Opinion
J-S32019-15 No. 1654 WDA 2014
08-06-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ANTHONY SHYRONE MORROW, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order of September 11, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000816-2011
BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ. MEMORANDUM BY OLSON, J.:
Appellant, Anthony S. Morrow, appeals pro se from the order entered on September 11, 2014, dismissing his first petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The PCRA court granted appointed counsel's petition to withdraw from further representation pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley 550 A.2d 213 (Pa. Super. 1988) (en banc).
We briefly summarize the facts and procedural history of this case as follows. Appellant shot his cousin in a crowded bar in Erie, Pennsylvania on December 31, 2010. Thereafter, on November 17, 2011, a jury convicted Appellant of attempted homicide, aggravated assault, and possession of an instrument of crime. On January 17, 2012, the trial court sentenced Appellant to 20 to 40 years of incarceration for aggravated assault with a consecutive term of one to five years of incarceration for possessing an instrument of crime. Appellant's aggravated assault conviction merged with his attempted murder conviction for sentencing purposes. This Court affirmed Appellant's judgment of sentence in an unpublished memorandum filed on March 19, 2013. See Commonwealth v. Morrow , 69 A.3d 1296 (Pa. Super. 2013) (unpublished memorandum). Our Supreme Court denied further review. See Commonwealth v. Morrow , 78 A.3d 1090 (Pa. 2013).
18 Pa.C.S.A. §§ 901, 2702, and 907, respectively.
On July 2, 2014, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel by order dated July 18, 2014. Despite the appointment of counsel, Appellant filed pro se amended PCRA petitions on August 1, 2014 and August 12, 2014. PCRA counsel filed a no-merit letter and petition for leave of court to withdraw as counsel pursuant to Turner/Finley on August 13, 2014. On August 15, 2014, the PCRA court sent Appellant notice of its intent to dismiss his PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. On that same date, the PCRA court entered an order granting counsel's petition to withdraw as counsel. On September 2, 2014, Appellant filed a pro se motion to amend and supplement his pro se PCRA petition. He filed a similar request on September 4, 2014. On September 4, 2014, Appellant also filed an objection to the PCRA court's intent to dismiss his PCRA petition without a hearing. The PCRA court denied Appellant's PCRA petition by order entered on September 11, 2014, after considering all of Appellant's various pro se and counseled filings. This timely appeal followed.
Appellant filed a pro se notice of appeal on September 25, 2014. On October 28, 2014, the PCRA court filed an order specifying it would rely on its August 15, 2014 opinion and September 11, 2014 order for its rationale regarding the issues raised on appeal.
On appeal, Appellant presents the following issues for our review:
I. Did P.C.R.A. counsel render ineffective assistance by failing to amend/supplement Appellant's pro se P.C.R.A. petition developing trial and [appellate] counsel's ineffectiveness claims?Appellant's Brief at 5 (complete capitalization and suggested answers omitted).
II. Did the P.C.R.A. court err[] by failing to appoint counsel to amend/supplement Appellant's pro se filings before dismissing the petition without a hearing?
III. Did the P.C.R.A. court commit error when P.C.R.A. counsel's no merit letter and the P.C.R.A. court's opinion failed to meet [the] Turner/Finley standard on dismissal of [the] petition without [a] hearing?
IV. Was [Appellant] denied due process of law by collateral counsel's failure to present [appellate] counsel's ineffectiveness?
Our standard of review is well-settled:
In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is supported by the record and free of legal error. Commonwealth v. Rainey , 928 A.2d 215, 223 (Pa. 2007). To be entitled to PCRA relief, an appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2); his claims have not been previously litigated or waived, id. § 9543(a)(3); and the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic, or tactical decision by counsel. Id. § 9543(a)(4). An issue is previously litigated if the highest appellate court in which the appellant could have had review as a matter of right has ruled on the merits of the issue. Id. § 9544(a)(2). An issue is waived if appellant could have raised it but failed to do so before trial, at trial, on appeal or in a prior state postconviction proceeding. Id. § 9544(b).Commonwealth v. Montalvo , 114 A.3d 401, 409-410 (Pa. 2015) (quotations and brackets omitted).
