Opinion
J-S85018-16 No. 3689 EDA 2015
01-10-2017
COMMONWEALTH OF PENNSYLVANIA v. KEITH DEVINE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order December 1, 2015 in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014318-2007 BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J. MEMORANDUM BY RANSOM, J.:
Appellant, Keith Devine, pro se appeals from the December 1, 2015 order dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On April 29, 2009, the Honorable Jeffrey P. Minehart, sitting as trial court without a jury, found Appellant guilty of third degree murder, criminal conspiracy, and two counts of aggravated assault. On June 2, 2010, Appellant received concurrent sentences of twelve and one-half to twenty-five years of incarceration on the murder charge, ten to twenty years of incarceration on the conspiracy, and two sentences of ten to twenty years of incarceration for the aggravated assault charges. See Notes of Testimony (N.T.), 6/2/10, at 32-33. Appellant was given credit for time served. Id. at 34.
18 Pa.C.S. §§ 2502(c), 903(a)(1), and 2702(a), respectively.
The PCRA court's opinion misstates the date of Appellant's sentencing hearing. PCRA Court Opinion, 3/1/16, at 1.
Thereafter, Appellant filed a post sentence motion, which was denied. On August 5, 2011, this Court affirmed Appellant's judgement of sentence and on May 1, 2012, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Devine , 26 A.3d 1139 (Pa. Super 2011), appeal denied, 42 A.3d 1059 (Pa. 2012).
On June 6, 2012, Appellant timely filed a pro se petition seeking PCRA relief. Counsel was appointed and subsequently submitted a no-merit letter pursuant to Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988), and a motion to withdraw. Appellant filed a series of pleadings in response to PCRA counsel's Finley letter. On October 26, 2015, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing, citing that Appellant's counsel found his petition was without merit. Appellant timely filed a response. On December 1, 2015, the court dismissed Appellant's petition.
Appellant timely appealed pro se and filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued a responsive opinion.
Appellant raises the following issues for our review:
1. THE POST CONVICTION [C]OURT ERRED WHEN IT DENIED THE [APPELLANT] RELIEF PURSUANT TO HIS AMENDED PCRA PETITION, BY ERRONEOUSLY RULING IT "UNTIMELY" PURSUANT
TO [§] 9545(B), AND BY WHOLESALE ADOPTION OF PCRA [C]OUNSEL'S "NO MERIT LETTER" IN LIEU OF FILING A POST CONVICTION RELIEF ACT OPINION, WHICH WAS A CLEAR ABDICATION OF THE [C]OURT'S DUTY; AND WHERE THE [APPELLANT] WELL PLED, AND WOULD HAVE BEEN ABLE TO PROVE, THAT HE WAS ENTITLED TO SUBSTANTIVE RELIEF IN THE FORM OF A NEW TRIAL AS THE RESULT OF:
2. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT UNDER THE UNITED STATES CONSTITUTION FOR COUNSEL'S FAILURE TO OBJECT TO THE [ADMISSIBILITY] OF UNAVAILABLE WITNESS, KENDALL STERNS, [INADMISSIBLE] PRELIMINARY HEARING NOTES OF TESTIMONY INTRODUCED AT PETITIONER'S TRIAL.
3. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT UNDER THE UNITED STATES CONSTITUTION WHEN TRIAL COUNSEL "STIPULATED" TO THE MEDICAL RECORDS OF THE GUN SHOT VICTIMS DEPRIVING PETITIONER OF HIS RIGHT TO CONFRONT WITNESSES UNDER THE COMPULSORY PROCESS.
4. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE PENNSYLVANIA CONSTITUTION AND THE UNITED STATES CONSTITUTION FOR TRIAL COUNSEL'S FAILURE TO REQUEST A SEVERANCE MOTION UNDER THE EXCEPTION ENUMERATED IN PA.CRIM.P.[]579.
5. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT UNDER THE UNITED STATES CONSTITUTION FOR TRIAL COUNSEL'S FAILURE TO OBJECT TO THE INTRODUCTION OF NON-TESTIFYING CO-DEFENDANT REDACTED STATEMENTS.
6. THE PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT UNDER THE UNITED STATES CONSTITUTION FOR TRIAL COUNSEL'S FAILURE TO OBJECT AND MOVE FOR A MISTRIAL,
WHEREIN THE COMMONWEALTH SOUGHT TO INTRODUCE IRRELEVANT TESTIMONIAL EVIDENCE REGARDING [A] PRIOR BAD ACT THAT ALSO CONSTITUTED A BRADY VIOLATION.Appellant's Brief at vi-vii (some capitalization added for consistency).
7. PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER BOTH ARTICLE I § 9 OF THE PENNSYLVANIA CONSTITUTION AND THE SIXTH AMENDMENT UNDER THE UNITED STATES CONSTITUTION FOR COUNSEL'S FAILURE TO OBJECT AND SUPPRESS THE STATEMENT OF OFFICER FLANNERY COUPLED WITH COUNSEL'S INEFFECTIVENESS FOR FAILING TO OBJECT TO THE PROSECUTOR'S UNTIMELY DISCLOSURE OF SAID STATEMENT.
8. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RENDERED A GUILTY VERDICT OF THE THIRD DEGREE IS DEFINED BY EXCLUSION[] AT TITLE 18[]PA.C.S.A. SECTION 2502.
9. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO OBJECT TO THE SPEEDY TRIAL AND DUE PROCESS VIOLATION WHEN THERE WAS AN UNNECESSARY DELAY IN SENTENCE IN VIOLATION OF PA.R.CRIM.P.[]704.
This Court's standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. See Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). We afford the court's factual findings deference unless there is no support for them in the certified record. Commonwealth v. Brown , 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson , 995 A.2d 1184, 1189 (Pa. Super. 2010)).
On appeal, Appellant raises nine issues for our review, the majority of which allege ineffective assistance of trial counsel. We have reviewed the certified record, the briefs of the parties, the applicable law, and the well-reasoned opinion authored by the Honorable Jeffrey P. Minehart of the Court of Common Pleas of Philadelphia County, filed March 1, 2016. We conclude that Judge Minehart's comprehensive opinion is dispositive of the issues presented in this appeal. Accordingly, we adopt the opinion as our own for purposes of further appellate review and affirm the order denying Appellant's PCRA petition on that basis.
On October 17, 2016, the Commonwealth of Pennsylvania untimely filed a brief as well as an application for relief asking this Court to accept its brief as timely filed.
Commonwealth's Application for Relief granted; Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/10/2017
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