Opinion
J-S09013-17 No. 1722 EDA 2016
02-28-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. AMIN INGRAM, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 2, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009208-2009 BEFORE: SHOGAN, STABILE, and PLATT, JJ. MEMORANDUM BY SHOGAN, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Amin Ingram, appeals from the order denying his timely first petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
This Court previously summarized the facts of the case as follows:
On March 1, 2008, Alfred Green, Tarji Kirkaldy, and Miranda Teasley congregated at 1637 Staub Street, Philadelphia, to consume drugs. Trial Ct. Op., 2/12/13, at 2. Kirkaldy had purchased marijuana from the victim in this case, David Atkins ("Victim"), who lived next door at 1639 Staub Street. Later, Kirkaldy called Appellant to purchase crack cocaine. Appellant arrived at "1637 Staub Street with a Shacore Smith, sold the crack cocaine, and then went to 1639 in order to rob" Victim. Green and Teasley watched Appellant and Smith go next door, saw Smith run from Victim's house, and then heard gunshots.
In the early morning hours of March 1, 2008, Philadelphia police officers arrived at 1639 Staub Street. Victim's son was "running down the steps in some distress," and Victim lay dead with multiple gunshots to his head and body.
Shacore Smith was declared unavailable for trial and his preliminary hearing testimony was read into evidence at trial.3 In it, he was asked about a statement he gave to homicide detectives in which he indicated that he had gone with Appellant to 1637 Staub Street, and then accompanied him next door to Victim's house, but had left just prior to the robbery and shooting. He ran home, and shortly thereafter Appellant came to his home as well and told Smith that he had shot Victim, and displayed approximately eight baggies of marijuana that he had taken from Victim's home. Appellant told Smith that he had shot Victim in front of a young boy and was not sure that Victim was dead, and then he left, returning a few minutes later to report that Victim was, in fact, dead.
3 The preliminary hearing was held on July 15, 2009, approximately three years and four months prior to trial. See N.T. Trial, 11/14/12, at 137.
Also at trial, Victim's son testified that he saw a man shoot his father, and that then the man left, only to return minutes later and sho[o]t his father's prone body in the head. He then described the police coming to his house . . . .
[Trial Ct. Op., 2/12/13,] at 2-3. We note that at the time of trial, [V]ictim's son was eleven years old, and that the shooting occurred when he was six. He testified that the man who shot his father [had] a hoodie up on his head, and that he did not see the face of shooter.
The fired cartridge casings found at the scene were 9mm in caliber, and they were found to have been fired from the same gun . . . used in the shooting. On March 25, 2008, less than a month after the murder, Appellant was found with a .380
caliber semi-automatic handgun on his person. There was no warrant for his arrest for homicide at that time, and he was released. The parties stipulated that the gun found on Appellant's person was not the weapon used in the shooting of Victim. An arrest warrant was issued for Appellant on April 10, 2008. Appellant evaded capture until December 9, 2008.
[Trial Ct. Op., 2/12/13,] at 2-3.
The case proceeded to a jury trial on November 14, 2012.
During trial, in a restroom in the Criminal Justice Center, Appellant's mother offered two prosecution witnesses, Tarji Kirkaldy and Miranda Teasley, money in order to induce them not to identify Appellant as the shooter.
Commonwealth v. Ingram , 93 A.3d 521, 3435 EDA 2012 (Pa. Super. filed December 31, 2013) (unpublished memorandum) (some internal citations omitted).
Id. at 3.
The jury found Appellant guilty of first-degree murder, robbery of Victim's marijuana, possession of an instrument of crime, and carrying a firearm without a license.4 The trial court immediately imposed a mandatory life imprisonment sentence for first-degree murder and concurrent sentences on the remaining offenses. Appellant filed a timely post-sentence motion, which was denied.
4 18 Pa.C.S. §§ [2502, 3701,] 907(a), 6106(a)(1).
Appellant filed an appeal to this Court, and we affirmed the judgment of sentence. Ingram , 93 A.3d 521. The Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Ingram , 94 A.3d 1008 (Pa. 2014).
As noted, Appellant filed a timely pro se PCRA petition on October 30, 2014. The PCRA court appointed counsel, who filed an amended petition on January 13, 2016. The Commonwealth filed a motion to dismiss on March 14, 2016, and the PCRA court entered its notice of intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907 on April 21, 2016. On June 2, 2016, the PCRA court denied relief and filed an opinion. Appellant filed a timely appeal to this Court. The PCRA court did not order the filing of a Pa.R.A.P. 1925(b) statement.