In order to obtain relief on a claim of ineffectiveness of counsel, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington , 466 U.S. 668 (1984). In Pennsylvania, we have applied the Strickland test by requiring that a petitioner establish that (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. Commonwealth v. Pierce , 786 A.2d 203, 213 (Pa. 2001). In other words, prejudice is assessed in terms of whether the petitioner has shown that the demonstrated ineffectiveness sufficiently undermines confidence in the verdict. Commonwealth v. Fletcher , 896 A.2d 508, 516 n.10 (Pa. 2006). Counsel is presumed to have rendered effective assistance, and, if a claim fails under any required element of the Strickland test, the court may dismiss the claim on that basis. Commonwealth v. Ali , 10 A.3d 282, 291 (Pa. 2010).
In his first issue presented, Appellant claims "that by demonstrating meritorious trial counsel ineffective assistance claims, [he] will establish PCRA counsel['s] unprofessional conduct, by failing to properly review the record[.]" Appellant's Brief at 14. He contends that trial counsel was ineffective for: (1) not developing and presenting evidence that would have impeached the credibility of the Commonwealth's key witnesses; (2) not challenging the identification process utilized by investigators as impermissibly tainted; (3) failing to conduct a fingerprint analysis of the bullet shell casing found at the scene of the crime, and; (4) failing to request a jury instruction pursuant to Commonwealth v. Kloiber , 106 A.2d 820 (Pa. 1954). Appellant's Brief at 12-24.
Initially, we examine the first sub-part to Appellant's opening issue. Appellant challenges the testimony of Raymond Brothers and argues two general themes: (1) the prosecutor engaged in misconduct in failing to investigate or correct inconsistencies in Brothers' testimony; and, (2) trial counsel was ineffective in failing to seek suppression of Brothers' testimony based upon alleged inconsistencies.
This issue has morphed slightly in the various pro se and counseled filings. For brevity and clarity, we have distilled the two components of Appellant's claim.
Appellant waived his underlying claim of prosecutorial misconduct by failing to raise this issue on direct appeal. See 42 Pa.C.S.A. § 9544(b) ("an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding."). Moreover, as for the ineffective assistance of counsel component to this claim, we have previously determined that counsel employs a reasonable strategy, and is thereby deemed effective, where he or she vigorously cross-examines an identification witness at trial. See Commonwealth v. Smith , 17 A.3d 873, 889 (Pa. 2011) ("By engaging in an aggressive defense based on cross-examining [an identification witness], counsel demonstrated that 'he chose a particular course of action that had some reasonable basis designed to effectuate' Appellant's interests."); Commonwealth v. Ly , 599 A.2d 613 (Pa. 1991) (defendant was not denied effective assistance of counsel by an attorney's failure to cross-examine a witness on the alleged suggestiveness of a photographic array and to instead concentrate on the quality of the witness' opportunity to observe the perpetrator of a crime.) Here, upon review of the trial transcript, defense counsel vigorously cross-examined Brothers regarding his identification of Appellant. See N.T., 11/15/2011, at 70-92. Accordingly, Appellant is not entitled to relief.
Moreover, Appellant's last three allegations of error in his first issue, as set forth above, were not presented in the initial pro se PCRA petition, amended pro se PCRA petitions, appointed counsel's Turner/Finley no-merit letter, or in response to the PCRA court's notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. A petitioner must seek leave to amend his petition after counsel has filed a Turner/Finley no-merit letter for the PCRA court to address new issues. See Commonwealth v. Rigg , 84 A.3d 1080, 1085 (Pa. Super. 2014). Appellant raises the last three sub-parts to his first issue for the first time on appeal. Hence, these issues are waived. See Commonwealth v. Santiago , 855 A.2d 682, 691 (Pa. 2004); see also Pa.R.A.P. 302(a)("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.")
