any of the Pierce prongs, the court need not address the remaining prongs. Commonwealth v. Fitzgerald , 979 A.2d 908, 911 (Pa. Super. 2009), appeal denied , 990 A.2d 727 (Pa. 2010). Where the underlying claim is meritless, "the derivative claim of ineffective assistance of counsel for failing to object has no arguable merit." Commonwealth v. Spotz , 47 A.3d 63, 122 (Pa. 2012). "[C]ounsel cannot be considered ineffective for failing to pursue a meritless claim." Commonwealth v. Lopez , 739 A.2d 485, 495 (Pa. 1999), cert. denied , 530 U.S. 1206 (2000).
Consistent with the foregoing legal authority, we have reviewed the record and conclude that Appellant's claims of trial counsel ineffectiveness do not warrant relief. The Honorable Steven R. Geroff, sitting as the PCRA court, has ably addressed Appellant's four claims, referencing prevailing statutory and case law, as well as the evidence presented at trial. The PCRA court explained: (1) although substitution of the trial judge during jury deliberations occurred in violation of Pa.R.Crim.P. 601, Appellant was not prejudiced; (2) there is no arguable merit to Appellant's claims regarding the admission of testimony from Dr. Gulino, the Chief Medical Examiner for the City and County of Philadelphia, the ballistics evidence from Detective John Finor, and previously recorded testimony of Derrick Cary; (3) Appellant was not prejudiced by trial counsel's failure to object when the trial court did not follow Pa.R.Crim.P. 646 and instruct the jurors about materials they were permitted to possess; and (4) trial counsel had a reasonable basis for advising Appellant not to testify on his own behalf due to impeachment concerns, and Appellant was not prejudiced by his failure to testify because his alibi evidence was presented through another witness. Accordingly, we adopt the PCRA court's opinion in affirming the order denying Appellant post-conviction relief. The parties are instructed to attach a copy of the June 21, 2016 opinion to any future filings.
This is the first issue presented in Appellant's brief, yet he did not raise it until he filed his pro se amended PCRA petition on September 10, 2015. In response to the filing, PCRA counsel noted, "petitioner is not entitled to review of this claim because he did not seek or obtain permission to file an amended petition. See Pa.R.Crim.P. 905; Commonwealth v. Rykard , 55 A.3d 1177, 1192 (Pa. Super. 2012)." PCRA Counsel's Response, 11/6/15, at 1, n1. PCRA counsel also stated:
Although it is clear that [Rule 601] was violated . . . [Appellant] is not entitled to any relief because he did not and cannot prove that it is likely that a different verdict would have resulted had trial counsel proffered an objection. . . . Because the jury was given information it earlier had been exposed to [the jury was provided with portions of two witnesses' police statements that previously had been introduced into evidence], no prejudice occurred. This is especially so because [Appellant] has not shown that the jury was unduly influenced by the statements and the Superior Court noted in its opinion affirming the judgment of sentence [that] the evidence was more than sufficient to support the verdict.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/16/2017
Id. at 2.