Appellant raises the following single issue on appeal:
I. Was appellate defense counsel ineffective when counsel failed to raise the prompt/speedy trial issue on appeal from the judgment of sentence when trial defense counsel preserved this issue in the trial court and [the] record shows that the Commonwealth was responsible for 850 days for the delay of trial?Appellant's Brief at 2.
When reviewing the propriety of an order denying PCRA relief, this Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. Commonwealth v. Robinson , 139 A.3d 178, 185 (Pa. 2016). The PCRA court's findings will not be disturbed unless there is no support for them in the certified record. Commonwealth v. Lippert , 85 A.3d 1095, 1100 (Pa. Super. 2014). Moreover, "[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary." Commonwealth v. Jones , 942 A.2d 903, 906 (Pa. Super. 2008) (quoting Commonwealth v. Barbosa , 819 A.2d 81 (Pa. Super. 2003)). "[S]uch a decision is within the discretion of the PCRA court and will not be overturned absent an abuse of discretion." Commonwealth v. Mason , 130 A.3d 601, 617 (Pa. 2015).
Appellant is alleging direct-appeal counsel's ineffective assistance for failure to raise a Pa.R.Crim.P. 600 issue on direct appeal. Appellant's Brief at 6-10; Amended PCRA Petition, 1/13/16. To plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act. Commonwealth v. Stewart , 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). A claim of ineffectiveness will be denied if the petitioner's evidence fails to meet any one of these prongs. Commonwealth v. Martin , 5 A.3d 177, 183 (Pa. 2010). Counsel is presumed to have rendered effective assistance of counsel. Commonwealth v. Montalvo , 114 A.3d 401, 410 (Pa. 2015). We have explained that trial counsel cannot be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Loner , 836 A.2d 125, 132 (Pa. Super. 2003) (en banc). "We need not analyze the prongs of an ineffectiveness claim in any particular order. Rather, we may discuss first any prong that an appellant cannot satisfy under the prevailing law and the applicable facts and circumstances of the case." Commonwealth v. Johnson , 139 A.3d 1257, 1272 (Pa. 2016) (citing Commonwealth v. Albrecht , 720 A.2d 693, 701 (Pa. 1998)).
The Pennsylvania Supreme Court rescinded former Pa.R.Crim.P. 600, in effect at the time of Appellant's pretrial incarceration, on October 1, 2012, and replaced it with current Rule 600, effective July 1, 2013. At the time of Appellant's pretrial incarceration, the rule required that a defendant be brought to trial within 365 days of filing a complaint. Commonwealth v. Solano , 906 A.2d 1180 (Pa. 2006).
The four issues raised in Appellant's pro se PCRA petition were the exact issues raised and rejected by this Court in Appellant's direct appeal, Ingram , 93 A.3d 521, and thus, were previously litigated. 42 Pa.C.S. § 9544(a)(2) ("[A]n issue has been previously litigated if . . . the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue . . . ."
When determining whether Rule 600 was violated, the court first calculates the mechanical run date, which is three hundred sixty-five days after the complaint is filed. Commonwealth v. Murray , 879 A.2d 309, 313 (Pa. Super. 2005). The court then subtracts all excludable and excusable time to arrive at an adjusted run date. Id.
Appellant's basis for his claim is that the Commonwealth's continuances due to the unavailability of its key witness should not have been excludable time. Thus, he asserts the issue had arguable merit, appellate counsel lacked any reasonable basis for abandoning the issue on appeal, and Appellant was prejudiced by appellate counsel's failure. Appellant's Brief at 9-10. While Appellant merely reasserts his theory regarding why his motion to dismiss under Rule 600 should have been granted, he fails to challenge, undermine, or assail the PCRA court's reasoning.
We have carefully reviewed the opinion of the PCRA court, considered the arguments of the parties, and evaluated the record in this case. The PCRA court cogently and succinctly explained why the issue lacked merit, and it supported its decision with relevant law. The record evidence supports the PCRA court's conclusions; thus, we will not disturb them. Lippert , 85 A.3d at 1100. Accordingly, appellate counsel cannot be found ineffective for failing to raise the meritless Rule 600 claim. Moreover, because the PCRA court could determine from the record that a genuine issue of material fact did not exist, an evidentiary hearing was not necessary. Mason , 130 A.3d at 617. Therefore, we rely on the June 2, 2016 opinion of the PCRA court and adopt it as our own.
We direct the parties to attach a copy of the PCRA court opinion in the event of further proceedings in this matter.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/28/2017
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