In his last three enumerated issues presented, Appellant contends that PCRA counsel provided him ineffective assistance. Appellant claims PCRA counsel was ineffective because he filed the no-merit letter only 29 days after the court appointed him. Appellant's Brief at 25. He claims also that the PCRA court failed to liberally interpret his pro se filings or to allow him to amend prior deficient pro se PCRA petitions. Id. at 26. Finally, Appellant argues "PCRA counsel was ineffective for failing to recognize and properly present [a] due process violation where the evidence established it was physically and scientifically impossible for Appellant to be the individual who fired the shot that struck the victim." Id. at 27.
Here, upon review, counsel complied with the following provisions, as required:
Turner/Finley counsel must review the case zealously. Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa. Super. 2007). There is no timing requirement. PCRA counsel complied with the mandates for withdrawal and we discern no error by the PCRA court in permitting it.
Counsel must also send to the petitioner: (1) a copy of the "no-merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
We remind Appellant, "[a]lthough this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. To the contrary, any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing." Commonwealth v. Adams , 882 A.2d 496, 498 (Pa. Super. 2005). Moreover, while we carefully examined all of the various filings in this case, pro se and counseled alike, "Pennsylvania has a policy against 'hybrid' representation, that is, [courts] typically do not consider the merits of pro se briefs or motions filed by counseled defendants." Commonwealth v. Spotz , 99 A.3d 866, 914 (Pa. 2014). "This system assumes honest and responsible lawyers." Id. Upon review, PCRA counsel's Turner/Finley no-merit letter closely tracked the issues Appellant initially presented. Appellant does not point to additional issues that he directed counsel to raise, but that counsel failed to raise. Hence, we fail to see how an alleged refusal to permit amendment precluded Appellant from raising a meritorious claim.
PCRA counsel's ineffectiveness was raised in Appellant's response to the PCRA court's notice pursuant to Pa.R.Crim.P. 907 and, thus, is preserved for our review. See Commonwealth v. Ousley , 21 A.3d 1238, 1245 (Pa. Super. 2011) (Appellant must raise a claim of PCRA counsel's ineffectiveness and inadequacy of his no-merit letter when the matter was still before the PCRA court.) Upon review of Appellant's pro se response to Rule 907 notice, however, Appellant merely reiterates the issues he presented in his earlier pro se filings. He then claims that PCRA counsel misapprehended and misled the PCRA court regarding those issues. As stated before, PCRA counsel's Turner/Finley no-merit letter closely tracked the issues Appellant initially presented.
Appellant consistently maintained that he could not be found guilty because it was physically and scientifically impossible based upon the trajectory of the bullet and his position in the bar. PCRA counsel addressed this claim in his Turner/Finley no-merit letter. A prior panel of this Court explored this precise issue in the memorandum decision issued on direct appeal. Therein, Appellant argued that his location at the crime scene and the trajectory of the victim's bullet wound were incompatible and, thus, the incontrovertible physical facts doctrine applied. See Commonwealth v. Morrow , 69 A.3d 1296 (Pa. Super. 2013) (unpublished memorandum) at 5. On direct appeal, this Court held that Appellant could not invoke the incontrovertible physical facts doctrine where expert conclusions depended on the estimates of the distances and speed of moving objects. Id. Thus, this issue was previously litigated. See 42 Pa.C.S.A. § 9544(a)(2) ("an 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."). Thus, we discern no merit to Appellant's claims of PCRA counsel ineffectiveness.
Finally, we note that Appellant argued below that trial counsel was ineffective for failing to: (1) request clarification of the jury instruction regarding criminal attempt; and, (2) argue that a spontaneous shooting does not support a specific intent to kill. See Turner/Finley No-merit Letter, 8/12/2014, at 7-8. Appellant abandoned these issues on appeal and, thus, we deem them waived. See Commonwealth v. Steele , 961 A.2d 786, 806 (Pa. 2008) (failure to meaningfully discuss and apply the governing ineffectiveness standard renders claims waived).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2015